Archive for the ‘Law and Disorder: Performing Arts Division’ Category
Wednesday, August 28th, 2013
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder
Do non-US artists need artist visas when they come in to perform a showcase at a booking conference? They don’t get paid. Its just to get bookings. In fact, the artists lose money doing this. Can they enter on a tourist visa or do they have to spend even more money and go through the process of getting an artist visa?
Its rare that someone asks us an immigration question where they actually might like the answer…this may be one of those instances.
However, its first always worth remembering that, under current U.S. immigration law, whether or not a foreign artist is required to have an artist visa (almost always either an O or a P) is not related to payment. What triggers the need for an artist visa is performance. Whether or not an artist is paid, whether or not tickets are sold, whether or not the performance is public or private, whether or not the performance is for a non-profit educational or a cultural organization, if an artist performs, and there is someone watching the performance, he or she is required to have an appropriate artist visa.
Except for rare and limited exceptions, an artist can never perform on a visitor visa or, if applicable, under the visa waiver program. One exception is a competition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of participating in a competition where there is no payment other than expenses and a prize, monetary or otherwise. Another exception is an audition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of auditioning or meeting with producers or presenters in the hopes of being hired to perform in the future.
While there is no official codification of a showcase being regarded as an audition, the U.S. State Department in conjunction with U.S. Citizenship and Immigration Services have long taken the position that a showcase is regarded as an audition if it meets the following criteria: The showcase is not open to the public, no tickets are sold or available, attendance is open only to registered members of the booking conference, and the artists are not paid and are responsible for their own expenses. Also, the artist cannot perform any other engagements in the U.S. while on the same trip. In other words, they need to get in, perform the showcase, and get out. If these criteria are met, then an artist may enter the U.S. and perform at the showcase on a visitor visa or, if applicable, a passport issued by a “visa-waiver” country.
Be forewarned: simply calling a performance a “showcase” is not sufficient. Nice try, but that won’t work. If an artist books a venue, sells tickets or otherwise makes tickets available to the public, but allows booking conference attendees to attend free, that is NOT a showcase for purposes of the artist visa exception and the artist will be required to have an appropriate artist visa. Similarly, booking an engagement with a low fee simply because the artist or the artist’s agent/manager believes such engagement will be an opportunity to showcase or introduce the artist’s talents to the U.S. market in the hopes of getting future bookings is also NOT a showcase.
If you believe that you or an artist you represent may qualify for the showcase exception, then, if the artist is traveling on a passport from a “visa waiver” country, he or she needs to travel with a letter from the artist’s agent/manager or, even better, from the booking conference itself, confirming that all the elements of the exception are met. If the artist is traveling on a passport from a “non-visa waiver” country, then he or she will need to apply for a visitor visa at a U.S. consulate, but should bring the appropriate letter with them explaining that the showcase exception applies.
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For additional information and resources on this and other 
legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
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THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:audition, bookings, Brian Taylor, engagements, exceptions, Goldstein, immigration, immigration law, state department, travel, visa waiver program, visas, visitor, visitor visa, waiver
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed
Wednesday, August 21st, 2013
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: Several years ago, our small ensemble hired a composer to arrange and re-orchestrate a work for us to play. The work itself, which is still under copyright, was originally written and arranged for a large orchestra. Recently, we made a video of our group performing the piece, put it on YouTube, and the composer’s publisher had it taken down. The publisher also told us that the composer had not authorized any arrangements or re-orchestrations. They also told us we couldn’t even perform it live anymore. Is this true? Even though we paid for the re-arrangement ourselves? Even though we have always obtained performance licenses through BMI? We have been performing this arrangement for years and the publisher has never objected before. It doesn’t seem fair. We have engagements in 2013/2014 to specifically perform this piece as part of our repertoire. When you obtain a performance license through ASCAP, BMI or SESAC, you obtain the right to perform a work as written. This includes the right to “interpret” the work to reflect your own style, artistry, expression, etc. However, it does not include the right to re-orchestrate or re-arrange a work in a manner that changes the fundamental nature of the work. For example, obtaining a performance license to perform a work written for a chamber ensemble does not give you the right to “re-arrange” it for four banjos and a zither—as tempting as that may be! The fact that you paid for the re-arrangement doesn’t give you any rights to perform it, if the re-arrangement itself was unauthorized. That’s like stealing a car, but arguing that it wasn’t a crime because you paid for the gas. (My partner, Robyn, says I never met an analogy I didn’t like…so let’s go with that.) However, on the plus side, such as it is, should the composer/publisher of the work ever decide they like your arrangement, they can’t use it without your permission either. The right to the re-arrangement belong to the owner of the re-arrangement—which could be your ensemble or the composer of the re-arrangement, depending on how your commission agreement was drafted. (Remember, the mere act of paying for something doesn’t inherently convey any rights.) The fact that you have been performing this arrangement to date without any trouble might buy you an argument—albeit a weak one—that your past performances were “implicitly” licensed. However, now that the publisher has officially told you that your arrangement is unauthorized, any future performances beyond this point would constitute copyright infringement. The line has been drawn. I know it doesn’t seem fair when a composer, author, publisher, or copyright owner refuses to give you the rights you need—especially in a situation such as yours where your arrangement obviously has artistic merit or else you wouldn’t be getting engagements to perform it. However, bear in mind that those same rules also protect your own rights. Imagine your position if someone had taken that video you posted on YouTube and, without your permission, altered it or used it in such a way that you found artistically objectionable. You would be just as adamant that they must stop. Also, bear in mind that its almost always easier (not to mention legally required) to get rights by asking and negotiating ahead of time, rather than taking what you want and then asking for forgiveness or permission after the fact. It’s the difference between borrowing and stealing a car. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:ascap, bmi, Brian Taylor, copyright, copyright infringement, engagements, Goldstein, orchestrations, performance license, permission, youtube
Posted in Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings | Comments Closed
Wednesday, August 14th, 2013
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: I want to start getting the artists I represent to sign a written representation agreement. However, all of the models I have found are too long and complex. I definitely do NOT want a 14 page contract, more like 4 or 5 at most. I won’t be able to get folks to sign it otherwise! And, can the language be more simple? I like simplicity. When drafting contracts, length and simplicity should be the least important factors. Such restrictions are arbitrary. That’s like saying: “I want to drive from New York to California, but I absolutely refuse to use a car that requires tires or gas.” You’re going to have a problem satisfying your travel needs and goals. The goal of any contract is not to make it simple enough so everyone signs it. If that’s your goal, you really only need two sentences: “I agree to book engagements for you. You agree to pay me.” Let’s assume both parties sign it. What if the artist doesn’t pay you or leaves you for another agent? Contracts are not self-enforcing. If one party breaches a contract, then merely having a signed contract is not going to force them to comply. You have to file a lawsuit to enforce a contract. That’s expensive…and often pointless if the artist has no assets. Worse, if your contract is too simple and doesn’t adequately address the nature of the dispute, then the other side’s attorney is going to poke all sorts of holes in your “simple agreement” and you’re going to lose anyway. The goal of a contract is having a document that adequately addresses your concerns and issues and spells out all of the key terms so that you and your artist have a chance to review and discuss them. A meaningful contract will assist both parties in routing out any presumptions or misunderstandings before problems arise. Whether it takes 4 pages to do that or 14 pages, the length of your contract will depend on the complexity of the relationship, the length of the relationship, the needs and concerns of the parties, the amount of money at issue, and a myriad of other issues. For example, if an agent takes a commission of 20% off everything they book for the artist, do you earn your commission when the engagement is booked or actually performed? Does “everything” include 20% of reimbursements for travel and hotel expenses? Are you exclusive? Do you get a commission on engagements that the artist books on their own? And when do you get paid? And how do you get paid? Are engagement fees sent to you or do you invoice the artist? What about engagements that happen after the term? How long is the term? Can you cancel? Can the artist cancel? What if the artist decides to cancel and goes to another agent? Are you still entitled to the commission on engagements you booked? And the list goes on… Think of your contract as a checklist that you will use to facilitate a discussion with each new artist you bring on to your roster to help you decide if you want to work with them and vice versa. If there are issues that are not important to you, then you can take them off your list and remove them from your contract. However, if there are expectations or requirements that are important to you, those need to be adequately explained and detailed. Similarly, while the language you use to explain your expectations and requirements can be simple, it also needs to be appropriate. While I am the first to criticize attorneys for using overcomplicated legal babble, more often than not, a lot of language that confuses artist and agents in contracts is not necessarily “legalese”, but basic business terms and practices with which they are not familiar. Let’s face it…a lot of artists as well as agents, managers, and presenters, do not necessarily have the same business background and training as do entrepreneurs and business people in other, less fulfilling industries. That merely means there are new terms to learn, as opposed to avoid, as your business grows and matures. My point is that your focus needs to be on finding the right language to adequately explain your terms, concerns, expectations, and requirements. I’ve seen too many parties get burned because they dumbed down a contract just to make it shorter. That’s a waste of both time and money. More important, in my opinion, arbitrarily “dumbing” down a contract merely on the assumption that artists won’t understand anything more complex does a disservice to the all the inherently bright, creative, and intelligent denizens of our arts industry who merely need an opportunity to be taught. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:agent, agent contracts, artist, breach, Brian Taylor, complexity, contract, Contracts, dispute, Drafting, engagements, Goldstein, manager
Posted in Agents, Artist Management, Contracts, Law and Disorder: Performing Arts Division | Comments Closed
Wednesday, August 7th, 2013
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: Since ASCAP does not cover dance or theatrical performances, how does a dance group go about getting the appropriate permissions/ copyright releases needed for their performance? Another word for “permission” or “copyright release” is “license.” Dance performances, like theatrical performances such as opera or theater, as well as any other performance of music other than a concert, most often require two types of licenses for their performances: (1) a “Performance License” which is required for music to be performed (either live or via a recording) and (2) a “Dramatic License” for the music to be interpreted dramatically either through choreography or by performing the music as part of a play, musical, or opera. While ASCAP (as well as BMI and SESAC) does not issue dramatic licenses, they do issue performance licenses. Typically, most venues, theaters, presenters, etc. will obtain yearly blanket performance licenses from ASCAP, BMI and SESAC which allow the music in the ASCAP, BMI and SESAC catalogs to be performed in the venue. In such cases, that means you would only be required to get dramatic licenses for your group’s performances. However, not every venue obtains ASCAP, BMI and SESAC blanket performance licenses. Some erroneously believe that non-profits are somehow exempt from such licenses. Others believe it is the artist’s responsibility while others simply hope they won’t get caught. There are also instances where the music you want to dance to may not be represented by ASCAP, BMI or SESAC. Regardless of the reason, in instances where either the venue doesn’t have a performance license or the performance license doesn’t cover the music you need, you will be required to obtain both performance licenses as well as dramatic licenses. As for how your group actually obtains the necessary licenses, you would need to identify the composer or publisher of each musical work you want to use in your performance and contact the composer or publisher directly. Identifying composers and publishers isn’t actually that hard. ASCAP, BMI and SESAC maintain free, searchable databases, as does the Copyright Office website. You can also search the databases of other licensing organizations such as the Harry Fox Agency (which issues mechanical licenses.) You may have to be persistent and allow for lots of time. Not every composer or publisher will respond right away—or even respond at all. You may need to make repeated requests. If you don’t’ get a response, assume the answer is “no” and select different music. “Silence” is never golden which it comes to licensing. Also, just because you request a license doesn’t mean the composer or publisher will agree. And even if they agree, they can charge whatever they want. Composers and/publishers are free to be as arbitrary as they want when it comes to issuing licenses and setting fees. As I frequently remind everyone, there is no such thing as “industry standard.” If all of this seems daunting, keep in mind that, more often than not, you will be able to get the licenses you need provided you invest the necessary time and attention. Do not leave the licensing process to the last minute and do not assign this task to a volunteer intern helping out at your office. Also, bear in mind that the same rules that may seem to thwart your ability to use the music you want also protect you when it comes to controlling the ability of other dance groups to copy and perform works that you create and control. If all else fails, consider supporting a composer and commissioning your own music. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:ascap, bmi, Brian Taylor, choreography, copyright, dance, dance group, dance performances, dramatic license, Goldstein, license, Licensing, music, necessary licenses, non profits, performance license, permission, release, sesac, theaters, theatrical performances, venue
Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Non-Profits, Presenters | Comments Closed
Wednesday, July 31st, 2013
By Brian Taylor Goldstein, Esq. I am writing you about a question we have in regards to the length of stay that USCIS grants for O-1B visas. In the past few years, it has been our experience that USCIS will not grant 3 year visas for a time period that has gaps from anywhere to 3 to 6 months between engagements. Therefore, for our artists, we have been applying for month long visas, or three month long visas, etc, which has started to become prohibitively expensive for them, and rather inconvenient and time consuming for us. We were told by an artist that is moving off of our roster that his new manager will be applying for a 3 year visa for him, regardless of the fact that this particular artist has gaps of 6 or more months between engagements, or no engagements at all after a certain point. So our question is, has the USCIS policy changed, or worse, do you think it’s possible that the artist’s new manager has some kind of connection or agreement with USCIS that we do not? Artist visas are not defined by length, but by type: O-1 visas for individual artists, P-1 visas for groups, and P-3 visas for culturally unique individuals or groups. The length of the visa validity period depends on how many engagements and other activities (rehearsals, production meetings, receptions, etc) the artist or group has in the United States—up to 1 year of engagements for P visas and up to 3 years of engagements for O visas. Officially, USCIS will approve a single visa validity period where all the engagements constitute “a continuous event”, such as a tour. However, in its inimitable predilection for unhelpfulness, USCIS has no specific definition of “a continuous event” and no policy on the minimum or maximum length of “gaps” between engagements and activities. Rather, USCIS examiners are given complete, unfettered discretion when it comes to determining whether a gap between engagements is too long and will require filing separate petitions. Let’s say, for example, that an artist has an engagement in October 2013 and their next US engagement is not until April 2013 and the manager files a visa petition requesting a validity period of October 2013 through April 2013. USCIS could either approve the visa for the entire length of the validity period requested, notwithstanding the six month gap between engagements, or it could only approve enough time to cover the October 2013 engagement and require the manager to file a new, separate petition for the April 2013 date. When dealing with this issue, anecdotal evidence and actual experience is your best guide. While I have known USCIS to approve visa petitions even with large gaps between engagements, more often than not it will “cut off” a visa validity period where there are more than 3 – 4 months between engagements or activities. My general advice is to keep gaps as short as possible. As for shortening gaps, or even extending the length of an entire visa validity period, consider this: you are not limited to including in your visa petition only engagements dates that have signed engagement contracts. You do not have to provide a signed contract to support each engagement. Instead, USCIS will accept any written confirmation of an engagement, including unsigned term sheets, deal memos, emails, confirming letters. Even if a date is still under negotiation, so long as you are holding that date on the artist’s calendar, it can be including on the visa petition along with an accompanying written confirmation that the date is being held. In addition, you can also provide a list of the artist’s non-US engagements and explain that when the artist is not performing in the US it is because the artist will be performing elsewhere in the world. I can assure you that USCIS has no special deals with your ex-artist’s new manager. According to your question, your ex-artist is merely claiming that his new manager “will be applying” for a 3 year visa for him. “Will be applying” is not the same that as “has obtained.” If the artist has large gaps in his itinerary or lacks 3 years of engagements, he will be receiving a Request for Evidence (RFE) or a visa denial, not an O-1 with a validity 3 years. Don’t believe everything you are told, especially by disgruntled ex-artists who want you to believe they have moved to greener pastures. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:Brian Taylor, continuous event, engagement contract, engagements, gap, gaps, Goldstein, manager, maximum length, petitions, time period, uscis, validity period, visa petition, visa petitions, visa validity, visas
Posted in Agents, Artist Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed
Wednesday, July 24th, 2013
By Robyn Guilliams Dear Law and Disorder, I have been in artist management for a long time, thought I had seen it all, but something just came up for one of my artists that has me completely stumped. My client was sent a 1099 for a hotel stay that the presenter provided for an engagement. Most presenters that I work with pay for the hotels, but never once has the value of that hotel been included on the 1099 that the artist was sent. This particular place is a big resort, they too are the presenter. They often trade rooms for fees (it’s a very exclusive resort!), or they give small fees plus the accommodations (which includes meals), usually for two nights as a perk to the artist. It gets tricky for the artist, because they don’t pay for the hotel, so they have no expense to write off for that income. So that may mean they end up paying tax on that amount, thereby losing money doing this performance. That’s where this goes wrong for the artist, in my opinion. Artists obviously do this gig because of the resort. But, this has left a bad taste. What’s up with issuing the 1099? They say it is an IRS law that says hotel costs are income for the artist. By the way, they don’t tell you this up front…Searching for the Truth Dear Searching for the Truth: The answer to your question depends on the specific facts of the situation. (A lawyer’s favorite answer to every question is – “It depends”!) Generally, if a presenter provides accommodations to an artist as part of the artist’s compensation, the value of the accommodations is NOT considered taxable income to the artist, if the accommodations are reasonable and necessary. For instance, if an artist is travelling from California to New York to play one show, the presenter providing the artist with two nights of hotel accommodations is reasonable and necessary. The value of the hotel accommodations in this instance would not be considered taxable income to the artist, and need not be included on the 1099. On the other hand, if a pianist travels away from home to play a concert and the presenter provides hotel and airfare for the pianist, her husband, her sister, her sister’s next-door neighbor, and the next-door neighbor’s pet monkey, this is not reasonable and necessary. The value of the airfares and accommodations for everyone except the pianist would be considered taxable income and SHOULD be reported to the artist on a 1099. Unfortunately for your artist, there are a few comments in your letter that indicate that the accommodations at the resort exceeded the “reasonable and necessary” standard. You state that the artists at this resort often accept accommodations in lieu of fees, or accept smaller fees plus accommodations. Why would an artist accept no fee, or a substantially smaller fee, if the artist wasn’t receiving something of value (in addition to the hotel room) in return? Plus, you mention that artists “do this gig because of the resort”… and the presenter provides “two nights as a perk to the artist”. Again, the artist is receiving something of value besides the usual hotel accommodations. If an artist is receiving a significant personal benefit from the accommodations besides a place to lay his head after the show (such as the opportunity to enjoy resort amenities or an extra night of accommodations), then the value of the accommodations constitutes taxable income and must be reported. You say that it’s tricky for the artist, because he has no expense to write off his income. But wouldn’t this be the case if he was receiving his usual fee plus a regular, non-resort, hotel room? I’d suggest that in the future, unless your artist understands the taxable “value” of receiving resort accommodations, including the included room service and use of the infinity pool, have him stay at the Motel 6 down the street. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:gig, hotel accommodations, hotel costs, hotel stay, hotels, irs, irs law, Robyn Guilliams, taxable income, travel
Posted in Agents, Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Taxes, Touring, Venues | Comments Closed
Wednesday, July 17th, 2013
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: We are a small classical music presenter. Several months ago, I booked an artist for a performance this fall. Recently, I received a phone call from the artist’s manager asking for a deposit. Usually, we don’t pay deposits, although, sometimes we will if it’s an artist or manager with whom we have never worked before. However, we’ve worked with this manager before and she’s never asked for a deposit before. When I asked her about it, she said that she (the manager) was having a slow summer and that she needed the money to give her some cash flow to “tide her over” until the fall. She threatened to cancel if I didn’t agree. Is this legal? As a general rule, I’m a big fan of deposits. They provide artists with some “leverage” in the event of a cancellation and they provide presenters with some assurance that an artist has, in fact, been “booked.” However, once all key terms have been negotiated and agreed upon, whether or not a written booking agreement has been signed, then a manager cannot retroactively “require” a deposit. The requirement of a deposit is a key term which needs to be discussed, negotiated, and agreed upon at the outset of discussions. If the artist were to cancel because you refused to pay a deposit you never agreed to pay in the first place, then the artist would be in breach of the booking agreement. But that’s not really the problem here. The problem is that the manager volunteered that she was asking for the deposit not for the benefit of the artist, but for the benefit of the manager herself. It would be different if the manager wanted the deposit to reserve airline tickets or advance costs to cover the artist’s out-of-pocket expenses. However, according to you, that’s not what the manager said. She said she wanted it to “tide her over” for the manager’s own cash flow purposes. Based on that statement, and her subsequent threat to cancel if you refused to pay the deposit, the manager’s actions are not only unethical and unprofessional, in my opinion, but, more importantly, highly illegal. Managers and agents are legally bound to act only on behalf of and in the best interest of their client (the artist) and not on behalf of themselves or anyone else. In legal terms, these obligations are called “fiduciary duties.” Managers and agents can take no actions which are not authorized by the artist and most certainly cannot treat the artist’s money as if it were their own—including asking for and using deposits to float themselves loans to cover their own cash flow needs. This is why, among other reasons, managers and agents are supposed to keep their own, personal operating accounts separate from their client’s (artist’s) accounts. This should not be confused with legitimate situations where managers and agents sometimes ask presenters to split an engagement fee into two payments and pay a commission fee directly to the manager or agent and the balance to the artist. While I find this to be an ill-advised and awkward business practice, it’s neither illegal nor unethical. While I suppose its entirely possible that, in this case, the manager was acting with her artist’s knowledge and authority, I seriously doubt it. This means that the manager was acting out of her own self-interest and not in the best interest of her artist, is in breach of her fiduciary duties, is no longer acting in her legal capacity as a representative of the artist, and, in the event of a cancellation, would be personally liable for the return of the deposit and any damages. Given the manager’s self-admitted cash flow problems, that’s probably a risk you don’t want to take. I’d like to think that the manager is acting out of a genuine confusion over the duties agents and managers owe to their artists. Sadly, this issue continues to confuse even experienced managers and agents who believe that their artists work for them and not the other way around. Regardless, in terms of red flags, this one is ten feet tall and on fire. Run away! __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:agent, artist, booking agreement, breach, Brian Taylor, cancellation, commission fee, damages, fiduciary duties, Goldstein, Liable, manager, money, payment, presenter, risk
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Presenters | Comments Closed
Wednesday, June 26th, 2013
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: In all of my artist’s booking contracts, the presenters are required to obtain ASCAP, BMI and SESAC licenses. I recently received a contract back from a venue in which they crossed out that language. They told me that their policy is not to get these licenses and that the artist is responsible for obtaining them. It was my understanding that it was always the venue’s or presenter’s responsibility to obtain the performance licenses from ASCAP, BMI, and SESAC. Am I wrong? You’re not wrong, but you’re not entirely correct either. The truth is that it is the legal responsibility of all parties to make sure that the proper licenses have been obtained for a performance. Which party actually obtains them and who bears the costs is a matter for negotiation. Whether it’s a festival, a school, a nightclub, or a large performing arts center, non-profit or for-profit, it’s the legal responsibility of the owner/operator of a performance space/venue to ensure that the necessary rights and licenses have been obtained with respect to all copyrighted music which is performed at that venue. (Actually, this legal responsibility is not limited to performance rights, but extends to dramatic rights, synchronization rights, broadcast rights, and all other required rights and licenses which pertain to music, images, trademarks, recordings, images, or other protected rights or materials which are used as part of the performance.) However, it’s equally the legal responsibility of the artist, and in some cases, the producer and promoter, to ensure that they have all of the required rights and licenses, including performance licenses from ASCAP, BMI and SESAC. Why? Because if an unlicensed song is performed at a venue, then the US Copyright Act allows all the parties involved in the performance—the artist as well as the venue/presenter, the producer, the promoter, and anyone else involved in the performance—to be sued by the publisher or copyright owner. Stealing a song is like robbing a bank: the entire gang is arrested; regardless of who broke open the safe, who drove the get away car, or who simply served as look out, they all participated in the robbery. I am familiar with many venues which do not want to be burdened with the perceived cost and difficulty of obtaining performance licenses (which, depending upon the specific circumstances, may be neither costly nor particularly difficult), refuse to do so, and insist on the artist obtaining the licenses. However, in my opinion, for reasons I have written about in earlier blogs, this is a foolish policy. In practice, it’s simple easier for venues and presenters to obtain ASCAP, BMI and SESAC licenses than the artist. The venue can purchase a blanket license from each organization that permits all of the music in their catalogs to be performed by any artist at the venue during the license period. These licenses can cover an entire year or just a specific festival or event, and are priced based on numerous factors, including number of performances, ticket prices, size of the venue, etc. With the blanket licenses in place, the artist simply needs to show up. If a venue or presenter prefers not to obtain such licenses, then the artist or performer can certainly do so themselves. However, if no one obtains the licenses, then everyone is liable. Quite simply, whether the venue/presenter requires the artist to obtain the performance licenses or the artist insists that the venue/presenter obtains the performance licenses, passing the responsibility on to another party will not relieve either party from ultimate responsibility if the other party fails to do so. In other words, there is no contract, release, or any other document which will protect you from liability should the necessary licenses not be obtained. This is why, among other reasons, if I operated a venue, I would much rather rely on myself to obtain the licenses than depend upon another party to do so. In your case, if the venue refuses to obtain the ASCAP, BMI or SESAC licenses, then you and your artist have two options: either the artist agrees to obtain the licenses or the artist refuses to perform. Electing to proceed under the expectation that no one will get caught or the publishers and copyright owners will not sue small artists or struggling non-profits is not an option; that’s the same as robbing a bank and hoping the police won’t find you. Not to mention, in an industry where so many purport to operate under the noble purpose of promoting the value of art and artists, I can’t imagine the rationalization of stealing it for any purpose, regardless of how noble. _________________________________________________________________ “Law and Disorder: Performing Arts Division” will be taking a break between July 1 – July 14. Our next post will be on July 17. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:ascap, bmi, Brian Taylor, broadcast rights, contract, Contracts, copyright, Festival, Goldstein, Liable, music, necessary licenses, negotiation, Non-Profits, owner operator, performance license, performance rights, performing arts center, presenter, promoter, proper licenses, sesac, synchronization rights, venue
Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Venues | Comments Closed
Wednesday, June 19th, 2013
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: If I am booking an artist, whose job is it to draft the contract? Some venues ask me to send them my contract, but other venues seem to have their own. What’s the normal practice? Since you asked for the “normal” practice, I shall tell you: the normal practice is that some venues will ask you to send them your contract and other venues will have their own. It all depends on the circumstances and the venue. You should always have a basic engagement contract that you can tailor for each artist and send to a venue who wants your contract. However, you should expect larger venues to prefer to use their own contracts just as most venues understand and expect that major artists will insist on using the artist’s contract. It really doesn’t matter as both parties will need to review the proposed contract and, if necessary, proposed changes, additions, and amendments. Its unrealistic to presume that the venue’s contract will address all the issues important to the artist and that artist’s contract will address all the issues important to the venue. Negotiation is not just about date, time, and fee. Negotiations include ALL of the terms which will be in the final contract. What you want to avoid at all costs is a situation where, in lieu of taking the time to review and negotiate a single contract, the manger or agent just attaches the artist’s contract as a rider to the venue’s contract (or visa versa) and the parties proceed. Almost always the two contracts will have conflicting terms which will operate to negate the entire contract, making neither one legally enforceable. (And, no, it doesn’t help to use a rubber stamp that says “in the event of a conflict, mine governs.” That only benefits the folks who sell rubber stamps.) Even more important, regardless of who goes first, is to never ever ever ever ever send anyone a signed contract at the outset. The contract should be signed only after all parties have had a chance to review, make comments, propose changes, attach riders, and agree upon a final version. Otherwise, the party receiving the signed contract will simply strike out or amend the language they don’t like…or, worse, attach a rider…sign it, and return it…which, legally, constitutes a counter-offer and not an enforceable contract. (Actually, it “could” be enforceable, but this gets into complex legal issues which could all be avoided if everyone just sent one another blank contracts and waited until all issues had been resolved before anyone signed anything!) I realize that it takes time to review, negotiate, and amend every contract. However, that’s what contracts are for. It gives each party a chance to make sure that all important issues have been addressed and that there will be no unstated expectations or assumptions. Contracts are not about enforcement…they are about avoiding conflicts and disappointment. Without question, life would be easier if there were standard contracts and terms that worked for every engagement. However, we work in the arts. Nothing is normal and nothing is customary. If you are looking for consistency, go work in a bank. Otherwise, learn to embrace the chaos. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:agent, amendments, artist, assumptions, Brian Taylor, conflict, contract, Contracts, enforceable contract, engagement contract, fee negotiations, Goldstein, negotiation, venue
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Presenters, Touring, Venues | Comments Closed
Wednesday, June 12th, 2013
By Robyn Guilliams Dear Law and Disorder, I run a small nonprofit presenting organization. We recently received an email from a patron who wanted to attend a particular performance, and he asked if we provide accommodations for the deaf. He indicated that either an American Sign Language interpreter or some sort of close captioning system would suffice. We responded and told him that we did not provide those sorts of accommodations because we can’t afford it. We suggested that he reserve a seat towards the front of the venue to enhance his ability to see the performance without any interference. He then wrote back, stating that he was making a request for a reasonable accommodation under the Americans with Disabilities Act and asking that we respond with accommodation specifications within 48 hours. I don’t believe that this is a reasonable request for a nonprofit organization. We don’t have the capability for close captioning, and we would be required to spend $500 to $800 on a sign interpreter. How should I respond?? You should respond that your organization would be happy to provide a sign interpreter for this gentleman! The Americans with Disabilities Act (“ADA”) requires that all “public accommodations” – that is, virtually any facility that is open to the public – provide auxiliary aids and services to ensure effective communication access to their deaf and hearing-impaired patrons and customers. This applies to for-profit businesses and nonprofits, both large and small! For a theater or other performing arts venue, the most appropriate auxiliary aids usually are sign language interpreters and real-time close captioning devices. The idea behind the ADA is to ensure that no one with a disability is excluded, denied services, segregated or otherwise treated differently than others because of barriers or the absence of auxiliary aids. While the cost of a sign interpreter may seem daunting to small organizations, consider it a cost of doing business (yes, nonprofits – you are “doing business” by presenting performing arts presentations to the public!) and factor that cost into your budget. The ADA does provide an exception to the auxiliary aids requirement if providing these aids would result in an “undue burden” (i.e., “significant difficulty or expense”) to the business. However, this “burden” must be truly significant for the exception to apply. Must every venue install high-tech close-captioning technology to accommodate the deaf and hearing impaired? No. Nor must a venue hire an ASL interpreter for every performance. A patron who arrives at a performance and demands an auxiliary aid with no advance notice may be out of luck. However, when a patron makes a timely request for a sign language interpreter, the venue must make its best efforts to fulfill that request. A few other notes to keep in mind: The “reasonable accommodations” (e.g., the sign language interpreter) must be paid for by the place of public accommodation. The costs cannot be passed on to the individual with a disability! A place of public accommodation must provide services in an “integrated” setting. This means that the deaf or hearing-impaired patron cannot be excluded from enjoying a performance along with the rest of the audience. As an example, it’s not acceptable to set up a close-captioned television feed in an area separate and apart from where the performance is happening. If close-captioning is offered, it must allow the hearing-impaired patron to enjoy the performance in the same space as the rest of the audience. The deaf or hearing-impaired patron has the choice of which accommodation best fits his or her communication needs; however, an equally effective substitute may be provided if the original request is unreasonable or unfillable. In theory, the ADA codifies what should already be pervasive throughout the performing arts: an embrace of inclusivity. More practically, whether or not you agree with the ADA, the cost of ADA compliance is far less than the costs of non-compliance, which can be excessive. There are grants and foundations which may available to help you offset the costs of accommodating your disabled patrons. This may also be a good time to use this occasion to review your ADA policies and procedures, including how your staff and volunteers respond to ADA compliance requests and patrons with special needs. An insensitive response can send an embarrassed or angry patron directly to an attorney. As with any issue, it’s always easier to address problems and complaints before they arise. ________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:ada, americans with disabilities act, audience members, nonprofit organization, patrons, public accommodations, reasonable accommodation, Robyn Guilliams, sign language interpreter
Posted in Arts Management, For Profits, Law and Disorder: Performing Arts Division, Liability, Non-Profits, Presenters, Venues | Comments Closed