Archive for the ‘Contracts’ Category

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The Lost Art of Negotiation

Thursday, June 12th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

A longtime friend who is also a very successful artist who I greatly respect, asked me to do a project with him. He sent me a contract, but it doesn’t cover things like when and how I get paid. I want to mark up the contract and suggest some language, but I also don’t want to offend him and have him think I am being too difficult to work with and ungrateful for this opportunity. Is there some specific language I can put in the contract that he won’t find offensive, but will still protect me?   

I had a client of mine call me today about a contract she had sent to a promoter who then struck out a specific term that my client needed and sent the contract back to her. Frustrated and desperate to make the deal happen, she wanted me to suggest another way to phrase the term in such a way that the promoter would agree to it. Both you and my client are asking very legitimate questions, but the answers have little to do with contracts and everything to do with business and negotiation skills.

Contracts exist to memorialize an agreement. You can’t memorialize something that doesn’t exist yet. That’s like trying to take a photograph of a place you’ve never been. Before a contract can be properly drafted, much less signed, the parties have to discuss all of the key terms. While you can certainly use a contract to begin the discussion, you can’t avoid the discussion by simply crossing out terms you don’t like and inserting the ones you do. More importantly, there are no magic words, standard terms, or compelling phrases that will take the place of the need to discuss and negotiate.

Too many people in our industry try to use a contract to avoid negotiation—most often for the very reasons you mention: they are too scared of offending the other party, of not getting the terms they need, or of losing a deal or opportunity they really want. However, if you approach a negotiation as a game of deception in which the goal is to use illusive or even deceptively simplistic language or aggressive tactics to cajole the other party into agreeing to something unreasonable or something to your advantage which they would not otherwise agree to (ie: Lawyering 101), then you most certainly should expect the other side to be offended and deserve to lose the deal. On the other hand, if the other party is offended by a legitimate expression of your concerns, sincere questions about a specific term, or proposals that would clarify something you find confusing, then its probably either a deal you don’t want in the first place or a party you don’t want to work with. Just as importantly, if someone doesn’t agree with a term you want, they are not going to agree no matter how you phrase it. Phrasing the same thing in a different way isn’t going to help either. Even if you manage to word it in such a way that they can’t tell what they are agreeing to (what a lot of people refer to as “legalese”), then you’ll have to sue them to enforce it. Instead, you’ll either need to negotiate a compromise or evaluate whether or not the deal is equally advantageous to you without that term.

I have been to many purported lectures on negotiation at arts conferences, only to find that the lecture was really just about how to get presenters to book artists. That’s important, of course, but the real art of negotiation involves far more than discussing date, time and fee. Whether it is a commission, a booking, a production, or a recording, you must discuss and negotiate not just the artistic and logistical elements, but all of those nasty and boring business elements as well—such as liability, insurance, rights, licenses, approvals, exclusivity, taxes, visas, etc. If you are unfamiliar with the necessary business elements of a deal, the time to learn them is before you negotiate, not during the process.

A negotiation does not mean you will get what you want. Rather, a negotiation is a process that allows you to evaluate whether or not you will get what you need. Some opportunities are just that—opportunities—and a good opportunity may require you to accept some risk. But without taking the time to talk and discuss, you won’t have the information you need to access that risk properly. In other words, the negotiation process will save you from disappointment and frustration later on.

As for an answer to your specific question, I would say: Protect you from what? If your “longtime friend who is also a very successful artist who [you] greatly respect” breaches your contract, are you prepared to sue him? I thought not. I suggest you call your friend and ask him when and how you get paid. Don’t ever be scared to ask a legitimate question—especially when dealing with a friend. In the bi-polar cocktail of simultaneous love and resentment we call the arts world, doing business with friends demands an even higher degree of mindful discussion than doing business with strangers.

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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 and/or posthumously.

__________________________________________________________________

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!

 

 

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Posted in Acts of God, Agents, Artist Management, Arts Management, Contracts, Copyrights, Insurance, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Presenters, Publishing, Recordings, Taxes, Touring, Venues, Visas | Comments Closed

The Hogwarts School of Contracting and Wizardry

Thursday, May 15th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

I had a signed agreement with a promoter to present my artist. The contract provided for two deposits and a final payment on the day of the performance. I worked for over a year with this promoter to put this deal together. Not only did he not pay either of the deposits, but one month before the performance, he called to say he hadn’t sold enough tickets and that it was no longer economically feasible. And he is refusing to pay the money he owes. What am I supposed to do? Sue him? Why should I have to spend the time and money to sue him when we have a signed contract? What’s the point of having a contract in the first place if its not going to protect me?

For many years now I have been climbing the stairs to my secret laboratory trying to create the self-enforcing contract. Upon anyone breaching the terms of such a contract, a magical enforcement beast will materialize, forcing the breaching party into compliance. Sadly, my efforts thus far have proven unsuccessful, resulting only in a few sparks, a bit of ectoplasm still dripping from the ceiling, and a hapless paralegal I may have inadvertently turned into a newt. Until I perfect my spells and enchantments, you’ll have to settle for the fact that contracts are only as valuable as the time, effort, and common sense that goes into them. They do not exist in a vacuum. They do not self-enforce.

The point of a contract is not to get signatures on some form or template littered with extraneous terms that everyone believes are “industry standard”, but no one really reads or understands, in the hopes that it will somehow, in and of itself, stalwartly protect you from the other party cancelling your engagement, refusing to pay, or performing any other courser of unpleasantness. Rather, the point of a contract is the opportunity it creates for you to enter into deals, negotiations, collaborations, engagements, and other relationships knowingly and intelligently. Among other things, it allows you to make sure everyone is on the same page (ie: Do you define net profits the same way I define net profits? Can I cancel if I don’t sell enough tickets?). It allows you to create benchmarks by which you can judge performance and good will (ie: Did the other party pay the deposit on time? Did the check clear?). It allows you to “test the waters” before jumping into a new relationship by first seeing if you and the other party can work together to resolve differences and challenges in the creation of the relationship in the first place.

Sometimes, having a contract can also provide you with leverage. If you can point out that the other party clearly did or didn’t do something which they clearly agreed to do or not do, that pressure alone can often be enough to force compliance. However, if the leverage doesn’t work, you are ultimately left with the sobering fact that the only way to enforce a breached contract is though a lawsuit (or arbitration, if your contract provided for that.) Even then, if you win a lawsuit, you still have to collect the money. A judgment does not automatically guarantee payment. (I’m working on a self-paying judgment, too, as soon as figure out how to change lead into gold.)

The key is not to let the situation get to the enforcement stage in the first place. While some contractual breaches are unavoidable, most are the result of one the parties ignoring warning signs or not taking advantage of the contractual process. For example, a recent client of mine negotiated the terms of an engagement which included the standard items such as dates, time, repertoire, and fees. Everyone agreed. However, when she sent the contract to the presenter, the presenter discovered that the artist expected additional costs to be paid for transportation. My client, on the other hand, discovered that the presenter wanted the artist to obtain insurance to cover all the members of his orchestra. Neither of these topics had been discovered during the initial discussions. Fortunately, both my client and the presenter took the time to read the contract. Even more fortunately, both parties scheduled a time to talk about their respective concerns, worked out compromises, re-drafted the contract, and everything worked out great. Similarly, I was recently negotiation a recording contract on behalf of an artist. When I tried to discuss certain contractual discrepancies and concerns with the other party, rather than engage in solutions, they merely insisted I should trust them and enter into the deal based on “good faith.” That made me trust them even less. My artist really wanted this deal, but I convinced them not to take the risk. In the end, we wound up finding a better deal.

In your case, if your contract provided for two deposits, and the promoter didn’t pay either one, at what point did you not realize that this train was going to jump the tracks? That’s like sending off a contract, not getting a response back from the presenter or manager, having the other party  ignore your phone calls and emails, and the pretending to be shocked to find out the deal is being cancelled…you can’t cancel what was never a deal in the first place. At the time the deadline for the first deposit came and went, that was your time to stop and evaluate whether or not to proceed. If, your professional judgment, it was worth waiting until the second deposit was due, great. However, by the time the second deposit deadline came, that should have been the time to bail. If you decided to rely solely on the contract to protect you, then you were also accepting the fact that if the presenter didn’t pay or cancelled at the last minute, you would have to enforce payment by filing a lawsuit. There are many times that rolling the dice makes legitimate business sense, but you have to accept that for what it is—gambling. Unless you want to incur legal fees and court costs, not to mention lost time, if you gamble and lose, move on.

This is inherently a risky business. Contracts allow you evaluate and, in some instances, minimalize risk, but never eliminate it. Only you can protect you. You and a little pixie dust.

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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 and/or posthumously.

__________________________________________________________________

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!

 

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Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Presenters | Comments Closed

The Invasion of the Visa Examiner Body Snatchers Continues! (aka “The Day The Visa Process Stood Still”)

Thursday, May 8th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

I recently received an RFE for a group touring the US this summer. The group is represented by a European manager who books their dates, but our US management company has previously filed petitions for them in the past, all of which have been approved without a problem. The RFE claims that I need to prove that we are not only the agent for the artists, but for each of venues on their tour. I provided an itinerary, a letter of agreement between us and the group where we are agreeing to serve as their US representatives, as well as engagement contracts confirming all the dates, including fees. This is what I have always given them before. What do they want?

For those of you who have been lucky enough not to be following along, about four months ago, the US government agency that reviews and approves visa petitions for artists, United States Citizenship and Immigration Services (USCIS), was invaded by aliens…and, by that, I do not mean non-US citizens, but something non-human. It began at the USCIS Vermont Service Center where reports indicate that in early February 2014 the bodies of several unsuspecting USCIS visa examiners spontaneously exploded into a burst of tentacles, multiple glowing eyes, and gaping orifices of dripping fangs. Shortly thereafter, their seedlings were able to infiltrate deliveries of pico de gallo sent to the USCIS California Service Center where they quickly replicated themselves, consuming the bodies of helpless visa examiners there as well. Ever since, these insidious creatures have taken over the review of O and P petitions, resulting in flurry of spurious RFE’s or Requests for Evidence (ie: prove that Lincoln Center is a distinguished venue!) and re-imagined interpretations of regulatory language and requirements (ie: for a role in a production to constitute a “lead or starring role” it must also be performed by an artist whose name alone will demonstrably increase ticket sales!)

Whether these beings are the evil spawn of a far-away galaxy offended by interpretive dance or whether they come from a death star of Blue Meanies, we don’t know. What we do know is that, among other things, USCIS has been seriously scrutinizing petitions filed by agents and managers, as well as itineraries. On a recent national conference call with USCIS representatives, there was a considerable amount of talk about concerns over “speculative” employment and making sure that artists had “confirmed engagements” and were not merely asking for visas in anticipation of future work.

As a result, agents and managers are being asked with greater frequency to provide proof of the agency relationship, including proof that they are authorized to represent both the artist as well as the presenters/venues. This can be either a written (and signed) agency or management agreement with the artists or a letter or other statement signed by the artist confirming that the artist has “appointed” the agent or manager to represent them in the United States. If the agent/manager has also booked all of the engagements (ie: the agent/manager’s name appears on each of the contracts or engagement confirmations), then such a letter of appointment appears to be appeasing the visa beasts…at least for now. However, many times either the artist has booked their own engagements directly with the presenter/venue or the engagements have been booked by a non-US agency and the US agent or manager is merely serving as the petitioner for purposes of filing the visa petition. In such cases, which appears to be your situation, USCIS is asking for proof that the US petitioner has been authorized to file the petition by the artist (or the artist’s non-US agent) as well as by the artist’s non-US agent and, in some cases, by each of the presenters/venues on the artist’s itinerary.

Based on a strict regulatory analysis, I cannot say that this is inappropriate. Rather, its just a very literal reading of certain regulations which have never been strictly enforced until now. Regardless, unless you have booked each of the artist’s engagements yourself, if there are any engagements booked directly between the artist and the venue/presenter, then you also need to include an “appointment form” from those presenters/venues authorizing you to include their engagement on the petition. If the artist has a non-US agent or manager, then you will need (1) proof of the relationship between the artist and the non-US agent and (2) proof that you have been authorized by the non-US agent to file the petition for the artist and on behalf of the engagements booked by the non-US agent. If there are any engagements booked directly by the artists, you will also need proof from the presenter/venue that you are authorized to include their date on your petition. The good news, such as it is, is that such “appointment form” does not need to be anything more elaborate that: “I have engaged [Artist] to perform for me. I hereby appoint [Petitioner] to include this engagement on the visa petition.” That’s it.

We’ve actually been doing this for a while. Whenever our management division acts as petitioner, we include appointment forms from everyone—our theory being: the more paperwork we throw into a petition, the more there’s bound to be something in there a US examiner is looking far. We apply this same theory to reviews, programs, and all other evidence as well. So far, this has worked.

As I mentioned, I have participated on several recent national conference calls with USCIS officials and, on each occasion, they have declared no knowledge of any new practices, rules, requirements, or regulatory interpretations designed to frustrate or scrutinize the O and P visa process. Instead, they claim to have helpfully appointed a panel of “performing arts experts”—three, to be exact, who, near as I can tell, have little, if any, actual practical familiarity with what we do—to help come up with suggestions to solve problems they claim do not exist. In other words, to translate this into government-speak:

There is no problem, but if there is a problem, we have appointed a panel of experts unfamiliar with the problem to help come up with solutions to address the non-existent problem which doesn’t need addressing, because there is no problem, but we promise we will make it better by focusing on fixing things that were not broken in the first place…until they were broken…but not by us.  

On second thought, perhaps these invaders aren’t from another planet after all.

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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 and/or posthumously.

__________________________________________________________________

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!

 

 

 

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Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Hypothetically Speaking About Liability

Thursday, May 1st, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

If a hypothetical rental company is hired, either by a venue or by the client using a venue, to supply the sound and/or video system for a corporate, non-profit or association event; and this hypothetical rental company is asked to provide “top 40” music to be used during “walk in”, dinner, award winner walks up to the stage, etc. where in the liability chain would this rental company be? What if the end client hands the hypothetical rental company a stack of CD’s or worse, a drive full of MP3’s and requests/insists that they be played? If “ultimately” the owner of the venue is responsible of verifying that proper licensing has been obtained but “everyone involved” is at risk of being named in a lawsuit if proper licensing has not been obtained, how does the vendor in the middle point to either the venue or the end client as the responsible parties?  Is it enough to spell out specific language in the rental agreement? <sarcasm> I know that you are, no doubt, shocked to hear that this scenario might be possible.  However, IF it were to become “common practice” among rental companies to happily play whatever they and/or their client wanted without so much as a hesitation, it would be difficult for any hypothetical rental company to compete if they were the one’s constantly harping on usage rights with their clients. </sarcasm> 

In truth, I’m less shocked by the possibility of the scenario you propose than astonished—nay, agog—by your desire to be proactive about it—even hypothetically. It’s a welcome reprieve from the “let’s not call GG Arts Law until we’ve actually been sued by Disney” approach we are more familiar with.

Merely being named in a lawsuit doesn’t mean that you will necessarily be found responsible—or, as lawyers like to say “liable.” Liability requires that you had a duty to do, or not do, something which you did or did not do. In your hypothetical, its not entirely accurate to say that “ultimately the owner of the venue is responsible for verifying that the proper licensing has been obtained.” Rather, if licensing is required, everyone involved in the performance has a duty to make sure that the proper licenses are obtained—not just the owner of the venue, but the hypothetical rental company and the rental company’s client. Its more accurate to say that, while, ultimately, the owner of the venue is more likely to get sued, everyone involved could be held responsible.

However, you are correct that the hypothetical rental company can put language in its rental agreement that says that whomever is hiring the company (either the venue itself or the person renting the venue, or both) agrees to obtain all necessary licenses and, in the event the rental company is sued and found to be liable for copyright infringement, will cover all of its legal costs and expenses, as well as any damages it might be ordered to pay. The technical term for such a clause is “indemnification and hold harmless”, but there’s no need to use magic legal terms so long as the meaning is clear. While having such a clause in its rental agreement will neither protect the hypothetical rental company from getting sued nor protect it from being liable, it will give the company a contractual basis to turn to the party that signed the rental agreement and say “you agreed to take care of this problem. Fix it!”

Even with an indemnification and hold harmless clause in its pocket, whether or not the hypothetical rental company can happily play whatever it and/or its hypothetical client wanted without so much as a hesitation really depends on the venue where the company has been hired to provide services and where such venue lies on what I call the Risk-O-Meter.  On the low end of the meter lies most for-profit venues (hotels, rental halls, restaurants, conference centers, etc) which more often than not will have obtained the necessary blanket licenses from the major performance rights organizations (ASCAP, BMI and SESAC) to permit that stack of CD’s or a drive full of MP3’s to be played. So, no worries. On the high end you will find the non-profit venues, schools, community centers, and social halls which either don’t know they are supposed to get performance licenses or incorrectly believe that because they are non-profit they are also non-commercial and are exempt from the statutes, rules, laws, and other social orders by which the rest of us must abide. (While not all commercial venues are non-profit, almost all non-profit venues are also commercial.) Your need to harp on usage rights is directly proportionate to where you lie on the Risk-O-Meter—hypothetically speaking, of course.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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 and/or posthumously.

__________________________________________________________________

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!

 

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Posted in Artist Management, Arts Management, Contracts, Copyrights, For Profits, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Recordings, Venues | Comments Closed

How Much Is That Artist In The Window?

Thursday, April 24th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

My ensemble has been approached by a composer/musician who would like them to do two days of recording for music that she is composing for a theater company. My understanding is that this theater company does quite a bit of touring. Do musicians typically get royalties each time the recording is performed or would this just be a buyout situation with the composer?

As, typically, most musicians rarely get paid what they deserve, I’d rather find a better standard.

We don’t often like to think of performing artists as a commodity, but it situations such as this that remind us why show business is a “business.” Like pricing any other product or service, it always comes down to how badly the buyer wants what you’re selling and how badly you want to sell it to them. In this case, you’ve got two things to sell: (1) the time and talent of the artists to show up for two days and perform whilst being recorded and (2) the right to use the recording of their performance. You can sell them together or separately. You can sell all of the rights or only some of the rights. You can also include any restrictions, limitations, or conditions that you feel might be beneficial to the ensemble. Unlike selling used cars, there’s no Blue Book where you can look up pre-determined values.  Nothing is standard.  Figuring out what to charge and how to charge ultimately depends on an analysis of the specific circumstances of how the recording will be used:

Will the recording be used as background music or as a featured part of the theater company’s production? Will there be other recordings by other prominent artists used during the same performances or as part of the same production? Will the theater company be using the recording for performances at commercial venues or PACs? What is the commercial potential of the production? Do they intend to use the recording to produce and sell a soundtrack or just use the recording for performances? Does being associated with this particular composer or the theater company bring any value or heightened exposure to your ensemble? Is your ensemble more interested in the exposure or the money? Would the recording be something the ensemble would like to use for its own purposes?

Personally, some of the terms I’ve negotiated myself in similar situations as yours have included:

  • Granting the rights to use the recording only for live stage performances, but not for soundtracks, CDs, or digital downloads, each of which would require additional fees and payments.
  • Granting the rights to use the recording for live stage performances except for Broadway, Off-Broadway, or 1st class runs.
  • Granting the rights to use the recording only for a specific period of time, after which, if they wanted to continue using it, they have to re-negotiate.
  • Granting the rights to use the recording in exchange for booking the artists to perform live for a specific number of performances.

Such arrangements can include, where warranted, flat fees or royalties, or a combination of both, or even a percentage of box office from each performance. You can also request that the ensemble be credited in all programs or liner notes, or request that the ensemble get the rights to use the recording for its own promotional purposes. Like any negotiation, the other side may refuse, or propose its own terms, but you need to start somewhere–and, like any good auctioneer, you never want to start the bidding too low.

While it’s certainly tempting to keep things simple and just do a buyout where you charge a flat fee consisting of the engagement fee for the performance and a fee for the rights to the recording, you may be missing out on an opportunity to get creative and explore the possibilities to look beyond the fees and maximize the potential of the entire project to benefit your ensemble.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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.

__________________________________________________________________

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!

 

 

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Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Recordings | Comments Closed

What’s The New Normal In Contract Practice?

Thursday, March 20th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

What’s the new “normal” in reviewing and exchanging contracts? We are receiving an increasing number of contracts that had been issued as PDF files coming back as word files or even revised PDF files which means I have to read every single line of the agreement (along with an original version open beside it) in order to approve what is essentially a new version of the instrument we painstakingly crafted. Isn’t the presenter obligated to sign what we send or at least tell us they are amending our contract? We scratching our heads trying to understand what constitutes the “new normal” in contract practice.

I am the last person to proclaim what is and what is not “normal”. Normal is boring. Normal lacks imagination. Normal is not what the arts are all about. Nonetheless, when it comes to contract practice, many people in our industry continue to look for rigidity in a process that is intended to be quite fluid.

When you send a contract to another party, regardless of how brilliantly or painstakingly crafted the contract may be, you are sending them a “proposal” of the terms for their review. After all, unless you’re working within the structure of a pre-negotiated collective bargaining agreement, negotiating the terms of an engagement is not merely about agreeing on the date, time, and fee.   Everything about the engagement is negotiable as well: insurance, force majeure terms, technical requirements, warranties, licenses, recording rights, approvals, publicity restrictions, exclusivity, cancellation, taxes, visas, etc.

While, as a general rule, a contract should never be presented until both sides have at least agreed to all of the most important terms, there are bound to be additional terms and requirements that were not discussed—and even if they were discussed, chances are the wording or phraseology in the contract may or may not comport with a party’s understanding of what was agreed upon. The contract is the way to present and memorialize all of the additional terms that are important to the engagement, but may not have been clearly discussed at the outset. Many people call all of these additional term “legalese” or “boilerplate” terms, but, remember, nothing is standard…everything is negotiable. Even if you find yourself in the enviable position of being able to say “take it or leave it”, no one is ever obligated to agree to anything. As a result, unless you have somehow managed to discuss and agree upon each and every term ahead of time, the presentation of a contract is often how the negotiation continues, not ends.

Both professional courtesy and common sense would suggest that, before anyone starts making contractual amendments, the party proposing or requesting such changes should bring them to the other party’s attention either by highlighting them or discussing them ahead of time. While marking up a contract with handwritten comments has long been the practice, technology makes it relatively easy to take a PDF, format it into an editable word document, and make changes. However, most word processing programs also allow you to “compare” two documents. So, rather than having to painstakingly read every single line of an agreement, you can just as easily ask your word processing program to compare the old and new versions and it will automatically highlight all of the changes for you.

Personally, because my handwriting often looks like a headless chicken ran through a puddle of ink, I love being able to make changes and edits directly to the text of a contract. However, I then use my word processing program to compare the old version with my version, rename the document, and send it to the other party with all of my proposed changes clearly marked. I also like to add a watermark that says “draft” on each page. Its only when all the terms have been agreed upon by all the parties that is time to remove the watermark, PDF the document, and get everyone to sign it.

________________________________________________________________

For additional information and resources on this and other GG_logo_for-facebooklegal 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.

__________________________________________________________________

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!

 

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Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Presenters, Venues | Comments Closed

Rattle Sabers, Not Contracts

Thursday, February 27th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

We recently had a presenter call us and cancel an engagement “due to inclement weather” because the company’s flight was canceled and they could not arrive the day before the performance as required. The company offered to fly the next day and arrive on the afternoon of the performance.  However, the presenter expressed that they were not comfortable with this because they felt the company would not arrive at the theater in time to run a tech with their team and also had the fear that the company would not arrive in time to perform. The engagement contract has a Force Majeure clause that says:

In the event that the performance of any of the covenants of this agreement on the part of the Company or the Presenter shall be prevented by…act of God, illness, physical disability, acts or regulations of public authorities or labor unions, labor difficulties, strike, war, epidemic, interruption or delay of transportation service, or any other causes beyond the reasonable control of such party, such party shall be relieved of its obligations thereunder with respect to the Performance(s) so prevented on account of such cause.  If the Performance(s) shall be prevented due to a Force Majeure event, neither the Company nor the Presenter shall be under any obligation to present the Performance at a different time, except that if the Performance(s) shall be prevented for any of the foregoing causes, the Presenter shall use its best efforts to re-engage the Company within a twenty-four (24) month period on the same terms and conditions set forth herein, subject however to Company’s availability…In the event that the performance is cancelled due to Force Majeure on the Artist’s behalf, all deposit monies will be returned to Presenter. In the event that the Presenter cancels the performance for any reason other than those described in the preceding paragraph, then the Presenter is responsible for the full fee.

Do we have to return the deposit since the company was willing to fly in the next day, but Presenter decided to cancel anyway? Can we ask for the full fee? We have not yet spoken to the Presenter, but wanted to be forearmed before we do so we can stand our ground.

“Forearmed” for what? Has the Presenter asked for the deposit back? Are you planning on initiating this “battle”? A contract is a tool, not a weapon to be rattled like a sabre. If you approach this as a “battle”, here’s how it will likely play out:

Presenter: Great to see you at APAP. Thanks for the drinks. I’m afraid we’re going to need the deposit back because the artists couldn’t get here due to weather. The force majeur was theirs.

Manager: But they were willing and able to come the next day. You didn’t want to take that risk. So, you cancelled. In fact, you owe us the rest of the performance fee. And, thanks for the birthday card. That cat was adorable.

Presenter: It’s industry standard for the deposit to be returned when there is a cancellation due to weather.

Manager:  But you cancelled and its industry standard that the artist gets paid if the presenter cancels.

Presenter: The company’s flight was cancelled because of the snow. That’s a force majeur.

Manager: The weather prevented the artist from arriving the day before the concert. They could have arrived on the day of the performance. You didn’t want them, so you cancelled and the contract says if you cancel we get to keep the deposit and you owe the full fee.

Presenter: But that’s not industry standard

Manager: It’s what’s in the contract.

Presenter: We were forced to cancel the performance and refund the tickets, which didn’t sell that well anyway. I just didn’t want to say anything about that earlier because of our good relationship. We can’t take those kinds of losses. We are a non-profit.

Manager: The artist had losses, too.  And if you weren’t selling tickets, then you should have told me sooner so I could help with the marketing. If you had marketed better, the show sells itself.

Presenter: No show sells itself. Did I mention we are a non-profit?

Manager: We can’t give the deposit back and the company can’t afford to take a loss on this tour. It’s not their fault it snowed.

Presenter: It’s not our fault either, which is why we need the deposit back.

Manager: I spoke with an attorney and we will have to turn this over to legal counsel if we have to. It not personal.

Presenter: I understand. This isn’t personal on my end either, but we have a free attorney on our board and they will sue you to get our money back…and I won’t ever hire any artist on your roster again.

Manager: Fine

Presenter: Fine

…and scene…

Unless you are dealing with the cancellation of the road tour of “Spiderman”, neither of the parties will…or should…be willing to spend the money, time, and energy necessary to sue each other, so they will just stew over this, avoid each other at conferences, and write nasty things about each other on social platforms.

The point of having an engagement agreement, or any contract, much less as force majeure clause, is to identify problems ahead of time and articulate in advance how disputes will be resolved. In your case, based on the engagement agreement, both parties knew that, in the event of snow or other unforeseeable issues, either could be facing losses they might not be able to recover. A force majeure operates like an “excuse.” It gives each party the right to cancel under certain conditions without having such cancellation become a breach. However, because it isn’t a breach, neither party is going to emerge unscathed. Someone is either going to have lost out-of-pocket costs they can’t recover, or a deposit they can’t get back, or both. However, knowing this, hopefully, allows you to budget and plan for various eventualities.

In this scenario, the phrase “due to Force Majeure on the Artist’s behalf” isn’t really defined. However, a reasonable interpretation is that the cancellation of the artist’s flight constituted a force majeur event on the part of the artists—in other words, it was their flight that was cancelled. The fact that the artists were willing to travel on the day of the performance was a reasonable solution, but it was just as reasonable for the presenter not to want to take that risk. The more important issue is that the engagement agreement requires the presenter to use its “best efforts” to try and re-book the date within the next two years. That’s the first place to start. If you can find a mutually agreeable date, problem solved—you keep the deposit and they presenter pays the balance of the fee after the next performance date. (No, you can’t ask for a higher fee if it’s the same performance!) If you can’t find a date within the next two years, then its reasonable for the artist to keep the deposit, but the presenter not to have to pay the remaining fee. “Reasonable” doesn’t mean that everyone will agree or be happy. “Reasonable” usually means that everyone walks away with less than what they wanted, but more than there were probably entitled to, which, for me, is a much better solution any day than mutually assured self-destruction.

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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.

__________________________________________________________________

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!

 

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Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Non-Profits, Presenters, Touring, Venues | Comments Closed

Gosh, That Sounds Familiar!

Thursday, February 6th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

A composer has been commissioned to write an ‘original’ work for a particular soloist or specific chamber ensemble. The commission agreement stipulates that the performing artist is granted exclusivity, giving the artist a certain period of time in which he/she has the sole right to perform the new work for a specified length of time. During that period, the composer has an opportunity to expand the work, making certain modifications and reconfiguring the piece for a different and larger group, such as a chamber orchestra or full orchestra. Can the new work, although based on the originally commissioned score, be considered sufficiently different in its new configuration, to be exempt from the exclusivity requirements, outlined in the original commission?

One of the cornerstones of English Common Law is the principal that: Everything which is not forbidden is allowed. However, this presumes that with such freedom comes the wisdom to discern that everything which is permitted is not necessarily advisable. For example, the fact that we are legally entitled to eat as many deep fried twinkies as we wish, does not necessarily mean that we should.

As we’ve discussed before in this blog, when a composer is commissioned to write a new work the mere act of paying for the work to be composed does not in and of itself convey anything to the commissioner—other than the pleasure and fulfillment of facilitating the act of creation. If the commissioner wants the rights to perform or record the work, or wants a specific artist to be able to perform or record the work, such rights must be specified in the commission agreement. Otherwise, all rights to the commissioned work are exclusively owned and controlled by the composer—including the rights to modify, amend, re-arrange, re-configure, re-orchestrate, and do anything else with the work the composer chooses.

If the commission agreement includes the right for a soloist or ensemble to perform the work for a certain period of time, then the commission agreement must also specify exactly what rights are being conveyed. Anything not specified, belongs to the composer. For example, does the soloist or ensemble have the exclusive right to perform the work as titled or can the composer grant permission for other artists to perform it under a different title? More importantly, how is the word “work” defined? Does the artist’s right to perform the “work” include the right to perform modifications, changes, edits, re-orchestrations, re-configurations, or other variations of the work? Can the artist make such changes herself or only with the composer’s permission? Even if the artist has no rights to such changes or variations, does the artist’s rights of exclusivity prohibit the composer from composing variations and re-orchestrations and permitting other artists and ensembles to perform them? It all depends on what is in the commission agreement.

I’m going to go out on a limb here and assume that the commission agreement in your “hypothetical” lacks any specific definition of “exclusivity.” Given the almost visceral fear in the arts industry of any contractual terms longer than a postage stamp, this is a reasonable assumption. That being the case, then the artist or ensemble only has exclusivity with regard to the work exactly as written and the composer is free to make re-orchestrations, variations, derivations, and arrangements and allow other artists to perform them. However, the fact that the composer is free to do so, does not necessarily mean that it is advisable.

It’s an equally reasonable assumption that the commissioner, rightly or wrongly, presumed that the exclusive right for the artist or ensemble to perform the work inherently included anything that sounded like the work. Admittedly, the commissioner should never have entered into a contract, much less allowed money to change hands, based on a presumption. However, taking advantage of either a misplaced presumption or even a contractual oversight or will not only serve to poison the composer’s reputation for future commissions, but add a significant debt to the composer’s karma bank. In short, my contractual analysis notwithstanding, I would strongly urge the composer to discuss his opportunity to expand the work with the artist and the commissioner before he or she starts heading for the twinkie stand.

________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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.

__________________________________________________________________

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!

 

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Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings | Comments Closed

Who Needs Legalese?

Thursday, January 30th, 2014

By Brian Taylor Goldstein, Esq.

 

Dear Law and Disorder:

I need to add language to a contract that says that if we have to reschedule due to snow, we have the right to do so. What language do I need?

You need language that says: “If we have to reschedule due to snow, we have the right to do so”

Seriously, you don’t need legalese. You only need English. There are many people who believe that drafting a contract involves taking something simple, adding a lawyer, and producing something no one can understand. In truth, most legalese is really just bad writing. On the other hand, what people often mistake as “legalese” is really additional details and specificity that they may not have thought of. Whereas lawyers tend to take simple concepts and mangle them into undecipherable run-on sentences and tortured verbiage, normal people, in an effort to avoid legalese, all too often over-simplify complex concepts, leave important terms undefined, or exclude critical clarifications.

The sole point of a contract is to convey the terms that will govern a relationship as accurately and completely as possible so that all the parties can have an opportunity to review and evaluate all the various aspects of their relationship—ideally, before agreeing to enter into the relationship. This should include explanations of nuances and details. Too often, its not help with the language people need, but help sorting through the details. Such details, however, need not be buried beneath piles of arcane and confusing terminology. Rather, they just need to be spelled out.  For example, in your case, do only you have the right to cancel due to snow? What if the other party is snowed in? Can they reschedule, too? Is this limited to snow? What if the problem is ice, not snow? Or a flood or storm? Who gets to decide the reschedule date? What if the other party already is booked to do something else on that date? What if you have already booking a flight and will incur a fee to change it? An equally simple way of phrasing your right to reschedule, but which addresses all of these details, might be as follows: “Either party shall have the right to cancel due to inclement weather. In such case, the parties agree to reschedule on a next mutually available date. Each party will bear its own expenses incurred in the event of such rescheduling.”

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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.

__________________________________________________________________

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!

 

 

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Posted in Acts of God, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division | Comments Closed

Don’t Be Late For Dinner

Thursday, January 16th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder,

About six months ago, a venue booked one of my artists and then sent me a signed contract with language requiring the artist to arrive the day before the concert rather than the morning of the concert. The venue was not willing to pay for an extra night of hotel and the artist already has a concert booked the night before, so I struck the language, signed it, and sent it back. The presenter never said anything, but now they are claiming that they never read the contract after I sent it back and are insisting that either the artist arrive the day before or else they will cancel. They claim that this policy is necessary to protect them from a cancellation in case it snows and the artist can’t arrive. The concert is in one month. Are they correct? Do they have the right to cancel?

You had every reason to object to this the language. There are many reasons for an artist to arrive the day before a concert—such as rehearsals, flight schedules, or travel time—but merely allaying the venue’s fears of a weather-related cancellation are not among them. Even if the artist didn’t already have a concert booked for the prior evening, he is being asked to give up what could otherwise be a bookable performance date as well as to incur his own hotel expenses. That’s unreasonable. It’s like inviting someone to dinner, but insisting that they arrive five hours early and wait outside while you cook. However, when you crossed out the language, signed the contract, and sent it back, your actions constituted a counter-offer, potentially rendering the contract null and void.

To make a binding, enforceable contract, all the parties must agree to the same terms at the same time. If one party changes anything in the contract and the other party does not expressly agree to such changes, then the contract is void. This is why, as a general rule, it is unadvisable for one party to send another a signed contract until after all parties have had a chance to discuss and negotiate all the terms. Instead, whoever is drafting or initiating the contract should send an unexecuted draft of the “proposed” contract to the other party. The contract should then be executed only after all discussions, negotiations, and final changes (if any) have been agreed upon.

In this case, you should have contacted the venue and discussed your objections before unilaterally editing the contract or striking the objectionable language. Nonetheless, by not objecting to your changes, by relying on the fact that your artist had scheduled their concert on his calendar, by waiting six months, and, presumably, by advertising and selling tickets to the concert, the venue accepted your counter-offer and the contract became legally binding. As far as their claim that they didn’t notice your changes and just assumed you had signed the contract, that’s their problem. Never assume. Consequently, under the terms of the contract, the artist is not required to arrive the day before, so the presenter has no right to demand that he do so. If the presenter were to cancel at this stage, it would constitute a breach of contract.

While a legal analysis is always only half the analysis, and all reasonable solutions should first be explored, should the venue cancel the engagement, it would be liable for the artist’s full engagement fee. Cancellation insurance would probably have been a simpler and more cost effective alternative.

__________________________________________________________________

For additional information and resources on this and other GG_logo_for-facebooklegal 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.

__________________________________________________________________

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!

 

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Posted in Acts of God, Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Presenters, Touring | Comments Closed

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