86-year-old Durham singer sues X-Factor for show's tactics

Staff WriterSeptember 9, 2011 

  • Hy Marks, a World War II veteran who had his own radio show during the war, has been singing his whole life. He sang professionally as a child, and after the war, got a record deal with a subsidiary of jazz label Jubilee Records.

    Marks gave up his musical dreams to pursue a career in education, but he never stopped singing. While a school principal in New York, Marks sang as a cantor. After his retirement, he performed on cruise ships and at Yiddish festivals in Durham, where and his wife moved about 16 years ago. He also represents the USO, singing at military events at Durham Bulls baseball games and for troops returning from Iraq and Afghanistan.
  • — The Marks family suit also claims that one of the show’s producers instructed Hy Marks and Stephen Marks to fabricate an argument over who was the most talented. They say they did so in a funny “Abbott and Costello”-type routine, at which point the cameras were stopped and they were instructed to argue in a more forceful manner. They say they did so, but in a satirical way. Stephen Marks said when he later referenced the staged argument to the producer who orchestrated it, she claimed the argument was not staged but real.

    — Stephen Marks also said his after-performance comments were coached by an “X-Factor” employee. Each time he mentioned their first three successful auditions, he said he was told, “this was your first and only audition.” Marks said in the suit that he was asked “loaded” and “confrontational” questions on camera.

— Hy Marks has sung his heart out in front of military veterans, synagogue worshipers and baseball fans at Durham Bulls games.

But Marks, an 86-year-old Durham resident, says a performance this summer before notorious TV singing judge Simon Cowell wasn't his best. And for that, he blames the producers of Cowell's new Fox show, "The X-Factor."

Marks, a retired school principal who sings the national anthem for USO events at Durham Bulls games, is suing Fox Broadcasting Co., "The X-Factor" and Cowell. The lawsuit claims that producers made Marks tape promotional spots in extreme heat before his tryout in front of "X-Factor" judges. As a result, Marks said, he was disoriented and fumbled his way through the audition.

He's asking for another chance.

Marks and his son Stephen, 54, auditioned separately in April for the show. Each made it through three preliminary Miami auditions before being called back to try out for the judges in June. They were among only 50 performers out of a pool of about 8,500 to move on.

At the June audition, producers pounced on the novelty aspect of a father and son in the competition, so they asked Hy and Stephen to tape a promotional spot for the show, which premieres this month on Fox.

According to the lawsuit, filed in a Miami-Dade County court, Hy; his wife, Helen, 78; and Stephen spent several hours in 96-degree heat filming the promo - something they said other contestants were not asked to do. The three said they were driven around the BankUnited Center in a car with broken air-conditioning and were asked to walk from the car to the Center repeatedly so that cameras could get the best shots.

After that, Hy and Stephen had to go for their big audition in front of an audience and judges Cowell, Paula Abdul, Nicole Sherzinger and L.A. Reid. When the usually spry Hy Marks hit the stage to sing "God Bless America" and "There Is Nothing Like a Dame," he said, he could not even remember the ages of his wife and children. He and Stephen badly flubbed their auditions.

"They put us through a wringer," the elder Marks said. "And I was in no shape to perform by the time they got through with me."

He said the audience and two of the four judges liked his performance. But Cowell - infamous for his acerbic critiques on his previous show, "American Idol" - said he didn't think Marks could withstand the pressures of the competition, and cut him from the show.

Stephen Marks, a political consultant who also works as professional musician in Fort Lauderdale, said the physical toll of the afternoon affected his performance, too.

"I was awful, I admit that," he said. "But I wish I had explained to Simon while on stage what happened. I think he would have done the decent thing."

The family sent a letter to "The X-Factor" management on June 21, asking for another audition under more fair conditions. The lack of response prompted the lawsuit, which claims negligence, fraudulence of representation and mental anguish.

Fox spokesman Michael Fabiani said Thursday that the network has no comment.

"The X-Factor" is using a clip of Hy's audition in its advertising.

Both father and son emphasize that they aren't demanding to be added to the show - they just want another chance to audition under the same conditions as other contestants.

Barring that, the suit asks for $3 million.

brooke.cain@newsobserver.com or 919-829-4579

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