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What Are You Trying To Hide?

Wednesday, September 26th, 2012

By Brian Taylor Goldstein

I run a small management company. In addition to our commissions, we bill our artists monthly for their share of expenses (conference fees, publicity materials, etc.) One of our artists is now refusing to pay unless we provide her with an itemization of expenses. Do I have to give her one? In the past, she has always paid and never asked for an itemization before?

Do you have a written agreement with your artists that requires an itemization? I once had a manager contact me with a similar question and she was unaware that the contract she had been using for years required all reimbursable expenses to be itemized. She never did, but a savvy artist eventually called her on it.

If you have a contract that requires you to provide an itemized invoice, then you are required to do so even if the artist has never asked for one before. However, lets assume your contract doesn’t have such a requirement or…perish the thought…you don’t even have a written agreement in the first place. Why not provide an itemization anyway?

Unless you’re trying to hide something, it’s not an unreasonable request. I don’t pay my credit card bill or even a restaurant check without checking the itemized charges first. (Ok, in the interest of disclosure, I don’t do math, so I rely on my wife to check these things, but the point remains the same!) It doesn’t mean someone doesn’t trust you when they ask for an itemization. People make inadvertent mistakes and, in today’s economy, every penny counts.

I realize that preparing itemized invoices requires an additional level of record keeping and bookkeeping, but, presumably, you are already keeping track of your expenses in some fashion. Besides, when representing an artist, whether as an agent or a manager, the artist is your client. They are the ones paying for your services. If you provide an itemization and the artist still refuses to pay for reasonable expenses that were knowingly incurred on their behalf, that’s a different matter. However, in any service oriented business, a happy client is a paying client.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

Tags:agent, artist, bill, bookkeeping, Brian Taylor, contract, disclosure, Goldstein, itemization, management company, manager, reimbursable expenses, unreasonable request
Posted in Agents, Artist Management, Contracts, Law and Disorder: Performing Arts Division | Comments Closed

When You’re Right, You’re Right!

Wednesday, September 19th, 2012

By Brian Taylor Goldstein

I wonder if you would mind giving me some advice on a visa situation with one of my artists. To summarise, I represent a British artist who was commissioned to write a 7 minute piece for a university in the United States which will be premiered in 2013. The artist will be traveling to the United States around the premiere for various events, including attending concerts and also one or two workshops led by the artist. Primarily, the new piece will also be conducted by the artist himself. In the past, this artist has always held an O-1 visa to work in the United States. However, the university is insisting that, because it is a university, the artist only needs a visitor visa and they are refusing to obtain an O-1 visa for him. The university is not only paying the artist for the commission (which has already been settled through his publishers) but for his visit and performance as a conductor. Therefore, I should think we need a visa and that it’s not really possible for him to travel on the visa waiver scheme – is that correct? If so, am I right in thinking that he really should get an o-1 visa as he always has before?

Because so many legal questions involve the application of broad legal concepts to issues of specificity and nuance, its customary to qualify certain answers by saying “it depends.” That is not the case here. Based on the details you have provided, you have made this extremely easy for me: you are correct. The university is wrong. Plain and simple.

Yes, he needs an O-1 visa. No, he cannot enter and perform on the visa waiver scheme. The visa waiver program allows citizens of certain countries (including the UK) to enter the US as visitors solely using their passports and without the need of obtaining an actual visitor visa. However, they are must abide by the same rules and restrictions applicable to all visitors—namely, no work. For artists, work is not defined by payment. ANY performance of any kind or nature, even if no tickets are sold and the artist receives no fee, is, nonetheless, defined as “work” While there are, indeed, certain exceptions, they are very narrow and limited and, in this case, are inapplicable. I suspect the university is relying on a narrow exception that permits individuals to enter the US as visitors in order to give a lecture or demonstration at an educational institution and receive travel reimbursement and an honorarium. However, that is not the case here. Your artist has clearly been “hired” to conduct. The fact that he is conducting an orchestra at a university does not qualify for a visa exception any more than the fact that music is being performed at a university exempts the need for licensing it (though many erroneously believe this to be the case!). The fact that the university may have convinced other artists to perform for them without the proper visa just means these artists did not get caught. Your artist may not be so lucky.

I would direct the university to www.artistsfromabroad.org. Also, Musical America is about to unveil a special visa issue which will be jammed packed full of insights and tips on bringing foreign artists into the US. Stay tuned!

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, artistsfromabroad, Brian Taylor, exceptions, Goldstein, passports, payment, travel, university, visa waiver program, visa waiver scheme, visitor, visitor visa, waiver, work
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Visas | Comments Closed

Smile, You’re On Candid Camera!

Tuesday, September 11th, 2012

By Brian Taylor Goldstein

THIS WEEK’S BLOG IS BEING WRITTEN FROM THE MIDWEST ARTS CONFERENCE IN GRAND RAPIDS, MICHIGAN WHERE ROBYN AND I ARE TEACHING SEMINARS AND WORKSHOPS. HERE’S A SHOUT OUT TO THE INCREDIBLE STAFF AT ARTS MIDWEST!! And now back to our regularly scheduled blog…

We re-booked a popular classical artist to perform at our venue. In promoting the concert, we used a photograph of the artist that one of our staff took the last time the artist performed here. Then we got a nasty phone call from the artist’s manager saying that we could only use “approved” photographs. Is this true? Since we took the photograph in the first place, don’t we own it?

Personally, without some significant costuming and airbrushing available, I hate having my photograph taken. Fortunately, I’m not a public figure who needs to attract audiences or sell albums. However, for those who are, there’s a reason agents and managers want to control what images are used to promote their artists: not everyone looks good in a candid photo. And it’s not merely a question of vanity. Singers and musicians often contort themselves into considerably unnatural—and unappealing—positions to achieve just the right note or sound. How an artist looks during a performance, or even in candid shots taken backstage after a performance or during a donor reception, doesn’t necessarily reflect how the artist wants to be seen professionally. And that’s really the point. At the end of the day, it’s the artist’s decision, not yours.

Just because you took the photograph, doesn’t mean you have the right to use it. Legally, there are two sets of rights inherent in every photograph: the rights of the photographer and the rights of the person being photographed. In order to use a photograph for commercial purposes (which includes marketing and publicity), you need to have permission from both. Most booking contracts require the manager or agent to approve all photographs precisely so that the artist can control their publicity and image, but even if the contract doesn’t require this, you still have no right to use anyone’s image for publicity or marketing without their permission.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agent, artist, Brian Taylor, commercial purposes, contract, Goldstein, image, marketing, photo, photograph, photographer, publicity
Posted in Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Presenters, Venues | Comments Closed

Listen To Your Mother and Get It In Writing!

Wednesday, September 5th, 2012

By Brian Taylor Goldstein

Can you answer this question for us? My soon to be son-in-law is a musician. He has written and recorded many songs, and is producing his first CD. One of the songs on the CD, he had a female friend sing with him. If he plans to put this song on his CD, doesn’t he need some sort of written permission or release from her?

Congratulations! It sounds like you’re not only gaining a son-in-law, but your son-in-law is gaining a manager. You are absolutely correct. Even though your son-in-law may have may have written the song and paid for the recording, his friend owns the rights to her performance. There needs to be something in writing confirming that your son-in-law has her permission to record her performance for the CD and distribute copies. As most everyone in the arts world would rather suffer a paper cut than deal with paperwork, its very common for musicians and others to take the position that, if a person is aware that they are being recorded, then permission is “assumed” or “implied” and no formal contract or agreement is needed. While this is technically true, an implied license can also be revoked at any time. This means that she could wait until the CD was a big commercial success, revoke her license, and use the threat of a copyright infringement lawsuit to negotiate for a large royalty or payment.

While written permission or a release is better than nothing, if he really wants to make sure there are no future problems, the written permission (also called a “license”) needs to specify that it is “irrevocable, perpetual, and worldwide.” Even better, skip the license and have her confirm that she is assigning (ie: granting) all rights and ownership in the recording of her performance to him. Either way, in order for the “writing” to be enforceable as contract, it also needs to confirm what she is getting in exchange for the license or assignment. A flat fee? Royalties from sales of the CD? Even if she agreed to do the recording out of friendship in exchange for nothing, the writing should confirm that she will be given credit and acknowledgement “in exchange” for the assignment or license. While this may seem like an unnecessary formality for a first CD, it’s far wiser to plan for success rather than have it derailed by someone else’s plan.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:Brian Taylor, contract, copyright, copyright infringement, Goldstein, license, manager, music, musician, ownership, permission, recording, release, royalties
Posted in Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings | Comments Closed

Non-Profit and Tax-exempt: What’s In a Name?

Wednesday, August 29th, 2012

By Robyn Guilliams

What is the difference between a “non-profit” organization and a “tax-exempt” organization? I hear these terms used interchangeably – do they mean the same thing?

Great question! These terms do not mean the same thing. All tax-exempt organizations are non-profits; however, not all non-profits are tax exempt.

When an organization wishes to be classified as “non-profit”, it must register with a state – usually the state in which it operates. Every state has different classifications for non-profit organizations. For instance, New York and some other states have a type of business classified as a “Not-For-Profit Corporation.” Other states have corporations that are classified as “Non Stock Corporations.” What all of these corporations have in common is that they do not have any owner, and the business of the organization is run by a board of directors.

Once an organization formally registers as a non-profit company with the state, the organization can request federal tax-exempt status with the Internal Revenue Service. If granted tax-exempt status by the IRS, an organization will not have to pay federal taxes on its income (provided that income is related to the organization’s “charitable mission”), and donations made to the organization generally will be tax deductible for the donor.

States often have additional requirements for organizations to qualify for tax-exempt status. Some states will grant tax-exempt status automatically to organizations that have been granted federal tax-exempt status, while others require the organization to complete a separate request.

Some businesses elect to become non-profits without also being tax exempt. They do so for many strategic, marketing, and organizational reasons. However, the important take-away here is that not all non-profits are tax exempt. A tax exempt non-profit is subject to far greater government oversight and operational restrictions than a regular non-profit. Unless a non-profit organization is granted tax exempt status by the IRS, that organization is subject to the same tax and filing obligations as any other business!

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:charitable mission, corporation, federal tax exempt status, federal taxes, irs, Non-Profits, profit company, Robyn Guilliams, tax exempt organizations, tax exempt status
Posted in Arts Management, For Profits, Law and Disorder: Performing Arts Division, Non-Profits, Presenters, Taxes, Venues | Comments Closed

Can I Cancel If They Perform In My Backyard?

Wednesday, August 22nd, 2012

By Brian Taylor Goldstein

Dear Law & Disorder:

After we booked an artist, the artist’s agent booked them to perform two weeks later at another venue 25 miles away from us. It’s a smaller venue that charges less for tickets than we do. This will impact our sales. Can we cancel? I was told that exclusivity was industry standard.

Was there a booking contract? What did it say? If the contract provided your venue with a period of exclusivity or restrictions on when and where the artist could perform before or after your engagement, then the artist might be in breach of the contract. (Remember, unless the agent is acting as a producer, your contract is between you and the artist.) On the other hand, if there was no booking agreement or if the booking agreement didn’t provide you with any period of exclusivity or restrictions, then you probably would not have the right to cancel. If you fail to negotiate something (a commission rate, cancellation terms, licensing rights, etc.) “industry standard” will not provide the missing terms. Unvoiced assumptions and expectations do not become contractual arguments. To the contrary, if you fail to negotiate something, the missing terms remain missing and unenforceable.

I’ve said it before, but it always bears repeating: there is no such thing as “industry standard”—least of all in the performing arts industry. In this case, in my personal opinion, I would certainly consider it unprofessional for either an artist or an agent to intentionally book an engagement that directly competes with an already booked engagement, and I suspect I am not alone in that perspective. However, I also suspect it would be far from easy to obtain a consensus as to whether or not a smaller venue 25 miles away necessarily constitutes a “competing venue.” Regardless, contractual terms are not written by majority opinion. Neither “common industry practice” nor my own personal opinions rise to the level of contractual obligations. Without a contractual requirement specifically prohibiting the artist from performing within two weeks at another venue 25 miles away from you, you would be the one in breach of the contract should you decide to cancel for that reason alone. It would also be equally inappropriate for you to coerce or otherwise suggest that the artist breach his or her contract with the other venue in order to accommodate your concerns.

My advice would be for all parties concerned to consider an appropriate adjustment of some kind. Perhaps there is still time for one of the dates to be moved, or there can be a reduced engagement fee, or even a joint marketing strategy. Assuming that this was an unanticipated outcome by all of the parties, the primary objective at this point needs to be to preserve the relationships between the parties and find a way for both engagements at both venues to continue as planned.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agent, artist, assumptions, booking agreement, breach, Brian Taylor, cancellation, cancellation terms, contract, contractual obligations, contractual terms, exclusivity, Goldstein
Posted in Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Presenters, Venues | Comments Closed

The 30% Withholding Tax Isn’t Just For Performers!

Wednesday, August 15th, 2012

By Robyn Guilliams

Dear Law & Disorder Team –

We run an international competition that takes place in a different country every two years and each time we have to learn new lessons around taxation. What is the Withholding Tax situation around jury services or the teaching of master classes for non-US resident jury members? Are they also subject to the 30% Nonresident Alien (NRA) Withholding Tax or not?

As anyone in the U.S. who does business internationally will discover, dealing with tax withholding and other tax laws in foreign countries can be a drag, to say the least. Every country has its own rules and procedures, and it’s often difficult to figure out those rules ahead of time, especially if you don’t speak the language. I feel your pain!

As for the U.S. requirements for NRA tax withholding, the general rule is that any time a payment is made to a nonresident individual or business for services provided in the U.S., the 30% NRA withholding rule applies (i.e., you must withhold 30% of the gross payment toward the NRA’s possible tax liability.) This rule applies not only to performers, but to ANYONE performing services in the U.S. – including those serving on competition juries and teaching master classes.

There may be an exemption from U.S. tax and withholding for a nonresident, however, if the nonresident meets certain requirements. Generally, those requirements are as follows:

There must be a tax treaty between the U.S. and the nonresident’s country of residence (NOT their country of citizenship):
There must be a provision in that particular treaty that would exempt the nonresident from tax in the U.S.; and
The nonresident individual or business must have a U.S. tax identification number, and complete the appropriate form to claim the treaty exemption, and exempt themselves from withholding.

Whether or not a nonresident qualifies for a treaty exemption is very fact-specific. And it’s important to be aware that each treaty is different! Just because the U.S. tax treaty with France might exempt a French individual from tax for performing as a juror at a U.S. competition under certain circumstances doesn’t mean that the U.S. treaty with the U.K. would provide the identical exemption.

Fortunately, the IRS publishes a guide to understanding tax treaties, which goes by the catchy title of “Publication 901 – U.S. Tax Treaties.” (You can download this publication here: http://www.irs.gov/pub/irs-pdf/p901.pdf.) Table 2, which begins on page 39 of the current version of Pub. 901, includes a summary of the rules that apply to nonresident individuals who are performing services in the U.S., country by country. When using this Table, be sure to review all of the information relevant to a particular country, including the footnotes! (It’s all relevant to whether or not a withholding exemption applies.)

Finally, remember that a nonresident individual wishing to claim an exemption from withholding MUST have either a Social Security Number (SSN) or a U.S. Individual Tax Identification Number (ITIN) to do so.

And, as always, if you have any questions about visas or taxes for nonresidents working in the U.S., be sure to check out the Artists from Abroad website (www.artistsfromabroad.org) which has all of the information you could ever need on these topics!

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:foreign countries, international competition, irs, ITIN, Robyn Guilliams, SSN, tax identification number, tax liability, tax treaties, tax withholding, withholding tax
Posted in Arts Management, Central Withholding Agreements, Law and Disorder: Performing Arts Division, Taxes, Uncategorized | Comments Closed

Can Newspapers Charge To Quote Reviews??

Wednesday, August 8th, 2012

By Brian Taylor Goldstein

Dear Law & Disorder:

I recently came across the website of an artist management agency in Europe where they had posted the following: “The press review is temporarily not available. German newspapers Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung recently started to pursue institutions and artists using texts (press reviews, interviews, commentaries etc.) published by those newspapers on their websites or in any other commercial context without having paid for them. We have been advised to remove all press quotations from our website as the same phenomenon seems to happen in other countries like Switzerland and Austria.” Is this a copyright trend that will spread to other European countries and the USA? Will agents, and artists have to start paying for the use of (press reviews, interviews, commentaries) used to promote an artists career? Also, if an American agency has press reviews, interviews, commentaries from Europeans newspapers on their websites, such as from the Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung, will these agencies be liable for payment of the use for this information, as well, as it is being used in a commercial context? (Thank you for your column on Musical America, and I also thank Ms. Challener for her leadership in including such information in the weekly email Musical America updates.)

Newspapers and magazines have always owned the exclusive rights to the articles, reviews, editorials, and interviews they publish. Just like you can’t make copies of sheet music, CDs, books, and other copyrighted materials, you cannot make copies of articles and reviews and re-post them without the owner’s permission. Even if you are not “re-selling” an article or review, anything that is used to promote, advertise, or sell a product or service (ie: an artist!) is a “commercial” use.” While “quoting” or “excerpting” a positive review is most often considered a limited “fair use”, making copies of the entire article or review is not. While it should go without saying, you also cannot “edit” or revise articles and reviews in an effort to make a bad review sound more positive. (That’s not only copyright infringement, but violates a number of other laws as well!)

The website you encountered was in response to certain German newspapers, in particular, who began making significant efforts to require anyone who wanted to copy or quote their articles or reviews to pay a licensing fee. In the United States, for the most part, most newspapers and magazines have not actively pursued agents or managers who have quoted articles and reviews on their websites to promote their artists. However, I am aware of managers and agents who have been contacted by certain publications where entire articles have been copied and made available for download. In such cases, the publication has demanded that the copy either be licensed or removed. I also know of agents and managers who have posted unlicensed images on their websites and then been contacted by the photographers demanding licensing fees.

As for the ability of an American agent to quote or copy articles from the Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung, under the applicable international copyright treaties, they could require American agents to pay as well. While I don’t necessarily see this becoming a trend among US publications, its certainly worthwhile to reflect that anytime an agent, manager, or presenter uses images, articles, videos, other materials to promote an artist or performance, there are copyright and licensing considerations that need to be taken into consideration.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agent, artist, Brian Taylor, cannot make copies, commentaries, commercial context, copy, copyright, copyright infringement, european countries, Goldstein, license, Licensing, manager, permission, photograph, quotations
Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing | Comments Closed

A Magic Blurb

Wednesday, August 1st, 2012

By Brian Taylor Goldstein

We teach classes, put on concerts and run festivals. At all of these events we take photos of the participants along with the members of our group. We want to be able to use the photos on Facebook and our website. So I am looking for a “blurb” to put in our programs and registration forms that says we have their consent to use photos of them, without having to get actual signed releases from everyone who attends our events in case we end up using their photo.

I don’t know that there is one magic “blurb” that will cover all of these scenarios. The closest, most generic thing I can think of would be: “I understand and agree that, by participating or attending this event or program, my photograph may be taken and used to market and promote other programs and performances of _____________.”

Generally, you don’t need anyone’s permission to take a crowd shot or a photograph of someone attending a public event as there is no right of privacy when people attend public events. That would allow you to put the photograph on a website or facebook. However, if you liked a particular image of a particular individual (ie: close up or head shot) so much that you wanted to feature it alone on posters, billboards, postcards, or as part of a featured publicity campaign, then you may be intruding on rights of endorsement/publicity and would need specific permission. Also, as a general rule, if you want to take the photograph or video of audience members attending a concert, you want to put a sign or placard out front stating that photographs will be taken at this performance so that, by proceeding, they can make the decision whether or not to participate. Printing a release in the program which they may or may not even read until after the concert doesn’t accomplish anything. On the other hand, if someone is filing out a registration form for a class or workshop, that’s the perfect place to put in the necessary language so that they can actually provide their consent when they sign and return the form.

Tags:audience members, Brian Taylor, crowd, endorsement, facebook, Goldstein, necessary language, participants, permission, photograph, publicity campaign, release, right of privacy
Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing | Comments Closed

What Attorneys Won’t Tell You

Wednesday, July 25th, 2012

By Brian Taylor Goldstein

I recently attended an arts conference where there was a panel discussion on music contracts. An attorney said that artists don’t really need to read or review contracts because you can always declare them null and void later and get a new contract. Is this true?

This is why 99% of most attorneys give the rest of us a bad name. No. It’s not true. That is, its bad advice. However, there are many attorneys out there who like to believe otherwise.

You may…or may not…be surprised to learn that any attorney with even the most minimal amount of skill can create some plausible “theory” on which to sue someone else. That’s all it takes to file a lawsuit in a US court: a plausible “theory.” Your theory might be the world’s dumbest theory, but everyone is entitled to his or her day in court. And, under what’s called the “American Rule”, unless there is a contract requiring the loser to pay for attorney’s fees and costs, everyone is responsible for their own attorney’s fees regardless of who wins or loses. So, unless you and I have a contract requiring the loser in a lawsuit to pay the winner’s attorney’s fees, I could technically file a lawsuit against you right now (assuming I knew who you were) and you would have to spend your own money to defend it. (If you don’t like the “American Rule”, blame George Washington. The “English Rule”, of course, is the exact opposite!)

Because of this situation, many attorneys believe that the answer to every conflict is to file a lawsuit and use that as leverage to get a better deal. The argument goes something like this: If an artist signs a contract and later wants to get out of it, just file a lawsuit claiming that the other side is in breach. Even if the artist has absolutely no legal basis for such a claim, the other side will need to hire their own attorney, file a motion, appear in court, and have the claim dismissed. As this will cost them thousands of dollars, the other side just might re-negotiate with rather than spend all that money. Here’s the catch: the artist will ALSO have to spend all that money hiring an attorney to file the lawsuit in the first place. And if you think that a large recording label, or a successful producer, or even a presenter with access to a free board attorney is simply going to roll over to avoid a lawsuit, think again. Why? Because their own attorneys will advise them to fight.

There’s another consideration, too: your reputation. One of my clients once received a letter from an attorney who represented an artist who was part of my client’s roster. Even though his contract was not up for another year, the artist wanted to be released early so he could negotiate a potentially lucrative deal directly with one of the producers we were already working with on his behalf. His lawyer raised several legally weak arguments and threatened a multi-million dollar lawsuit. After several efforts to resolve the matter ended in screaming phone calls and more threatened litigations, we decided to release the composer, even though, ultimately, I felt we would win in court. It simply wasn’t worth it. My client had other artists and business to focus on and could afford neither the money nor the time and distraction. While you may conclude that the artist got what he wanted and won, think again. There’s more: of course, we had to advise the producer that we no longer represented the artist and what had happened. As a result, the producer determined that the artist’s talents were not worth the risk of dealing with someone who sues their way out of a dispute and selected another artist for the project. It wasn’t long before word spread that this artist would sue anyone at anytime and other producers refused to work with him either. In the end, the artist’s lawyer wound up suing the artist for unpaid attorney’s fees. Not a happy ending.

If you haven’t figured out the game yet, an attorney will always advise you to file a lawsuit. However, regardless of the outcome, only the attorneys win. So, unless you have an endless supply of money, energy, time, and spirit do not play this game! Take the time to draft meaningful contracts, take the time to read them, and take the time to establish a relationship with the people you will be working with. You may not always get what you want in a negotiation, but at least you can make an informed decision by asking questions and evaluating the pros and cons of the deal before you. While there are many reasons you might agree to unfavorable terms, believing that you can sue your way out of a bad situation is not among them…unless you’re an attorney!

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, attorney, attorneys, bad advice, breach, Brian Taylor, conflict, Contracts, dispute, Goldstein, lawsuit, lawyer, legal basis, music contracts, negotiation, reputation
Posted in Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability | Comments Closed

Musical America Blogs

Archive for the ‘Law and Disorder: Performing Arts Division’ Category

What Are You Trying To Hide?

When You’re Right, You’re Right!

Smile, You’re On Candid Camera!

Listen To Your Mother and Get It In Writing!

Non-Profit and Tax-exempt: What’s In a Name?

Can I Cancel If They Perform In My Backyard?

The 30% Withholding Tax Isn’t Just For Performers!

Can Newspapers Charge To Quote Reviews??

A Magic Blurb

What Attorneys Won’t Tell You

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