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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.

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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

Too Fast and Furious To Get A Visa!

Thursday, February 20th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We filed a P-1 petition for an orchestra that is to perform at our venue. The petition was approved and it includes the orchestra’s conductor. However, the conductor just informed us that he does not want to go the consulate and apply for his P-1 visa (he says he just doesn’t have time for such an inconvenience.). Instead, he wants to enter as a visitor on the ESTA/Visa Waiver Program. He claims he did this when the orchestra toured the United States last year, including performing at our venue, and there was no problem, so he wants to do it again. We never realized he performed for us last year as a visitor. Are we in trouble? What if he insists on doing this again this season? What are the risks for us and for him?

Unless this is the conductor of the Hogwarts Symphony Orchestra, he seems to be laboring under the misbelief that he can waive his magic baton and dismiss anything he finds unpleasant, inconvenient, or displeasing. If only that were true.

Your situation presents several problems, the first and most immediate being that, under U.S. Immigration Law (however, inane we may all agree it is), an artist is not allowed to perform in the U.S. while on a visitor visa. Regardless of whether or not tickets are sold and regardless of whether or not the artist is paid in the U.S. or abroad (or even if the artist performs for free), no performance activities are permitted while an artist is in visitor status. Unless an artist has been admitted on an O or P visa, or has been admitted in some other applicable work authorized classification, any performances are illegal.

Technically, as the presenter/venue, you are supposed to verify the work authorization of each artist who performs for you. Had the conductor presented his visa (or lack thereof) to you last season, it would have quickly been discovered that he was not authorized to perform.  On the slim chance you were ever audited for immigration compliance, your venue could be found to have violated U.S. Immigration law by facilitating the illegal performance of a non-U.S. artist without proper work authorization. Penalties could range from fines to the greater scrutiny of future visa petitions.

I understand that, in this case, the conductor in question was able to enter the U.S on the ESTA program, perform, and leave without issue. He was lucky….and so were you. While I can see the temptation to try the same deception again, especially for a busy conductor who does not want to make a trip to a U.S. Consulate, such luck cannot continue indefinitely.

While U.S. Consular Officers and U.S. Customs and Border Protection Officers are as vigilant as possible, they cannot catch every violator on every occasion. The situation is much like running a red light, or committing any other criminal or penal violation, without getting caught. The lack of an arrest does not make the crime any less illegal. In this case, however, the penalties for an immigration violation can be more severe than a mere traffic ticket.

For an artist, presenting oneself at the border and asking for admission as a visitor, when the artist, in fact, intends to perform illegally constitutes a fraudulent misrepresentation to a federal law enforcement officer and constitutes a felony. If caught, the artist can be subject to immediate deportation as well as restrictions on future travel, visas, and work authorization. While I am familiar with many Non-U.S. artists who have managed to sneak in and out and perform as visitors on various occasions, I am also familiar with many who have been caught, even after years of being undetected.

In one case in particular, an internationally known artist who had held multiple O-1 visas over the course of his career, found himself with an approved O-1 petition, but unable to find the time to travel to a U.S. Consulate for an interview and to receive a physical O-1 visa. Instead, he entered as a visitor. Much to the dismay of him and his management, he was discovered. Because of his notoriety and international standing, he was not deported. However, because of his attempted fraudulent entry, his visitor privileges were revoked and for the next six years he was required to seek a “waiver of inadmissibility” every time he went to a U.S. Consulate to apply for a visa. Such a waiver adds an extra 2 – 3 weeks of processing time to the issuance of a visa.

I am also familiar with a management company whose future immigration petitions have been consistently flagged for extra review and processing when it was discovered that there were knowingly assisting artists in filing deception P-1 petitions.

As you can see, I would strongly advise the conductor that the immediate temptation of avoiding the time and hassle of a trip to the consulate is outweighed by the potential loss of his ability to travel and work in the U.S. Ultimately, if he decides to continue running the red light on the assumption that he won’t get caught, you and your venue should not be required to go joy riding with him.

_________________________________________________________________

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 Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | 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

What Do You Mean I Need To PAY For Music?

Thursday, January 23rd, 2014

By Brian Taylor Goldstein, Esq.

Greetings,

I have recently been contacted by ASCAP asking for fees based on music played by live musicians. Are we required to pay if we do not pay the musicians? Any musician who plays at the location is not compensated for their efforts.

Is anyone else who works at or for your location compensated for their “efforts”? Waiters? Staff? Vendors or suppliers? Do you have to pay for liquor if you give it away? Who pays for the electricity or the heat? People can always agree to donate goods and services, and many do. However, as a general rule, society discourages the involuntary donation of other’s property without their permission—even if it’s for a really good cause.

A musical composition—just like a computer, a watch, or a car—is considered property. It is no less valuable—indeed, I would argue, it is of greater value—than anything else you are required to pay for that has a physical price tag attached. A musical composition belongs to the composer who wrote it and/or the composer’s publishing company. Under US Copyright Law, whoever owns a musical composition also has the absolute right to control and determine all uses of the property—this includes the right to perform the music live, record the music, play a recording of the music for the public, change the lyrics, make arrangements, or just about anything else you can think of to do with music. Any location where music is performed—whether it’s a theater, concert hall, or other venue (for-profit or non-profit) where music is performed live or whether it’s a restaurant or store that plays recorded music for their patrons’ listening pleasure whilst shopping or eating—needs to obtain the composer’s permission and, in most cases, pay a usage fee called a “Performance License.”

ASCAP, like BMI and SESAC, is an organization that represents composers and helps them by issuing performance licenses and collecting fees on behalf of the composer. It helps locations, too, because, rather than having to contact every composer individually, you can purchase a performance license from ASCAP to cover all of the composers they represent. It’s like one-stop shopping. However, as they don’t represent every composer, most locations need to purchase licenses from BMI and SESAC, as well.

If your musicians are performing original music they composed themselves, then they can certainly agree to perform their own music for free. However, if they are playing (“covering”) music composed by other artists, then just because the musicians agree to perform for free doesn’t mean that the composers have allowed their music to be performed for free as well. If ASCAP contacted you, it’s because music is being performed in your location and ASCAP is trying to ensure that you have obtained permission from each composer they represent to have their music performed. While there are a number of factors that can determine the cost of obtaining performance licenses—the size of your venue, the price of tickets, the number of performances, etc.–ultimately, it’s your responsibility to ensure that the necessary permissions and licenses are obtained.

__________________________________________________________________

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 Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings, Venues | 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

Beware of Simple Answers!

Thursday, December 19th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I work with an artist whose current US visa expires in January 2014, but he has one engagement in the US on March 8, 2014. The promoters are saying that he won’t need to renew his visa and can just use ESTA, however, we were under the impression that he would need a valid US visa. Is this correct?

You are absolutely correct. He will require an O-1 visa.

ESTA stands for “Electronic System for Travel Authorization.” ESTA is an on-line registration system for citizens of countries who participate in the United States Visa Waiver Program (“VWP”). Citizens of VWP countries are not required to visit a US consulate and apply for physical visitor visa (B-1/B-2) to enter the US as visitors. Instead, they are only required to have a valid passport from a VWP country. However, they are required to register on-line through ESTA and be pre-authorized before they can enter the US.

The key, of course, is that the VWP program only allows citizens of VWP countries to enter the US as “visitors.” As such, they can only engage in visitor permitted activities: shopping, sightseeing, business meetings, etc. Under US Immigration Law (frustrating and circuitous though it may be), professional artists who enter the US as visitors are not permitted to engage in ANY public performances–regardless of whether or not an artist is paid, regardless of whether or not tickets are sold, regardless of whether or not the performances is for a benefit or a gala, regardless of whether or not the performance is for a university or non-profit, regardless of whether or not you can afford the visa process, regardless of whether or not the artist lives 100s of miles from the nearest US consulate, regardless of whether or not the artist has previously performed in the US as a visitor, etc, etc.

While artists frequently do sneak in as visitors and perform, this poses far more risk to the artist than to the venue or promoter. If the artist is caught, the worst that happens to the promoter or venue is that the artist can’t enter the US and the concert may have to be cancelled. However, a fraudulent VWP/ESTA entry can result in the artist having his VWP privileges revoked, or worse.

I am currently working with a prominent artist who wanted to take a last minute engagement, didn’t have time to petition for a visa, much less go to the consulate, and decided to enter the US as a visitor. Unfortunately, his concert had been prominently advertised, he was caught by the one of the few border officers who actually follow classical music, and was refused entry. For the next five years, the artist must now formally request a “waiver” anytime he wants to obtain a proper O-1 visa to perform in the US. As you may imagine, this has caused considerable stress to his management because a “waiver” request adds an additional 3 – 4 week delay in processing the artist’s visa. In addition, his VWP privileges were revoked, meaning that he must go through the time and hassle of applying for a formal B-1/B-2 visitor visa even if he legitimately only wants to enter the US as a visitor.

I doubt seriously that the promoter was intentionally giving bad advice. More than likely, the promoter was ill-informed. Which only underscores the responsibility of each of us to take the time to learn and figure out the correct answers for ourselves rather than rely on hearsay or anecdotal information. Whether you’re dealing with visas, taxes, licenses, or liability, if the answer seems too simple, it probably is.

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Hi Everyone! “Law and Disorder: Entertainment Division” will be taking a holiday break. Our next post will be on January 8, 2014. Many thanks for a wonderful year of great questions and challenges. Keep them coming! 

OFFICIAL HOLIDAY WISH CONVEYANCE

From Brian Taylor Goldstein and Robyn Guilliams (collectively, the “Wishor”) to you (“Wishee”):  

Please accept without obligation, implied or implicit, and weather permitting, our non-assignable and non-exclusive best wishes for a sold out, standing room only, royalty abundant, lavishly licensed, critically acclaimed, non-cancelable, infringement free, profusely booked, copiously commissioned, richly funded, tax-exempt, crisis deficient, and artistically inspired celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious and/or secular persuasions of your choice, including their choice not to practice any such religious or secular traditions, along with an environmentally conscious, socially responsible, spiritually enlightened, politically correct, low stress, low carb, high HDL, non-addictive, financially successful, personally fulfilling, and medically uncomplicated recognition of the onset of the generally accepted calendar year 2014, but with due respect for the calendars of choice of other cultures or sects, and without regard to the race, creed, color, age, physical ability, religious faith, choice of computer platform or operating system, mental and/or physical incapacities, visa classification period, sexual preferences, political affiliations, and/or dietary preferences of the Wishee.

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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 Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Is The Term “Work-For-Hire” A Magic Phrase?

Thursday, December 12th, 2013

By Brian Taylor Goldstein, Esq.

An orchestra wants to commission a composer we represent to create an arrangement of a piece they want to perform. We were hoping that our composer would retain ownership of the arrangement so that in the future if the orchestra, or anyone else, ever wanted to play his arrangement, he would get a royalty. However, the most important thing is that we want the composer get credit for the arrangement whenever it is performed. In the commission agreement they sent us it says that the orchestra will get the right to perform the arrangement for one year, but it also says that: “Artist agrees that this work stated above shall not generate further monetary remuneration to the Artist (ie: a “work for hire”).” This doesn’t make any sense. If we agree to this, would our composer at least get credit ever time his arrangement is performed?

You’re correct. The commission agreement contains conflicting terms. It’s bad enough when attorneys use “legalese”, but when normal people try to use legal phraseology that they do not understand–or, worse, that they “think” they understand—chaos, rather than clarity, often ensues.

As a general rule, the person who creates something automatically owns it and controls all rights. The mere fact that you pay someone for their services does not inherently mean that you own the work they produce or have any rights to the work. For example, paying someone to design your website does not mean you also purchase ownership of the design or have any rights to use the design. Similarly, commissioning someone to provide creative services (such as composing music) does not mean that you own the material they create or have any rights to perform the composition. All rights remain with the author of the work unless either there is an agreement between the parties specifying rights and ownership or the work constitutes a “work for hire.”

A “work-for-hire” means that the person who paid for the work is considered to be the author and owns all rights to the work. However, under U.S. copyright law, a “work-for-hire” occurs in only one of two very specific scenarios:

1)         When an employee creates material for an employer within the scope of the employee’s employment, the employer and not the employee is considered to be the author and the employer automatically holds the copyright. The employee gets nothing but a pay check; or

2)         A work is specially ordered or commissioned for use as a contribution to a collective work; a part of a motion picture or other audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; or an atlas AND the parties expressly agree in a written contract signed by both parties that the work shall be considered a work made for hire.

In your case, I am sure that the orchestra believe that merely using the magic words “work for hire” will automatically transfer all rights and ownership in the arrangement to them. It does not. Why? Because although there is a written contract, the arrangement will not be used as a contribution to a collective work; as part of a motion picture or other audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; or an atlas. (Yes, this is a very odd and restrictive list. Blame Congress…while you’re at it, blame the lobbyists for the motion picture industry, text book industry, etc.) Unless both elements are present, it does not create a “work for hire.” If the orchestra wanted to own the arrangement, the commission agreement would need to include an assignment of copyright and a grant of all rights and title. As it doesn’t, if you were to sign the agreement, the orchestra would, in fact, have no rights to the arrangement. However, you’d also be taking advantage of the orchestra’s obvious lack of knowledge of copyright law as, clearly, they believe they would be owning the arrangement. Should they ever attempt to assert their rights, your composer would need to bring a lawsuit to assert his ownership and nullify their claims. This would not only result in needless legal expenses, but probably make any other orchestra think twice about commissioning your composer.

Rather than engage in legal games, if your composer is not willing to transfer ownership to the orchestra, I would strongly advise you to bring that to the orchestra’s attention and discuss the matter. If the orchestra insists on owning the arrangement, then you can decide whether or not to decline the commission or edit the commission agreement to specify the parties’ intentions. Should your composer decide to assign ownership to the orchestra, the parties can always agree that your composer would be given credit as the composer. However, that must also be specified in the contract! Preferably, in English.

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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, Presenters, Publishing, Recordings | Comments Closed

Back Away From The Email!

Wednesday, December 4th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

I recently had to cancel an engagement. We had a signed contract with the venue, but circumstances arose where we had no choice. I sent a very cordial and professional email to the venue, but got a very threatening and aggressive response. I wrote back and explained our situation, then I received a nasty email from the venue’s attorney threatening to sue us. This doesn’t seem very professional to me. We could have worked this out and now they are demanding either a written assurance that we will perform or else they will sue us for damages.

In an industry that depends on relationships and communication, email, more often than not, facilitates neither. Too many folks use email as convenient way to avoid what they perceive will be difficult or unpleasant conversations. What you perceived as a “cordial” and “professional” email may have been misread as dismissive and aggressive. Why? Because emails cannot convey tone or emotion or sincerity.

This is yet another example of why everything I needed to learn, I learned in theater. Emails are like scripts. Without an actor or stage directions to assist in interpreting them, they are just words on a page and subject to multiple interpretations and readings. “I loved your performance” can be read equally with deep sincerity or with eye-rolling sarcasm. Even something as simple as “I’ll respond as soon as I can” could be interpreted as “This isn’t important enough to me to demand my immediate attention.” Especially when you are delivering information you know the listener will not be receptive to hear, don’t be surprised when they do not give you the benefit of the doubt. Emails are great tools for confirming information or clarifying understandings, but lousy for any communication that calls for nuance or delicacy at the outset.

In this situation, if you had a signed engagement agreement, then you probably had no right to cancel. Thus, regardless of legitimacy of your circumstances, a cancellation is a breach of contract. Using an email to notify someone that you intend to breach your contract is like texting your wife that you want a divorce. How did you expect them to respond? It was unrealistic to think that your missive would be met with joyous rapture and a “thank you” note.

However, the venue is equally as culpable in the escalation. When the venue received your email, they could just as easily have responded with a phone call rather than respond with their own email. Certainly, when you received the venue’s angry response, you could have used that as an opportunity to reach out to them with a personal phone call rather than yet another email. There is no guarantee that a personal phone call would have resulted in a better outcome, but more often than not the sound of a plaintive voice acknowledging responsibility accompanied by contrite offers of reasonable solutions will offer both parties better odds of avoiding unproductive conflict. You can always follow up with an email after you have had a chance to make a personal connection.

_________________________________________________________________

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, Venues | Comments Closed

A “Thank-You” Note Is Not The Same As A License

Thursday, November 21st, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I was wondering if I have my own blog and post a music video from iTunes in the blog, giving full credit to the musician, including the musician’s original link, would this be legal? And can you please specify on what full credit means.  Further, if I can’t do this, how do you go about getting permission from the musician??  Thank you!

A “copyright” is literally the right to make copies. A copyright “infringement” is when you make a copy of something without the owner’s permission.

Almost everything you can find on the internet (photos, images, videos, text, etc.) is someone else’s property. Part of the challenge of understanding digital rights is that the ease with which we can download and copy materials on the internet tends to make us forget that copying any materials without permission is still copyright infringement.

Without question, many people post pictures, videos, and other materials and are more than happy to have others repost and share them; but that decision is entirely up to the person who owns the materials. In other words, just because a car is parked on the street, doesn’t mean its free for the taking.

Purchasing and downloading a video from itunes only gives you the right to enjoy it. It doesn’t give you the right to re-post or copy the video. As such, posting someone else’s video on your blog would constitute copyright infringement unless you had permission from the owner of the video.

If you are commenting on or reviewing the video or the artist, then, arguably, you might be able to claim that posting the video constitutes “fair use.” However, the more of an item you post, the less “fair use” it becomes. So, an excerpt of a video is more likely to be “fair use” than posting the entire video. The better option would be for you to post a link to the video rather than post the video itself. In other words, you would be inviting your readers to go to itunes or the artist’s own website to view the video. This way, the owner can control whether or not they want the video to be shared.

I know many people who subscribe to the theory that, in practical terms, you should post anything you want until someone tells you to take it down. However, in practical terms, that’s also called “really bad advice.”

As for giving “full credit”, giving an owner credit in any form or manner neither gives you any rights to post materials nor absolves you of copyright infringement. Stealing a car, but leaving a thank you note crediting the owner, doesn’t make it any less a crime. If you want to get actual permission to repost a video, photograph, or any other copyrighted material, then you need to get permission (aka “a license”) from the owner—which may or may not be the artist. More often than not, video rights are controlled by record labels. Nonetheless, when seeking licenses, the best place to start is always the musician’s publisher, manager, or agent.

__________________________________________________________________

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 Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing | Comments Closed

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