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

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The Divine Right To Cancel

Thursday, February 12th, 2015

By Brian Taylor Goldstein, Esq.   

We were in the process of booking one of our singers with an orchestra, when we encountered the following Force Majeure clause in the orchestra’s contract: “If, as a result of any event beyond the control of the Orchestra, including, but not limited to, war, national calamity, strike, labor relations, lack of funds, poor ticket sales, or other Acts of God or force majeure of any kind or nature, Orchestra determines it necessary to suspend, cancel, or terminate the giving of any of the performances specified herein, then the Orchestra, in its sole discretion, shall have the right to do so by giving notice to the Artist. Upon such notice, the Orchestra and Artist shall be relieved from any further obligations under this Agreement without any liability of either party to the other for any damages arising from such suspension, cancelation, or termination.” We asked if they would strike the reference to “lack of funds” and “poor ticket sales”, but we were told that their contracts must be approved by their board of directors and, as such, nothing can be changed. Have you encountered this before? Do you have any advice on how to respond?   

Telling someone that a contract cannot be changed because their board of directors says it can’t be changed is the equivalent of a parent telling a child “because I said so.” As I am frequently reminded when faced with the manifest irrationalities of my own parents: do not engage and back away.

I actually don’t doubt that the orchestra’s board of directors did, in fact, suggest and recommend such language. It’s just the type of thing a poorly formed board of wealthy corporate donors with no actual arts experience would come up with. (It brings to mind an occasion when I was called in to consult with a board of directors who was insisting that no season could be planned or programmed unless the artistic director was willing to guarantee exactly how many tickets would be sold to each performance!) Regardless, such language is absurd and quite frankly, insulting and unprofessional.

It is absurd because, as I have previously written, a force majeure clause is supposed to be limited to events truly beyond anyone’s control: floods, snowstorms, terrorist attacks, etc. Ticket sales and funding are not determined either by serendipity or the intervention of divine energies (though I often suspect many strategic plans are based on such notions.) I find it insulting and unprofessional because the orchestra’s board of directors is trying to obfuscate a cancellation provision under the pretext of a force majeure clause. By defining force majeure to include “lack of funds” and “poor ticket sales” the orchestra is attempting to give itself the luxury of being able to cancel at any time for any reason with no liability or consequence. Contractually, this would render the Agreement terminable at will by the orchestra and, thus, meaningless for the Artist.

As a compromise, I would propose amending the force majeure clause and adding to the agreement a proper cancellation clause whereby, if the Orchestra felt that it needed to cancel due to “lack of funds” or “poor ticket sales” then they would have the right to do so by paying a specific, pre-determined cancellation fee. If the orchestra refuses such a reasonable alternative, then I would simply thank the orchestra for its time and walk away.

I realize, of course, that, in practical terms, artists are not always in a position to walk away. Just like good art always requires risk, occasionally this applies to deals and negotiations as well. Perhaps the artist is young and needs engagements. Or perhaps the engagement presents an artistic or resume-building opportunity to the artist. Those might be reasonable reasons to take a risk. However, such risky transactions must be entered into with eyes wide open as opposed to wide shut. As the artist’s manager, it falls to you to make sure the artist understands the risks and that both of you understand that, should the orchestra avail itself of its contractually unfettered right to cancel, you will accept that and, whilst reserving the right to swoon, sway, and cry foul, resist the temptation to threaten a frivolous lawsuit.

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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 and/or posthumously.

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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!

 

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Posted in Acts of God, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Non-Profits, Presenters, Venues | Comments Closed

When Happy Cookies Lead To Bad Decisions!

Thursday, January 22nd, 2015

By Brian Taylor Goldstein, Esq.   

We recently had an incident where the Executive Director of an organization that presented one of our artists gave him a cookie with a controlled substance in it at a reception after the performance. Admittedly, the substance was legal in the presenter’s state, but it made the artist (who was young and didn’t think to ask) very ill. The artist recovered and because nothing serious happened, we didn’t want to make too big of a deal out of it because we frequently book artists with this presenter. However, it got us thinking, are we liable if someone injures one of our artists at an engagement?

As you can imagine, while we have the privilege of working with some of the most respected professionals in the arts industry, we are also often confronted with the denizens of the lower fathoms of the gene pool: from the children’s theater who knowingly hired an actor listed on a sexual predator list (because the Artistic Director agreed to “keep an eye on him”!) to a diva who offered an immigration officer sexual favors in exchange for letting her into the US without a visa (cash would have been more prudent!) And now, we can nominate this Executive Director for this year’s award. He or she has demonstrated not merely a lack of judgment, but a lack of common sense at the most basic and rudimentary level, putting everyone at risk.

Offering an artist, or anyone, candy or food containing any substance not reasonably expected to be in food not only constitutes a reckless disregard for safety, but could also constitute criminal negligence. What if the artist had been on medication that interacted with the illegal substance? Or what if the artist had an allergy? Had, God forbid, the artist died as a result, this would have constituted a felony. It has nothing to do about the legality or illegality of the particular substance. Glass is legal, but you can’t put broken glass into a cupcake without a label saying “Warning, this cupcake contains bits of glass.” The fact that the artist was young and didn’t think to ask is also irrelevant. No one, child or adult, is expected to ask: “Excuse me, are their drugs in this cookie?” It’s one thing if someone is allergic to peanuts or is lactose intolerant. More or less, it’s up to them to make the necessary enquiries. However, it’s another scenario entirely if someone is offered aspirin, snake venom, staples, paper clips, or bat wings—all of which are legal substances—masquerading as common baked goods.

It’s great that the artist recovered and was not seriously ill. And I’m not suggesting that you overreact. However, you also can’t simply ignore the situation. Moreover, as an artist representative with a legal, as well as moral and ethical, duty to protect the interests of your artist above all others, which do you think takes precedence: your own, personal and professional relationship with the presenter or the fact that the presenter could have killed your artist? (Don’t answer this. Its rhetorical.)

You are not liable if one of your artists gets injured at an engagement unless you knowingly expose them to a risk, disregard a negligent or dangerous situation, or otherwise fail to exercise a reasonable duty of care. Assuming you or your organization had no reason to suspect that the Executive Director was dabbling in kitchen chemistry, then you would not be liable. However, should you book another artist with this presenter, and should this same Executive Director offer another artist a “happy cookie”, causing another artist to get sick, and you failed to warn your artist in advance not to eat anything, then by disregarding the prior situation, and knowingly exposing your artist to a potentially dangerous encounter, not only would your organization be liable, but you could be personally liable as well.

At the very least, assuming the presenting organization is a non-profit, you should contact the Chairman of the Board and let them know what happened. It would then be the responsibility of the Board of Directors either to fire the Executive Director or take steps to prevent a future occurrence. If the board decides that having an Executive Director who makes terrible decisions is the right person for the post of ultimate decision maker, and this happens again, then not only would the presenting organization be liable, but the individual members of its Board of Directors could be liable as well. Arts organizations, both for-profit and non-profit, should be organizations that foster, encourage, and support the very best and brightest in our industry, not refuges that provide job security to those who simply can’t find employment elsewhere.

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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 and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Presenting: What’s In A Name?

Thursday, December 18th, 2014

By Brian Taylor Goldstein, Esq.   

I work for a small performing arts organization which performs each year in a tax-payer funded, non-traditional space. The venue makes itself available for rental as an event space. In the past, we have been allowed to pay them a reduced rental rate in exchange for a full-page ad in our program and recognition as a lead sponsor. Additionally, we regularly receive glowing reviews in local and national media that prominently feature color photos and positive mentions of the venue, which our audiences and reviewers (and we!) view as critical to our work and to our experience.  This year they have asked for additional money in order to cover what they claim are increased maintenance costs. This would be a significant burden for us, as we are a small non-profit and we are already cutting expenses. We did not budget or anticipate an increase rental fee. They have suggested that they will waive the fee increase if we agree to bill them as a “presenter.” We are certainly open to the idea, but would like to understand what “presenter” typically means in this context. What would that word represent to our audiences and other organizations? What could we reasonably ask of them, financially or otherwise, in exchange for such billing? The venue does not produce, and rarely hosts other arts performances.

“Presenter” is one of those performing arts industry terms that can take on many different connotations and meanings depending upon the context and whom you ask. Legally, on its own, it is not self-defining. Like terms such as “hold”, “commission”, or “cancellation”, there is no official grimoire of terms or official definitions that are “industry standard.”  Contractually, it means whatever the specific parties agree it means.

The better, or, should I say, more meaningful question is what implications listing them as a “presenter” would have in the minds of third parties critical to you and your organization, such as your audience, reviewers, and donors.  In this context, the term “presenter” becomes more of a branding or marketing issue than anything else.

For most folks within the performing arts industry, being a “presenter” carries a curatorial implication. A presenter is usually perceived as an individual or organization that has used its own artistic judgment to select a production or performance that reflects its mission, has artistic merit, and meets the standards expected of the presenting venue or institution.  However, the general public typically approaches this far differently.

Many venues produce and present performances as well as rent their spaces out to others. Most people do not realize this, much less make a distinction—or even care. Whether the Vienna Philharmonic performs at Carnegie Hall or Applebees, the average audience member, rightly or wrongly, usually assumes that wherever they are physically sitting at the time is the entity that is responsible for producing or presenting the performance they are watching. (Chicken wings and Mozart—what a concept!) Its sort of like blaming the waiter for over-cooking your steak—whoever presents the meal will enjoy the credit or the blame.

If your venue is asking to be billed as a “presenter” then it probably means they want to be seen as having discriminating tastes in deciding whom to allow to pay their rental fee. Perhaps they want to leverage some artistic credibility for marketing purposes or perhaps they are simply trying to justify their public funding by showing that they are more than just a commercial rental space. Either way, they obviously want to ride your coat tails. Fine. You wouldn’t be the first entity to leverage a little artistic integrity in exchange for survival. By acknowledging them as a lead sponsor, your audience has probably been giving the venue credit for the success of your performances anyway. Just make sure that your program, credits, billing, and other marketing materials continue to emphasize that it is you and your artistic team that are responsible for your work. And make sure that your written agreement with them clearly specifies the exact wording of the billing they will receive. Leave nothing to misinterpretation or chance. You might even ask to have approval over any marketing or publicity the venue issues on its own.

As for what you could reasonably ask of them, financially or otherwise, in exchange for such billing: There is nothing to “ask.” They have already set the price. You would agree to credit them as a presenter in exchange for letting you rent the space for a lower fee. Now is not the time for counter offers to try and get further concessions from them. Your immediate goal should be to avoid having to find a new venue or spend money you didn’t budget for, not win a negotiation challenge on “The Apprentice.”

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HAPPY HOLIDAYS

We will be taking a short break from the blog until January 7, 2015. 

Please click on the photo to enjoy our gift to you. 

GG Holiday 2014

Presenting the Dancing GG Arts Law Holiday Elves: Brian, Robyn and Ann

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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 and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

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

Is There A Showcase Visa Exception?

Thursday, December 4th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We have arranged for one of our foreign groups to perform a showcase at the upcoming APAP conference in New York. Will they need artist visas? Obviously, we’d like to avoid that time and expense. The artists are all from Europe and could enter as visitors under ESTA. Couldn’t we just say that the performance is intended to educate presenters and the US market about the group and is, thus, “educational”?

Nice try. Please see the bailiff on the way out to make arrangements to pay your fines and penalties. While visitors to the US are permitted to attend seminars or engage in “short courses of study”, the education must be for the benefit of the visitor, not the audience. When traveling through the demented kingdom of US arts immigration, never take a circuitous route through the fire swamp of cute arguments and clever schemes on the rare occasion when a straightforward path may actually present itself.

The official rule is and has always been that artists cannot perform in visitor status (which means either entry with an actual visitor visa or entry through the visa-waiver/ESTA programme.)  If an artist performs in the US (and does not have either a student (F) visa approved for “practical training” or a similar training-based visa such as a J or M), then the artist must have either an O or P visa. It doesn’t matter if the artist isn’t being paid. It doesn’t matter if tickets are free. It doesn’t matter if the audience is enthralled, inspired, impoverished, infirmed, intoxicated, or indifferent. Any performance in front of an audience triggers the need for an O or P visa.

HOWEVER, an artist IS allowed to enter the US in visitor and/or ESTA status and perform if the performance constitutes an “audition.” Several years ago, USCIS clarified that “showcases” at official booking conferences such as Arts Midwest, APAP, etc. could qualify for this exception provided certain conditions were met:

(1) The showcase cannot be open to the public (regardless of whether or not tickets are sold or free);

(2) The performance can only be for the benefit of registered conference attendees; and

(3) The artist(s) cannot engage in any other performances while in the US.

So, if your showcase is of the variety that are held in one of the ersatz performance spaces at the Hilton and open only to official, registered conference attendees with official, multi-beribboned badges, then you are in luck. On the other hand, if your showcase is of the kind that are held around New York City in an actual performance space where the general public will be attending, but APAP conference registrants can come for free, then your artists will need O or P visas. In other words, its not enough merely to call a performance a showcase—it must be an APAP-only showcase or it doesn’t count.

If you believe that your artists qualify for the showcase/audition exception, then I would still strongly recommend that each artist travels and enters the US with a signed letter from you, on your official letterhead, confirming their entry and departure dates and confirming that all of the above-conditions are met.

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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 and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

 

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

How Is Copyright Infringement Like An Ugly Car?

Thursday, November 20th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

What rights does a translator have? I translated a non-English script into English. All of the prior translations were very bad, which is why I did my own.  Everyone agrees mine is the best, even the original author. However, now that I am getting offers to produce my English version, the author and his publisher are insisting that, if I want to proceed, then they will own the translation and just pay me royalties for English productions using my translation. That doesn’t seem fair. The translation is all my work. I thought translators own the copyrights in their translations, so, don’t I already own it?

Robyn always tells me I never met an analogy I didn’t like, and I feel one coming on now.

Let’s assume I own a car which drives well, but is a hideous colour of besmirched baby blue (which, as it happens, was, in fact, the hideous colour of the first car I ever owned—a ’72 Buick Skylark which had belong to my grandfather, but I digress). You believe that you can re-paint my car and make it look like a Ferrari and offer to do so. Assuming I accept your offer, just because you paint my car doesn’t mean you now own the car or have any rights to drive it. I might owe you for your time and materials, but even if you make the car look better, the car itself still belongs to me. More importantly, let’s assume that I decline your offer, but you break into my garage and paint my car anyway. Even if you were somehow successful in turning my Buick into a Ferrari, you would still not have any ownership rights or control. You’d also be guilty of trespassing. (Incidentally, my mother did this very thing, erroneously believing that I would be touched and delighted with her thoughtfulness in having my car repainted, without my knowledge, from besmirched baby blue to her choice of vibrant puce. I was not.)

A copyright is like a car. The owner of a copyright has the exclusive right to determine who uses it and how—including the rights to edit it, make copies of it, perform it, record it, re-arrange it, re-orchestrate it, translate it, or create derivative works from it. A “derivative” work is anything that “derives” from the original work, such as a play or novel made into a film, a composition used to create a toy music box, etc. In short, there is nothing you can do without the owner’s permission and, in exchange for such permission, the owner can set any terms, reasonable or unreasonable, that the owner wants—including the right to refuse permission entirely. (Ok, there are one two minor exceptions, but they don’t apply to your question.)

If you want to translate someone else’s work, you must have the original author’s permission. If you don’t like the terms of the author’s permission, don’t do the translation and move on to another project. You are correct that, if translations contain a sufficient amount of creativity (as opposed to, say, a Google translation), then the translation is, itself, subject to its own copyright owned by the translator. However—and this is a BIG “however”—if you didn’t have the original author’s permission to make the translation in the first place, then your copyright is meaningless. It doesn’t matter how artistically nuanced, sensitive, or authentic it may be. As an unauthorized translation, any use of the translation would constitute an infringement of the original author’s copyright. Owning the copyright in the translation merely gives you the right to stop others, including the original author, from using it, but it doesn’t give you any right to use it without the original author’s permission.

Learn from my Mother—step away from the car!

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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 and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Publishing | Comments Closed

“Leave Here and You Die!” Unenforceable Non-Compete Agreements

Thursday, November 13th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

The management company where I work has asked me to sign a non-compete agreement saying that, if I ever quit or am fired, I would be prohibited from working as a manager or agent anywhere in the world for one year after I leave. The owner also contends that the names and addresses of all venues belong to him and that I cannot contact any presenters or venue where I booked an artist for him. Do I have to sign this? Is this reasonable?  

You never have to sign anything. Can an employer require an employee to sign a non-compete or be fired? Under certain circumstances, yes. Are the terms you describe reasonable? Hardly. More importantly, even if you signed it, I doubt very much that such an agreement would be enforceable.  

In most instances, parties can use a contract to negotiate and agree to just about anything: how and when artists are paid, how commission are calculated, how rights are transferred or licensed, who files and pays for visa petitions, how royalties are calculated, whether the artist gets still or sparkling water in the dressing room, liability, insurance, benefits, salaries—the list is practically endless. However, there are certain instances—albeit rare—when a contractual term will be rendered void or unenforceable. Such instances include:

(1) When a contract either requires a party to do something which would be illegal or refrain from doing something which they have a legal obligation to do.

(2) When a contract term violates an existing law or policy which courts have decided cannot be altered.

Contracts are governed by state laws. In this case, most state laws (particularly the State of New York) will not enforce a non-compete agreement which a judge determines to be “unreasonable” or “over-reaching”—even if the parties agree to it. Reams and reams of case law have determined that prohibiting an ex-employee from working with current clients of the employer is reasonable, but only for a reasonable amount of time—such as a year or two (sometimes longer depending upon the specific circumstances.) However, unless an ex-employee was also the CEO or President of the company, prohibiting an ex-employer from being able to work in the industry in which they earn a living is considered inherently un-reasonable and never enforceable. Simply put, no employer ever has the right to force an ex-employee to move to a different state, change careers, or be rendered unemployable. If the situation were otherwise, too many employers could use the threat of termination to induce or force employees to sign unreasonable non-compete agreements.

As far protecting the confidential or propriety information of an employer, a court will enforce such an agreement provided the information was confidential or proprietary to begin with. Under the Law of Agency, when someone represents someone else, all information belongs to the person they represent. With regard to the arts and entertainment field, any information pertaining to an artist—engagement agreements, the names and contact information of any venues or presenters a manager or agent has contacted on behalf of the artist, the terms of any engagements under negotiation or discussion, etc—all belong to the artist, not the artist’s manager or agent. Moreover, names and addresses are never “proprietary.” The term “proprietary” refers to something unique created or invented by an employer and specific to that employer—such as the colonel’s secret chicken recipe, internal operating procedures or budgets, mark ups, etc. Simply because a manager or agent writes down the name and address of a venue does not make it proprietary. To be sure, an employee, much less an ex-employee, is never permitted to take the physical property or download the files of an employer. However, if something such as names and addresses can be found elsewhere—such as on the internet, in a published list, or is otherwise publically available—then you are free to compile your own list of such information.

As for not being able to book or contact any venues or presenters where you booked artists for a former employer, once again, whether or not this would be enforceable would depend on the “reasonability” of the restriction. If were are talking about a prohibition against contacting particular venues in a particular region for a reasonable period of time, that would probably be enforceable. However, if enforcement of such a restriction would prohibit you from being able to book any artists at any venues in the United States or world-wide that would never be enforceable.

It’s frustrating enough when an artist leaves a roster—its even more so when a trusted employee quits and takes an artist with them. In a highly competitive and risky business, its understandable that artist managements and agencies are looking for ways to protect their interests and livelihoods. However, draconian contracts, strong arm tactics, and paranoia, though frequently embraced, are never appropriate or productive solutions.

Just because an agreement may be unenforceable does not mean you should sign it anyway. An angry and emotional ex-employer may still try to enforce it, requiring you to spend legal fees and court costs getting a judge to throw it out of court. You never want to enter into any agreement knowing at the outset that it will lead to a lawsuit—even if it’s a lawsuit you believe you will win. Certainly, if you are ever asked to sign such an agreement as a condition of employment, run away. However, if your current employer is insisting that you either sign or face unemployment, and a calm discussion offering reasonable restrictions and alternatives falls on deaf ears, you may have no choice but to run the red light and tear up the ticket later.

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

 

 

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

Avoiding A Visa Interview…Sometimes…Maybe…

Thursday, November 6th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I had a really interesting conversation with a consular officer at a U.S. consulate where we were having one of our groups apply for P visas. Our group has toured the U.S. many times and the officer mentioned that P class petitioners do not need to come back in for interviews if they renew their visas within 48 months of their last visa. They can just mail them in through a courier service associated with a local bank. She said that this was true in other countries as well, though the specifics are slightly different in other countries. Are you familiar with this?

Yes, I am familiar with this. What the officer is talking about is a discretionary policy whereby certain individuals under certain circumstances may not be required to have a visa interview at the U.S. consulate if they are applying for a visa in the same category as a visa previously issued to such person. However, before you get too excited, remember that nothing in the tortured realm of U.S. immigration policies and procedures is ever as simple or as straightforward as it may first seem. There are several pitfalls to be aware of.

First, this has nothing to do with avoiding the petition process. Regardless of how many O or P visas an artist may have previously held, all new O and P visas require a visa petition to be filed with and approved by USCIS (United States Citizenship and Immigration Services.) The policy at issue here is whether or not, after approval, an artist may be able to avoid physically appearing at a U.S. Consulate in order for the visa to be issued.

Second, the “interview waiver” policy is determined on a consulate-by-consulate basis and it is by no means a uniform policy at all U.S. consulates. Some consulates may allow this for O and P visas, while others may allow this only for O visas, and still others may allow this for O-1 and P-1 visas, but not O-2 or P-1S visas. And others may not allow this at all. Even where it is available, a consulate might still require citizens of certain countries to come in for an interview anyway. The only way to determine which consulates do and do not allow for visa interviews to be waived under certain circumstances and, if available, the specific process for obtaining a visa without an interview, is to check the website of the specific consulate where the artist will be applying for the visa.

Third, unless there is enough time to deal with glitches and delays, I always encourage artists to appear personally even if they qualify for an interview waiver. Why? Read on…

A pianist who had multiple O-1 visas in the past did not, understandably, want to go to yet another interview at a U.S. Consulate. So, you can imagine her joy when, upon completing her DS-160 (visa application) form on the website of the U.S. Consulate, she learned that she qualified for an interview waiver. She ecstatically selected the interview waiver option on the DS-160, mailed in her passport using the courier service…and her passport never arrived at the consulate. It was lost. Ultimately, she had to obtain a new passport and apply in person, causing a delay of several weeks and the cancellation of several engagements on her tour.

Similarly, another artist who also met the qualifications for an interview waiver, mailed in his passport and, after three weeks of waiting, was informed that he was being required to schedule an interview anyway. Even where an artist meets the requirements for an interview waiver, a consulate always retains the discretion to require a personal interview under any circumstances. Unfortunately, there’s no particular requirement that they inform you of this in a timely fashion.

As fond as I am of sweeping generalizations, they are never applicable in all circumstances. For every tale of problems or delays, there are just as many positive experiences. Nonetheless, its always safe to assume that when dealing with any situation—immigration related or otherwise—in which the outcome you seek will ultimately depend upon a harmonic convergence of timing, competency, and karma, assume otherwise and plan accordingly.

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

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

Whose Lawsuit Is It Anyway?

Thursday, October 30th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

I’m dealing with a presenter who wants to cancel two weeks out due to poor ticket sales. While it’s not a huge engagement fee, my artist has already contracted its performers and paid out expenses for the date as its part of a bigger tour. I have a cancelation clause in my contract and I’ve explained what canceling would mean and that the presenter will be on the hook. However, he still wants to cancel. Its been a rough year and I can’t afford legal counsel. Do you have any suggestions?

At least the presenter is not trying to claim that poor ticket sales constitutes an act of God. While I am familiar with many organizations whose strategic plans require some degree of divine intervention to stay operational, God rarely takes an interest in ticket sales.

If you have a cancellation clause in your contract, then that will govern the legal remedies for the situation. Contractually, the presenter either has the option of either proceeding with the engagement or cancelling and abiding by the terms of the cancellation clause (which, I am hoping, spells out how much the artist is owed in the event of cancellation). If the presenter elects to cancel, but refuses to honour the terms of the cancellation clause, that would constitute a breach of contract…which really just gives the artist the right to sue the presenter, obtain a judgment, and, hopefully, collect the judgment. Whether or not attorney fees, interest, or court costs would also be part of the judgment depends on the terms of your contract as a judge has no authority to awards such costs unless the contract requires them. However, regardless of the terms of your contract, a lawsuit should always be the last resort under any circumstances.

Have you tried discussing with the presenter any solutions for increasing ticket sales or promoting the performance? Does your artist’s shows typically sell at the last minute? Has the artist ever performed in this market before? Don’t presume the presenter knows its own market or how to sell your artist in that market better than you do. You may have ideas for selling tickets that the presenter has not considered.

Is the person you are dealing with the final decision maker in the organization? If not, don’t hesitate to go over their head. Don’t threaten—just do it! If the presenter is a non-profit organization, then even the president or executive director reports to the board of directors. Contact the board president or an officer of the board. Often board members are far less cavalier about breaching contracts than an organization’s administrative staff. Its very possible that the board doesn’t even know about the situation as many presidents and CEOs are quite proficient at keeping their boards on a need-to-know basis.

If the presenter refuses to honour the cancellation clause, resist the urge to scream, threaten anyone’s reputation, or toilet paper the venue. While tempting, those options rarely work and will almost always make the situation worse. Ultimately, the decision as to whether or not to file a lawsuit, along with costs and expenses of filing the lawsuit, belong to your artist, not to you. Regardless of whether or not you signed the contract, if the contract is between the presenter and your artist, then all legal claims belong to the artist and only the artist can file a lawsuit and appear in court. You should not be paying or incurring any legal fees out of your own pocket. Unless you, too, are operating as a charitable institution, if the artist wants to pursue a lawsuit, that is their cost burden to bear, not yours.

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Enter the Cockroach, Stage Left

Thursday, October 23rd, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

My artist has an O-1 visa which expires in April 2015. We want to add a new engagement in May 2015. Can we just file for a “visa extension” or do we have to file a whole new petition?

Your question contains the implication that filing for a “visa extension” is somehow a different or easier process than filing “a whole new petition.” Understandably, many people like to presume that an important government agency with a lofty name such as United States Citizenship and Immigration Services (USCIS), which operates under the supervision of the even loftier agency known as the Department of Homeland Security, has employed the utmost care and sophistication in crafting procedures and regulations that are efficient, coherent, and germane to its mission. Instead, USCIS is more like an absurdist play where the role of USCIS is portrayed as a giant cockroach holding a bouquet of balloons and pushing a baby carriage full of bouncing pink puppies. Oh, yes, and the cockroach is wearing a green fedora and a polka-dot bow tie. It also periodically excretes caramel apples. Nothing is what it seems!

Simply put, the term “extension” is not a short cut around the visa petition process. Anything that requires USCIS approval–amending a visa, adding time to a visa, changing support staff, correcting a mistake on a visa, etc.—requires a shiny, new visa petition, along with the requisite petition forms, filing fees, union consultation fees, documents, and evidence. There are no shortcuts. However, in practical terms, if you are dealing with a recently filed petition, then you will probably just be cutting, pasting, and copying from the recently filed petition. Aside from the fees and costs, it shouldn’t take you much time at all.

So what does the term “visa extension” actually mean? It refers to the box you check on the I-129 visa petition form. If the artist is present in the United States, doesn’t want to leave, and wants additional time added to their visa so they can stick around and perform the additional engagement, then you check box 4(c) in Part 2 of the I-129 form indicating that the artist is present in the United States and wants to “extend” his or her visa. On the other hand, if the artist is outside of the United States and needs additional time so they can re-enter the United States to perform an additional engagement, then you check box 4(a) in Part 2 of the I-129 form indicating that the artist will either enter before their current visa expires or will pick up a new visa at a consulate. Aside from checking different boxes, everything else is the same. Either way, you are still required to prepare and file “a whole new petition.”

To address what I suspect is an additional source of the terminological confusion, there is, indeed, a provision buried in the USCIS regulations that permits an individual who holds an O-1 visa to obtain a 1 year “extension.” However, this only applies to an O-1 who will be doing the same job for the same employer under the same terms as listed on the original O-1 petition. As the O-1 visa category covers more than artists, this was intended to cover a foreign individual who holds a full time job with one employer and simply wants to keep doing what he or she has been doing (ie: a corporate executive). In other words, except, perhaps, for an artistic director or administrative position, this will rarely, if ever, be applicable to a performing artist. Moreover, as the grinning cockroach will gleefully remind you, even this requires a new petition, filing fee, forms, and supporting materials, so it doesn’t actually save anyone much in terms of time or expense anyway. Like everything else in this absurdist play, its simply there to toy with your senses

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Bring Out Your Dead!

Thursday, October 9th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

Many years ago I hired an attorney to create an LLC for me, but I wound up never using it. Recently, I was presented with another business opportunity, but I’d like to have an LLC to do this. Can I still use the original LLC even though it would be for an entirely different purpose? I’d hate to have to hire an attorney to create a new one as the last one was very expensive.

When you create a corporate entity, such as a Limited Liability Company (LLC), a C-corporation or S-corporation, its like creating a living creature. It has its own legal identity, pays its own taxes, and can sue and be sued entirely separate from its owners. However, like leaving a fish abandoned in a fishbowl, if you ignore it, don’t feed it, and don’t change the water, it will die.

Corporate entities such as LLCs are created and formed in the state where they are located. Once formed, most states require the payment of a yearly registration fee to keep the entity “alive.” If the fee is not paid, the entity will be listed as “inactive” (ie: put into a medically induced coma.) While you can often pay the past due fees and make it “active” again, if it stays “inactive” for too long it will be removed from life support and you will have to start all over again. Also, even if you could somehow resurrect a dead corporate entity, unless they were originally created to be generic, such entities can’t be used for different purposes than those for which they were originally created. For example, if you created an LLC to represent artists, you can just use the same entity to operate a record company or produce a play.

However, whether you are creating a new corporate entity or resurrecting an old one, the process does not require an attorney and should never be “very expensive.” I have heard of people paying attorneys $5000 – $10,000 for this process which is, quite frankly, insane. Creating an LLC, C-corporation, or S-corporation in most states only requires a simple form or two (most of which can almost always either be downloaded or completed on-line) and the payment of a registration/filing fee. Often, its advisable to consult with an attorney or an accountant (or both) about the various legal and tax implications of different corporate entities, as well as to flag any potential business or legal pitfalls. Also, if your entity will involve more than one owner or partner, then you will want an operating agreement or shareholder agreement, and possibly even some by-laws to make sure everyone knows who’s in charge, how decisions are made, how to bail out, etc. However, unless you are creating an entity which will be involved with complex securities and exchange transactions or plan to do a corporate takeover of Apple or AT&T, the forming of the entity itself is quite simple. If you can complete your name and address (which I do acknowledge is more challenging for some that others), you can create and register an LLC.

___________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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Posted in Arts Management, For Profits, Law and Disorder: Performing Arts Division, Limited Liability Companies, Non-Profits | Comments Closed

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