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• A National Ban on Performance Exclusivity Clauses   • Posting Recordings on Websites • Artist Visa News, Nausea & Updates  • Your Contract Playlist    

Monday, June 24th, 2024

LAW & DISORDER

Performing Arts Division

June 25, 2024  

INSIDE THIS ISSUE:

• A National Ban on Performance Exclusivity Clauses  

• Posting Recordings on Websites

• Artist Visa News, Nausea & Updates 

• Your Contract Playlist    

 

Legal Issue of the Month:

Will a New National Ban on Non-Compete Agreements Also Apply to Performance Exclusivity Clauses? 

 

 

You may recall (or not, that’s ok, too) that in our last newsletter we discussed that on April 23, 2024, the Federal Trade Commission (FTC) issued a nation-wide ruling banning non-compete clauses in all employment contracts, regardless whether an individual is hired as an actual “employee” or as an independent contractor, paid or unpaid, an intern, or a sub-contractor hired to provide service to another party’s client or customer. You can read the announcement HERE.

Further review and analysis have shown that this new ruling, should it go into effect, will also prohibit venues and presenters from including any language in their engagement agreements restricting or prohibiting where an artist can perform before or after an artist’s performance. In other words, should the Grunion Run Performing Arts Center engage the Willy Tugger Jazz Band, they could not prohibit the band from performing two days later at the Annual Grunion Run Mayonnaise Festival where admission is free. Of course, regardless of the future contractual enforceability of a performance exclusivity clause, any artist who actually did this would be hammering a nail deep into the coffin of their touring career. 

Whilst the official effective date has yet to be announced, unless the new regulation is pre-empted by a lawsuit or other judicial action, then the ruling will likely go into effect sometime in Fall 2024.

 

 

 

Dear Law and Disorder:

Actual questions we get asked and the answers people actually don’t want

“With thanks, your friendly, neighbourhood car thief”

Dear Law & Disorder:

I want to post a video on my website that I found on the internet that would be perfect for my new project. I will give full credit to the musician, including the musician’s original link, would this be legal? And can you please specify on what full credit means.

A “copyright” is literally the right to make copies. A copyright “infringement” is when you make a copy of something without the owner’s permission. Almost everything you can find on the internet (photos, images, videos, text, etc.) is someone else’s property. Part of the challenge of understanding digital rights is that the ease with which we can download and copy materials on the internet tends to make us forget that copying any materials without permission is still copyright infringement. Without question, many people post pictures, videos, and other materials and are more than happy to have others repost and share them; but that decision is entirely up to the person who owns the materials. In other words, just because a car is parked on the street, doesn’t mean it’s free for the taking. As for giving “full credit,” that’s like stealing a car, but leaving a thank you note on the owner’s door. It doesn’t make it any less a crime.

If you want to get actual permission to post a video, photograph, or any other copyrighted material on your website, then you need to get permission (aka “a license”) from the owner—which may or may not be the artist. The better option would be for you to post a link to the video rather than post the video itself. In other words, you would be inviting your readers to go to YouTube or the artist’s own website to view the video. This way, the owner can control whether or not they want the video to be shared.

And now, the part you’ve all been waiting for……

Artist Visa News, Nausea

& Updates

 

Most of you know by now that between December 2023 and April 2024, USCIS implemented a number of new filing fees and policies purportedly designed to “maintain adequate service.” Please Note: I did not make that part up. This is direct quote from the preamble to the Final Rule issued by USCIS on January 31, 2024 in which it sets out the goals of its new rules and policies: Not to “improve service” or even “increase processing times,” but to aspire to the lofty and inspired goal of “maintain adequate service.” You can read it for yourself HERE. That’s only slightly less disingenuous than a mobile service touting a 6G upgrade of two tin cans and piece of string.

USCIS, far from its delusions of adequacy, instead has taken an already broken system, smashed it into more pieces, glued it back together with spit and crushed graham crackers, and tossed it into a soggy carboard box of berserk cane toads. After two months in the toad box, here’s where we are:

 

1. Standard Processing Times Are Getting Slower 

Processing times are getting longer, slower, and more intense, which is good news only for those of you who fantasize about USCIS visa examiners. Though we have seen a few instances of standard processed petitions taking 4 months or longer, most seem to be taking 2 – 4 months from the date of filing. Whilst the Vermont Service Center appears to be processing more quickly than the California Service, as USCIS is no longer assigning petitions to service centers based on jurisdiction, there is no way to know where your petition will wind up or exactly how long it will take to be processed.

Premium Processing appears to be taking 7 – 15 business days, with, again, Vermont processing more quickly than California.

2. USCIS Is Losing P Petitions

For those of you unfortunately forced to file multiple P petition to cover large groups, such as four P-1 Petitions to cover an orchestra of 80 musicians, USCIS is splitting them up and sending them to different service centers who adjudicate them at different times. Even when a single P-1 Petition is filed concurrently with a single P-1S Petition or an O-1 Petition is filed with an O-2 Petition, USCIS is splitting them up and sending them to different examiners at different service centers. In the interest of further proving that they aren’t even competent enough to trust with scissors, USCIS is also losing a few along the way. In one particular case, three P-1 Petitions for a large group were filed concurrently with premium processing. USCIS approved 2 and lost 1. Eventually, they found it 30 days after it had been filed, emailed the receipt notice with a thoughtful note saying, “thanks for your patience,” and approved it 2 days later. (Yes, USCIS has to refund the premium processing fee for that one.) So, allow even more time when filing petitions for large groups.

TIP: If you do not receive an I-979 Receipt Notice for a filed petition, then go to your bank and see if USCIS cashed the filing fee check. If so, on the back of the cancelled check will be the receipt number for the petition. You can then use this to deride them when they try to claim it was never filed. 

3. USCIS Is Improperly Rejecting Petitions

There have been numerous instances reported of USCIS rejecting petitions for incorrect filing fees even where the filing fees were correct. This appears to be due to the fact the separating the total filing fee of a petition into multiple different fees based on the business status of the petitioner has not worked as seamlessly as they had hoped. USCIS reports that this is a “training issue,” which presumably means this will improve with rolled newspaper and better treats.

TIP: If you are a non-profit of an employer of 1 – 25 employees, then be sure to address this in your cover letter and explain why you qualify for a reduced fee. Also remember to provide the appropriate documentation of your status.

REMINDER: To qualify as a “small employer” you must have at least 1 full-time employee on a payroll and from whose pay checks taxes are withheld. Otherwise, you are a “small business” or “self-employed” and must pay the maximum filing fees.

4. USCIS Is Issuing Barmier RFEs

USCIS has always been renowned for issuing tragically comical Requests for Evidence (RFEs) when it comes to displays of their obliviousness of anything that occurs on a stage—which, of course, always raises the question of whose idea it was to give them the final say on the casting and booking decisions of major opera companies, theatres, and presenters in the first place. Nonetheless, unattended USCIS Examiners have recently been burrowing into new depths of obtusity in their soiled sand box and issuing more preposterous RFEs. In particular, we have seen a disturbing increase in RFEs for P-1S (Essential Support Staff) Petitions in which they are asking for individual employment contracts for each person with specific employment terms and conditions, more information on why the services provided are necessary for a performance, and why the group can’t just hire US workers to do the same thing. To pluck just a few pearls:

  • What do stage managers do and why are they necessary for a performance?
  • Why can’t an orchestra engage a US-based Orchestra Manager to manage their orchestra when they perform in the US?
  • If the group is performing in New York City, will the group’s lighting designer and stage technicians be providing their services at the same venue at the same time?

Other notable RFE’s we have seen over the last few months include USCIS contending that:

  • An “audience prize” given to an artist at a competition does not count as an “award” because he was selected by the audience and not by experts, critics, or judges in his field.
  • Competitions for “Young Artists” do not count as significant awards or competitions because young artists are only competing against other young artists. For such an award to be “significant”, the competition must include older artists.
  • An opera conductor is not in the same field as an orchestral conductor because one conducts orchestras and one conducts operas, thereby requiring two union consultation letters.
  • An artist performing at a festival cannot be a “lead and starring artist” if there are other artists also performing at the same festival. To be a “lead and starring artist,” the artist must be the only artist performing at the festival.

And my personal favourite: a request for “independent, third-party proof” of the formal name and full street address of Carnegie Hall, as well as proof that, just because the artist has been engaged to perform at Carnegie Hall they will physically be performing on-site.

Fortunately, all of these petitions were ultimately approved, but not without extra expense, lost time, and digging ever deeper into the repository of linguistic condescension in responding to the RFEs—including printing out Google Maps driving directions from the address of the California Service Center to the front door of Carnegie Hall.

TIP: Trying to explain or induce USCIS to appreciate the impact of their ineptness on the Performing Arts will produce only slightly less meaningful results than a zip log bag of toenail clippings. Rather, work around them. Know that they are extraordinarily paranoid, as well as painfully literal. Never explain or make them think. Give them what they want to know, regardless of how stupid or rudimentary it may seem, and in the simplest of terms possible. If what they want doesn’t exist, draft simple, specific documents just for USCIS that addresses the specific things they want to know.

 

Want To Listen To More About Contracts?

 

My friend and longtime client, Laura Colby, a performing arts manager based in New York City, hosts a podcast entitled The Middle Woman. In The Middle Woman, Laura discusses best practices for managing, touring, and presenting the performing arts from the lens of a working artist and shares her collected learnings with the new generation of performing arts professionals.

She recently invited me to join her in a discussion about contracts in the performing arts.

Here are the links to access the episode on Spotify, Amazon Music, Audible, and Apple Podcast.

Whilst it may or may not be the best thing to listen to before going to bed, it was a great discussion.

 

 

 

Deep Thoughts

 

“Remember, when you are dead, you do not know you are dead. It is only painful for others. The same applies when you are stupid.”

― Ricky Gervais

 

Send Us Your Questions! 

Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.

OFFICIAL LEGALESE:

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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

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

HOW TO FIX EVERYTHING

Thursday, January 28th, 2021

EXPLORING NEW BUSINESS MODELS AND PRACTICES IN THE PERFORMING ARTS IN A POST-COVID WORLD

By Brian Taylor Goldstein

Aside from thwarting a clown car coup, 2021 is certainly not off to the auspicious start we all had hoped for. Nonetheless, it is with trepidatious optimism that we find ourselves crawling out from our burrows like traumatized cicadas as we look towards re-establishing and re-building the world of live performing arts.

We have lost treasured venues, ensembles, businesses, and colleagues. Much, if not most, of the scorched earth we find will be attributable to the ravages of COVID. However, much will also be due to old and outdated business models and practices that were just waiting for an unperceivable pufflet of wind to topple them, much less the ravaging hurricane of a global pandemic. As we survey the damage, now is the time to consider rebuilding and reimagining those business models and practices. There’s nothing like the opportunity of a disaster to build a toppled house back on a better and stronger foundation than that on which it was built before.

As such, it was with the greatest enthusiasm and exhilarating gratification that I have of late been asked to weigh-in on numerous proposals from various groups and interests within the performing arts industry wanting to change the way business is done. This has quickly been followed by the resounding despair and blinding dismay of having repeatedly found myself reviewing not imaginative and daring visions of the future, but attempts to re-clothe and re-animate the cadavers of the past. Proposal after proposal has been premised upon the belief that changing the business “model” in the performing arts industry means finding a way in which various parties—presenters, venues, artists, managers, producers, promoters, labels—can come together to agree upon common practices and contractual terms so that we can all go back to “business as usual.” There have been cries of “we need to change the way the business works” and “we need to get everyone together and implement new industry standards and practices to which the vast majority of people would agree to implement.”

 The prevailing thought appears to be that if we can all just agree on “standard” terms for things such as insurance, cancellations, minimum booking fees and formulas, recording rights, and even timing for issuing and returning contracts, then everyone can breathe a collective sigh of relief and go back to negotiating and focusing only on fees, dates, planning, and repertoire—in other words, the more inspiring and fulfilling parts of the business.  I’ve read proposals that include such suggestions as “all engagements should provide for deposits and rehearsal fees” (I agree) to “there should be standard media terms that would automatically allow for streaming rights and recordings” (I do not agree) to finding new Force Majeure language that would “…make sure future pandemic events are not cause for cancellation” (Seriously?).

None of these proposals focus on the true crisis before us: the exploration of whether or not the business structures, plans, and methodologies upon which venues, presenters, producers, managers, agents, labels, etc. are run and managed need to be re-thought and re-imagined for a new age and new realities. Instead, what I have seen thus far is not unlike neighbors in a beach community finding their homes devastated by a hurricane and deciding not to rebuild on stronger foundations further away from the shore, but to put everything back exactly the way it was before, except, this time, mutually agreeing to paint their shutters all the same colour.

These concept of implementing standards and practices that everyone will agree upon arises from the long-cherished delusion that there exists a legendary grimoire of industry standards and practices that merely needs to be dusted off, amended, and updated for the 21st century. If everyone merely agrees to abide by this book, then peace will be restored to the kingdom. The trouble is…no such book exists…and no such book has ever existed. The only industry standards in the performing arts industry are that there are NO standards! To be sure, there are opinions. Strong opinions. We’ve all encountered comments such as “this is how the opera world does it” and “this is not how we do it in jazz” and “that’s not how commissions work.” However, if you polled a cross section of any segment of the performing arts about any given topic, you will find a significant divergence of opinion as to what is and what is not “standard.” What any one person believes to be standard may simply be based on their own limited experience in their own tiny corner of the industry.

To be sure, there are ways to structure some deals and transactions that are more common than others, and there is no reason to reinvent wheels where others have already figured out reasonable ways to build them, but there will always be circumstances warranting different arrangements for different organizations, individuals, projects, and budgets. More often than not, the term “industry standard” is thrown about in lieu of admitting “this works for me and I’d rather not change.” Worse, it’s often employed as a form of peer pressure to circumvent negotiation or compromise by making the other party feel that they are either too ill-informed or ill-experienced to realize the absurdity of whatever very reasonable proposal they may have just made.

So, if there are no industry standards, why can’t we all just get together and create some? If enough people agree on common contract terms and procedures, then wouldn’t that compel everyone else to fall in line and do it the same way? If everyone agrees to abide by what we all agree is fair, doesn’t that take away the risk of anything being unfair?

First, there are the practical challenges of defining even sub-segments of an industry as diverse as the performing arts, much less getting them all together and mutually agree upon  common procedures for how anything works: bookings, recordings, commissions, rehearsals, etc. There are large and small venues and presenters. For-profits and non-profits. There are different genres. Different audiences. Different goals and missions. Commercial and non-commercial producers. Etc. Etc.

Second, but by no means least, in most countries this is also illegal.

Let’s say that we all agree amongst ourselves that artists should be paid deposits (which, again for the record, I agree with—if you can’t hire a wedding caterer or a building contractor without a deposit, why are artists expected to be paid only after work is done?) What if a huge, prestigious producer or orchestra offers an engagement, but refuses to pay a deposit? Are you going to walk away and refuse to accept the date? Probably not. The reality, of course, is that unless an artist has enough prestige and clout to demand their own terms, then there are always more artists than there are venues and presenters. This, naturally, gives stronger negotiating power to presenters, producers, and venues. This is also called “Show Business.” But what if all the artists or their representatives get together and agree that they will all demand the same terms for all artists? If all the artists and their representatives stick together, then venues and presenters will be forced to comply, right? Not so fast. If a group within any industry unifies to set standard terms and practices with which all members of the group will be required to abide and with the purpose of coercing or compelling other businesses to agree to such terms and practices or else be excluded, this is called “collective bargaining.” In the United States, at least, only authorized unions or organizations are allowed to do that. In addition, any group of businesses within an industry that teams up or forms a monopoly in order to set the terms and conditions within that industry can be held to be in violation of various anti-monopoly and trade practices laws. In the U.S., for arcane historical reasons, these are called anti-trust laws.

So, does this mean we all just throw our hands up and surrender ourselves to a world of unfettered, Darwinian capitalism where ticket sales and popularity alone determines the future of the performing arts? Absolutely not! It is and will always be critical for the various groups and interests that comprise the performing arts world to come together to discuss mutual concerns and issues and how best to address them collaboratively. However, in any business enterprise, whether it exists within the performing arts or any other business sector, exploring new business models means looking inward to how you currently conduct your own business—not someone else’s. What services do you provide or offer? Is there a demand for those services? What are those services worth? What are your streams of income and revenue? Are you too reliant on either passive or active income? Who is your competition? What is your sustainability? What makes you unique? Are you over staffed or understaffed? Do you need to learn new skills? Are there better ways to fulfill your mission, goals, or creative aspirations?

Exploring a new business model is not a group activity. It is purely an inward journey. An act of self-introspection and challenge that cannot be done by committee. It is done in the depths of the night, alone, often with Slipsmith gin and two olives. Any business facing an existential challenge of survival does not address the problem by reaching out to other businesses with suggestions of what they should be doing to help the field or make your life easier. Rather, what are YOU doing that may need to be changed, rethought, or reimagined and what can YOU do to help yourself? Are there treasured customs, practices, presumptions, and assumptions that you are loathe to give up? Perhaps it is YOU who needs to turn away from industry standards (whatever you believe them to be) and try something different. For example, are the traditional roles and services of agents and managers still relevant? Do we need to continue planning concerts and performances around a fixed “season?” Does an artist really need a label to release and promote a recording? Are there other ways to monetize and promote artistic and creative services to create more diverse streams of income for artists as well as venues, theaters, and producers? Are performing arts unions today advocates or hindrances for their artists? Is there a role for more immersive experiences in theatre and concerts? Does the commission model continue to make sense for artists and their representatives? Is there a continued role for booking conferences? Are you still sending out paper press releases? Are you ignoring the role of social media and other interactive technologies? Are there diverse faces and voices in your audiences or on your stages? Are there more ways for popular and less popular genres to collaborate? Should dysfunctional non-profit organizations continue to be the default business structure for certain artistic genres? Do all classical concert and recital halls have to be an anesthetizing mélange of browns and beiges? Perhaps the time has also come to bridge the ancient abyss between arts and entertainment and explore aspects of entrepreneurialism that can be borrowed to further the sustainability of our highest artistic standards and endeavors.

There are no right or wrong answers to these questions. In fact, these are all questions that have long been proposed, discussed, tossed about, disputed, debated, and then dismissed into the rubbish bin to be addressed another day. However, that day has come. This is it. The tide of COVID has swept our businesses off their foundation. Do we build them back better and stronger than before, or build them back the same, but with colour-coordinated shutters?

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GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

VISIT OUR NEW WEBSITE: ggartslaw.com

 

 

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THE OFFICIAL LEGALESE:

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 or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.

 

Posted in Artist Management, Arts Management, Contracts, For Profits, Law and Disorder: Performing Arts Division, Non-Profits, Publishing, Recordings, Unions, Venues | Comments Closed

WE ALL NEED TO STREAM SOMETIME

Monday, June 15th, 2020

(Understanding Streaming Rights)

As we all try to figure out how to cobble the performing arts world together, more and more venues, presenters, and artists are turning to streaming–live streams, virtual performances, and showing archived footage of previously recorded concerts.

For now, these efforts are critical as a means to stay connected with audiences. Soon, these will need to be turned into additional revenue streams as well. Regardless, this is unchartered territory for many, particularly with regard to the rights and licenses necessary to stream performances and recordings.

But first things, first: We need to clear up a few definitions.

“Streaming” is where you upload a recording to a source or platform so that it can be heard or watched by an audience over the Internet. While this can be done through your own website or server, most recordings and videos are viewed through a third party platform such as YouTube, Instagram, FaceBook, Vimeo, SnapChat, Netflix, YouTube, Hulu, Pandora, Spotify, TikTok, RiffRaff, Taffeta, Titipu, KoKo, PishTush, PoohBah, and YumYum, among others.

Don’t be confused by the terms “Streaming” and “Live Streaming.” They mean the same thing. Remember, there is no standard terminology in the performing arts industry. Whether you intend to stream an archival recording of a performance, create and stream a new recording made in a studio or venue, broadcast a live concert to an audience who can watch it in real time as it is taking place, make a recording available for free, or make a recording available on-demand for a fee, these are just various types of “streaming.”

The key distinction is that a streamed recording remains at all times on the platform for the audience to watch only through the platform and cannot be downloaded. Downloading is when you are able to take a recording from the Internet and copy it from the platform to your own computer or phone. Apple I-Tunes, for example, is a downloading platform whereas Apple Music is a streaming platform. Streaming is like listening to the radio in your car. Downloading is like buying the CD. Similarly, Amazon Prime gives you the option of renting a movie to watch for a fixed period of time or buying a copy of a movie to download and watch on your own devices.

Whether using an archival recording or streaming a live concert, Obtaining the necessary rights and licenses to stream a concert or performance essentially involves the same considerations and questions you would ask (hopefully) with regard to presenting any live performance:

  • Do you need a license from the owner of the music to perform the music? 
  • Do you need a license from the owner of the music to use the music as part of a musical, dance performance, or opera?
  • Do you need a license from the owner of the music to make re-orchestrations, new arrangements or significant adaptations?
  • Do you need a license from the owner of the music to record and stream the performance of the music?    
  • Do you need a license from the performers to record and stream their performance?
  • Do you need a license from the owner of the recording of the music to stream the recording?

Essentially, to get permission to record and stream a performance, you will potentially need licenses from three different parties:

  1. The Performer(s)
  2. The owner of the music
  3. The owner of the recording

Licenses From The Performer(s)

If your intent is to stream an archival recording, you will need to ensure that you had the right to make an archival recording in the first place and what you are allowed to do with it. This should have been spelled out in the initial engagement contract for the performance. If not, you will need to go back to the artist(s) and request permission to stream the existing recording.

If you are seeking to create a new recording or record a live concert for streaming, then among the other engagement details you will need to request permission from the artist(s) to record and stream the performance. Certain artists, particularly orchestras, may have union contracts or other restrictions (such as exclusive recording agreements with labels) that will not permit any recordings or streaming without additional licenses and fees.

Even if you get all of the necessary licenses from the artist(s) to record and stream their performance, you are only a third done. Remember, unless an artist is recording her own music, artists do not control the music they perform. So, just because an artist gives you the right to make and stream an archival recording of the artist or the right to record and stream a live performance, you will still need to obtain permission from the owner of the music to perform, record, and stream. 

Licenses From The Owner of The Music

Any time you intend to perform music at a live concert, you need permission to perform it (what I like to call “stand and sing.”) Except for instances of music being used as part of a musical, dance, or opera production, such permissions are most often arranged by purchasing performance licenses through Performing Rights Organizations (PROs) such as ASCAP, BMI, SESAC, GRM, etc., when you purchase a performance license from a PRO, the terms of the license will govern what you can and cannot do with the music as part of the “performance.” Like everything else, nothing is standard. Everything depends on the type and terms of the license you purchased. These will differ from nightclubs to non-profit venues to schools to for-profit theatres, etc, so you will need to read your specific license to see what you can and cannot do and what additional rights you might need. However, here are some generalizations:

  • More often than not, streaming is covered in a performance license as long as the end user is viewing the recording on a platform licensed by the PRO, such as YouTube, Instagram, FaceBook, Vimeo, SnapChat or TikTok. Embedded, proprietary players owned by these licensed platforms (YouTube being the most common example) and embedded into the presenter website are also covered.
  • More often than not, streaming from the websites of colleges and universities (.edu) are also usually covered by the performance license.  
  • More often than not, streaming directly from the website of an artist, venue, or presenter is NOT COVERED without obtaining additional licenses. This is true of live streaming as well as archived videos of past performances. So, when in doubt, always opt to stream through a platform already licensed by the PRO.
  • Downloadable recordings are NOT COVERED. These rights need to be obtained directly from the owners or publishers of the music. Most PRO’s cannot issue such rights.
  • Performance licenses also do not cover the performance of music as part of a musical, dance performance, or opera. Those licenses must be obtained directly from the owner or publisher of the music. Most PROs cannot issue such rights.
  • Most performance licenses do not include the right to make re-orchestrations, new arrangements, or significant adaptations of the music. Those licenses must be obtained directly from the owner or publisher of the music. Most PROs cannot issue such rights.

Licenses From The Owner of The Recording

An oft overlooked concept is that recordings are separately, copyrightable creations. When a recording is made, it is owned by the person or organization that made, edited, and mastered the recording and NOT by the owner of the music which was recorded and NOT by the performer who performed it. (Believe me, this comes as quite a shock to composers and performers who presume that if they are on the recording then it’s also theirs to use.)  So, once you get all of the necessary rights and licenses to record and stream a performance, you will also need to make sure that you obtain permission from the person who recorded it—even if it is a volunteer or a member of your staff. In fact, especially if it is a volunteer. Short of children performing with fire and audience sitting on broken glass, volunteers are often the largest source of grief. (Ok, there’s also the board to consider, but I digress.)

A few final thoughts:

Everyone needs to obtain rights and licenses regardless of whether or not you charge a fee to watch the streaming concert.

  1. If you don’t know what rights you already have or what rights you need, always reach out to the performer(s), the owner of the music, and the owner of the recording. Never assume or just hope that someone else with do the “right thing.” The “right thing” is an extraordinarily subjective concept.
  1. Anyone can charge whatever they want to issue a license, or not charge anything at all, or refuse to issue a license for any reason. Everything is subject to negotiation as influenced by each person’s degree of largesse, munificence, guilt, desperation, fear, uncertainty, pride, greed, wrath, envy, lust, gluttony, and sloth.
  1. There are no special Covid-19 exceptions.
  1. There are no special non-profit or school exceptions.
  1. Everyone is screwed right now. No one is more or less screwed than anyone else. Everyone is going to need to compromise if we are going to survive this.

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

THE OFFICIAL LEGALESE:

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, Licensing, Music Rights, Uncategorized | Comments Closed

What We Know So Far About Trump’s Coronavirus Travel Ban

Friday, March 13th, 2020

By Brian Taylor Goldstein

In short, not much. As you can imagine, this was announced without any details as to how, exactly, this was going to work in terms of screening, implementation, flight schedules, etc. But here what we know so far…

  • Anyone who has been in one of the 26 European countries in the Schengen zone within 14 days prior to Friday, March 13, 2020, they will not be allowed to board the plane and/or enter the U.S. for the next 30 days.
  • The 26 European countries in the Schengen zone — Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.
  • The ban does NOT apply to the U.K. or Ireland, as well as Croatia, Cyprus, Ireland, Turkey and Ukraine. (No one knows why, though it just so happens that both the U.K. and Ireland both host Trump golf resorts…hmmm.) However, while the citizens and residents of these countries are exempted from the travel ban, if they have visited any of the European countries on Trump’s list over the past 14 days, then they are subject to the FULL 30 day ban.
  • The ban does NOT apply to permanent residents (green card holders), U.S. citizens, and the spouses, parents or siblings of American citizens or permanent residents, as well as members of the U.S. military and their spouses and children. However, they will be restricted to flying to specific U.S. airports for screening.

In addition, we have just learned today that:

  • The U.S. embassy in Oslo and Lisbon has temporarily ceased all visa operations until further notice due to the outbreak of Novel Coronavirus Disease COVID-19. It’s highly likely that more embassies and consulates will follow suit.
  • Denmark just announced it was closing its borders.

We will keep you informed as soon as we know of any changes, on our social media pages (so we don’t bombard you with emails). If you would like to stay updated follow our social media links at the bottom of the page.

Lastly, Trump has asked that everyone remember that he warned us this would happen if we kept letting foreigners into the U.S. and now we should be ashamed of what we have done to his perfect economy.

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For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

________________________________________________________

THE OFFICIAL LEGALESE:
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, Law and Disorder: Performing Arts Division, Touring, Uncategorized, Visas | Comments Closed

Please Consider Donating Cancelled Tickets Rather Than Seek Refunds

Friday, March 13th, 2020

I, like most of you, was ingrained with the paradigm that the show must go on no matter what—to the extent that I once performed a whole show the day after I had all four wisdom teeth extracted. However, these are extraordinary times.

The live, performing arts will not suffer more than any other economic blows that we all are going to suffer in every sector and industry. Nonetheless, I am putting out a personal request to all of you, as well as your patrons, friends, families, and audiences, to please consider donating any cancelled tickets rather than seek refunds.

For some, it may be easier to write of the commercial end of our industry. However, remember, that ALL artists, singers, musicians, actors, dancers, stage and tech crew, and everyone throughout the arts, for-profit and non-profit alike, from jazz to classical, from hip hop to folk, from Broadway and Carnegie Hall to the smallest regional arts centers, all rely on ticket sales to get paid and to survive.

For Broadway, the closures come at the peak of the Broadway season. While most producers I know will walk away from their investments to keep the performers and crew getting paychecks for as long as possible, many shows will not be able to survive and will close. Others will have delayed or closed openings. On the other end of cancellations, from the smallest to the largest, are artists losing their fees, along with their agents and managers (and entertainment lawyers. Wait! What?) Without a jazz club, where does the trio perform? Non-profits who have to cancel fundraising events face not be able to make their budgets. Small regional organizations, community theaters, and local arts groups may suffer the worst.

Some of the large ticketing organizations will automatically issue refunds. For those that do not, consider that the money has been spent anyway and allow it to be a donation.

Stay safe. Stay disinfected. And remember that, while alcohol is not a disinfectant, when taken orally it can be a cure-all.

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For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

________________________________________________________

THE OFFICIAL LEGALESE:
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, Arts Management, Law and Disorder: Performing Arts Division, Venues | Comments Closed

CAN A U.S. ORCHESTRA REFUSE TO PAY A NON-U.S. MUSICIAN?

Tuesday, February 27th, 2018

By Brian Taylor Goldstein

Dear Law and Disorder:

I am a musician on an O-1 visa that my agent got for me. It covers multiple engagements. Last September, I was hired to be a section musician with an orchestra. They have been paying me up until now, but now they are saying that legally they have to withhold my paycheck and can’t pay me because they just realized my visa does not name them specifically and I have to get another one just with their name on it if I want to get paid for the last two weeks. If I don’t, they say they have to fire me. They checked with their lawyer and he says its because their musician contracts require them to pay me as an employee and that my visa only covers independent contractors, not employees. He says that according the USCIS regulations [8 CFR 214.2(o)], employers must be listed on separate O-1 petitions where it says “employer” on the form. Is this true? I thought the O-1 allowed me to work for whomever I wanted because it was a multiple-employer O-1.

Sadly, we get this question a lot. To be fair, U.S. tax and immigration laws and regulations are a huge, big, stinking pile of insanity. Fortunately, most of the folks in our industry who work regularly with foreign artists make at least a valiant effort to figure out the rules as best they can, either by consulting experts or colleagues or through their own research. Unfortunately, there are others, be they forgotten in the bowels of a hugely complex institution or trapped in their own dark worlds of paranoia, anal retention, and over-simplicity, who do not. These include most, but, by no means all, of the following: (1) the international student officers and offices of most schools and universities; (2) the personnel directors of small orchestras; and (3) any non-profit with a volunteer attorney who only practices insurance law, but claims to be an expert on all subjects.

It appears that you have been dragged into the dark world of numbers (2) and, perhaps (3).

The O-1 visa category is not only available for artists, but also for the field of business, science, education, and athletics. Technically, the sodden-witted pignut at your orchestra is correct that, in most instances, an individual with an O-1 visa who works for more than one employer must file a separate petition for each employer. HOWEVER, he or she is ignoring the fact that USCIS regulations 8 CFR 214.2(o)(2)(iv)(D) provides an exception for artists (and ONLY artists) as follows:

In the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition, provided the additional performances or engagements require an alien of O-1 caliber.

Moreover, for purposes of work authorization, USCIS does not make distinctions either between full-time and part-time employment or between employees and independent contractors. Why? Because as we try to remind everyone again and again and again and again and again: U.S. law requires anyone who “provides services” in the U.S. to have work authorization regardless of whether or not they are paid for such services. So, as a work visa is required even if an artist performs for free, the manner in which they are paid is irrelevant for immigration purposes.

Admittedly, what adds to the confusion is that USCIS requires the same USCIS form (i-129) to be completed not just for O-1 visa petitions, but for a whole alphabet of other visa petitions as well: E, H, P, L, M, R and Q, among others. Because of the government’s “one-size-fits-all” mentality, the i-129 form uses the broad term “employer” to cover every possible scenario in which one person can engage the services of another. In other words, USCIS does not use the term “employer” to refer exclusively to an “employer/employee” relationship.

The issue of whether or not an individual performing services for another should be paid as an “employee” or “independent contractor” is determined by various federal and state regulations, laws, and authorities, such as the Department of Labor and the IRS. USCIS is part of the Department of Homeland Security. Once it authorizes someone “to work”, it simply doesn’t care about how, or even if, they are paid. That’s not in its purview. Which means that, so long as your O-1 authorizes you to provide services to more than one entity, then you can be paid either as an employee or independent contractor. Your orchestra is not violating U.S. immigration law by paying you as an employee.

Amusingly, your orchestra is actually finds itself in even greater peril by refusing to pay you for work already performed. The same state federal and state regulations, laws, and authorities that determine whether or not someone is an employee or an independent contractor, also make it explicitly clear that it is illegal to refuse to pay someone for work already performed based on a claim that they violated immigration law. Its perfectly acceptable—nay, required—to refuse employment to or fire someone who is not legally authorized to work in the U.S. However, that does not apply retroactively. If the work has been performed, even illegally, the worker must be paid. Otherwise, unscrupulous employers would just hire foreign workers and then refuse to pay them. Work authorization and payment are to very different things!

So, there’s your answer. However, getting your orchestra to understand or accept this reality may not be easy. People in the aforementioned categories prefer simple answers to complex questions and are often loathe to accept nuance. So, here’s simple suggestion: Are you or your orchestra a member of the American Federation of Musicians? If so, stop reading this and call AFM now. Trust me, they will be more than happy to make this matter very simple for the orchestra indeed!

_________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

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

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. Questions will be answered ONLY in future blogs. 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, Employees, Independent Contractors, Law and Disorder: Performing Arts Division, Visas | Comments Closed

IS SXSW Being Opportunistic of Oblivious?

Friday, March 3rd, 2017

By Brian Taylor Goldstein

The following situation was recently brought to our attention and we felt obligated to comment:

http://www.avclub.com/article/sxsw-threatens-international-artists-deportation-p-251394?utm_source=facebook&utm_medium=ShareTools&utm_campaign=default

https://www.theguardian.com/culture/2017/mar/02/sxsw-immigration-told-slant-contract-trump-travel-ban

http://www.rollingstone.com/music/news/sxsw-responds-to-artist-immigration-controversy-w470167

Since this issue arose, the festival’s Managing Director has issued multiple “updates” and “clarifications” that are disingenuous or, at best, ill-informed.

First, he contends that the contract provision regarding non-work visa violations is merely “telling the acts what immigration (authorities) would do if terms of their visas are violated” and is intended “to inform foreign artists that the U.S. immigration authorities have mechanisms to create trouble for artists who ignore U.S. immigration laws.” However, if this is true, much of the legal information is misleading and inaccurate. Moreover, if SXSW is, indeed, merely trying to “inform” artists and “warn” them about potential immigration consequences, then why do SXSW organizers themselves threaten to notify U.S. immigration authorities if they discover any infractions? When did SXSW become agents of ICE (US Immigration and Customs Enforcement)?

Second, he explains that “all of the harshest penalties threatened in the contract—including notifying immigration authorities—would only be invoked if somebody did something really horrific, like disobey rules about pyrotechnics, starting a brawl, or if they killed somebody” and that this language is “intended to be, a safeguard to provide SXSW with a means to respond to an act that does something truly egregious, such as disobeying our rules about pyrotechnics on stage, starting a brawl in a club, or causing serious safety issues.” While any such actions on the part of an artist or group would most certainly warrant an immediate expulsion from SXSW, as well as untold liability issues, none of them constitute any kind of immigration violation which would warrant SXSW notifying immigration authorities—particularly when that would only result in all non-US artists at the festival coming under scrutiny of ICE.

Lastly, SXSW’s Managing Director claims that that these provisions have always been part of their agreements. Perhaps this is true. However, if that is the case, then not only were these contractual terms poorly and sloppily drafted. And given the current political madness, now was certainly the time to update and amend them.

While it’s easy to presume that SXSW is using the current immigration situation to coerce artists into not performing any unauthorized SXSW performances, it’s far more likely that they are one of many presenters, venues, and festivals who are only too eager to dispense expertise on issues they actually know nothing about. The complexities of immigration issues for non-US artists are confusing and frustrating enough without adding to the melee with misinformation, however well-intentioned, which only causes more confusion.

_________________________________________________________________

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

To ask your own question, write to:

lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. Questions will be answered ONLY in future blogs. 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, Contracts, Law and Disorder: Performing Arts Division, Visas | Comments Closed

Never Rent Your Theater To Cannibals

Thursday, July 14th, 2016

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We have a non-profit theater company with our own performance space. We are looking for additional ways to increase our revenue stream within the terms of the lease. Two questions: Can a non-profit collect revenue for rented space or must it take the form of a voluntary donation? Do you know off hand if there are tax implications?

Yes, you can definitely collect revenue for the rented space.  However, this is called Unrelated Business income (UBI) by the IRS, and it would constitute taxable income as it’s not related to you non-profit’s mission as a theater company—assuming, of course, that the missing statement filed with the IRS does not include running a catering hall. This might be different if you were renting the space to other non-profit organizations constituent with your own mission, such as local dance groups, community theater, theater camps, etc.

Regardless, I wouldn’t try calling the rent a “voluntary donation” to avoid the taxes.  It’s not voluntary if the lessee is required to pay it, and it’s not a donation if the lessee is receiving something of value in return for the money. Being entrepreneurial is admirable. Committing tax fraud is not.

In addition to considering the tax implications, you should also consider the liability and insurance implications as well. Regardless of who rents your space, should anyone be injured while on your property, your organization will be the one named in a lawsuit—especially if you will be renting it for any purpose that will involve children—the little darlings are pits of liability! While it’s a great idea to make any renters be responsible for any damages or claims, you need to require them to have insurance as well as obtain your own independent insurance. Making a renter contractually responsible does not mean they will actually pay.

Lastly, in additional crafting a well-drafted rental agreement (which means having terms that actually apply to your group, as opposed to borrowing a template from the strip club down the street that rents itself out for bachelor parties), you want to have specific written rules and guidelines as well as the ability to refuse to rent to any group or organization that you deem to be inappropriate—provided, of course, that such decisions are not made for discriminatory reasons. Just as people will blame your organization for any accidents or injuries that occur on your premises, people will associate you with tacit approval of any group or organization that rents your premises. So, hosting the North American Association of Cannibal’s Annual Banquet and Pot Luck may not be a wise idea.

__________________________________________________________________

For additional information and resources on this and other GG_logo_for-facebooklegal, project management, and business issues for the performing arts, visit ggartslaw.com

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

All questions on any topic related to legal, management, 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, Insurance, Law and Disorder: Performing Arts Division, Taxes, Venues | Comments Closed

Dodging A Bullet With A Contract

Thursday, March 31st, 2016

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

I am a classical concert pianist and booking representative for my small ensemble. I just finished the negotiation of a performance contract with a presenter and, unfortunately, we could not reach an agreement. In my three years of working as a self-presenting artist, it was the first time when a contract became an issue. To summarize the situation, I didn’t agree to sign the presenter’s one-page contract because it didn’t have any terms dealing with such things as cancellation or the date we would be paid. So, I provided my own, more detailed, contract. I also provided a technical rider for such things as piano tuning and how much space our group needed to perform. The presenter claimed that their contract was “standard” and that they engage lots of artists and that no manager or artist had ever objected to their one-page standard contract. So, I offered to propose changes to their contract instead, but then withdrew their offer to engage us, saying that we were obviously too hard to work with and that they had dodged a bullet. Quite a number of series send us one-page agreements and some of them react with frustration when I present a more detailed contract. I start to have a feeling that maybe while I am building my network, I have to play by the rules of the presenter and just hope that everything should be OK. However, in some ways it contradicts what I have learned from reading your blog. It also doesn’t help if its true that most managers are happy to sign these simple contracts creating a way out for a presenter to say: “we never had a problem with our one-page contract” before.

I’d like to say that these are the perils of dealing with small, unsophisticated presenters. But, alas, you have stumbled into one of the dark corners of the entire performing arts industry: at all levels it’s a business run by people who prefer to pretend it’s not a business until someone doesn’t get what they want and then they will all pretend to be experts on business contracts.

In your case, the presenter’s claim that other artists or managers may or may not have had a problem with their one page contract should be disregarded for several reasons: (1) it may or may not be true; (2) many artists and their managers are so happy just to get an engagement that they are happy to sign anything; (3) many artists and their managers often know less about contracts than presenters; and, most importantly, (4) nothing is “standard”. As for your suggestion that you have “…to play by the rules of the presenter and just hope that everything should be OK”, I disagree.

A career in the arts and entertainment in inherently based on risk. So, yes, there may be instances where an engagement or an opportunity presents itself and you may just have to take a risk. However, you can’t make this your standard policy. You need to be judicious. The only way to evaluate the risks and advantages of any offer or opportunity—whether it is an engagement or a recording contract—is through the contract process. You may not always be in a bargaining position to get what you want, but the process itself can be vital. Even if someone refuses to agree to a specific request or a contractual you may propose, that information in and of itself can be essential in helping you evaluate whether or not proceed. However, any presenter or venue that won’t even take the time to discuss your concerns should be avoided.

Nevertheless, while its fantastic that you have taken the time to devise your own contract and technical rider, you also need to know your audience. Its very different to negotiate with Carnegie Hall that it is with a group that operates out of a church basement with a broken upright. If you don’t want to unnecessarily scare off unsophisticated presenters and venues, there are things you can do to make sure your concerns are being addressed without having to send a formal contract with a rider. One approach may be just to send an email or a list confirming your specific concerns. Or you can avoid email altogether and have an actual conversation. Remember, a contract does not have to “look” like a contract. At the end of the day, its less about the wording and format than communicating your concerns, expectations, and clarifications. In short, it doesn’t mean you have to be less flexible in what you need, but more flexible in how you communicate it.

Ultimately, I think you were the one who “dodged a bullet” on this.

________________________________________________________________

For additional information and resources on this and other legal, project management, and GG_logo_for-facebookbusiness issues for the performing arts, visit ggartslaw.com

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Who Has To Pay The Likes of ASCAP, BMI, Etc?

Thursday, February 18th, 2016

By Brian Taylor Goldstein, Esq.   

I haven’t found an example that matches the situation of a 501(c)(3) I am familiar with. They throw a once-yearly art festival that spans a weekend (2days). They don’t charge the public any admittance. They raise money by charging fees for booth (10×10) spaces for (visual) arts vendors to sell their merchandise. They raise money for: their operating expenses, student art scholarships, member art scholarships, honoraria for program presenters at meetings, a fund for a permanent “home” for the 501c3 where they can hold meetings and store various gear for the meetings between times. They also have an open air music stage at that festival where local musicians perform. The musicians are paid under $150.00 for a 2 hour performance that includes 5 minutes each for set-up, a break, and stage clear-off. Most, but not all of the pieces performed are written by the performers. The “audience” is anyone who wanders by and stays to listen for a while. So, who, if anyone, has to pay fees to the likes of ASCAP, BMI, etc.?

It sounds like the 501(c)(3) organization in your scenario is trying to raise money for some very admirable and worthy goals: art scholarships, arts education, and even providing a place for local musicians to perform. In fact, these goals sound so worthy that I’m sure you wouldn’t object to the organization using your house for meetings or taking your car whenever they needed it to transport students to art classes, all without your permission and without paying you any fees. While you might be more than willing to donate your home or car on occasion, my suspicion is that you’d at least like to be asked first. As a general rule, the involuntary donation of other’s property without their permission—even if it’s for a really good cause—is also called “stealing.”

A musical composition—just like a home or a car—is considered property. It is no less valuable—indeed, I would argue, it is of greater value—than anything else you are required to pay for that has a physical price tag attached. A musical composition belongs to the composer who wrote it and/or the composer’s publishing company. Under U.S. Copyright Law, whoever owns a musical composition also has the absolute right to control and determine all uses of the property—this includes the right to perform the music live, record the music, play a recording of the music for the public, change the lyrics, make arrangements, or just about anything else you can think of to do with music; including the right to determine whether or not to donate the use of the composition for a worthy cause or project.

This means that any time a musical composition is performed live or a recording of the composition is played—whether it’s at a theater, concert hall, or out-door street festival (for-profit or non-profit)—“someone” needs to obtain the composer’s permission and, in most cases, pay a usage fee called a “Performance License.” ASCAP, BMI and SESAC are not roving bands of brigands waiting to pounce on unsuspecting non-profits who are merely trying to promote the arts. Rather, these organizations are trying to promote the arts too—primarily by reminding people (including other artists) not to take music for granted as a valueless commodity. ASCAP, BMI, and SESAC are organizations that represent composers, issuing performance licenses and collecting fees on their behalf.

If musicians are performing original music they composed themselves, then they can certainly agree to perform their own music for free. That can be a condition of hiring them to perform in the first place. However, if a musician or band is playing (“covering”) music composed by others, then just because the musicians agree to perform for a reduced fee, or even for free, doesn’t mean that the composers have allowed their music to be performed for free as well. A performance requires a performance license.

As for whose responsibility it is to obtain the necessary license, its legally everyone’s responsibility. If an unlicensed song is performed at a festival (even a free festival), then the U.S Copyright Act allows all the parties involved in arranging the performance—the artist as well as the venue or festival, and sometimes even the promoter, producer, or booking agent—to be liable for copyright infringement. So, while you could require the musicians to obtain their own licenses with regard to any music they are performing which they have not composed themselves, in my opinion that is a foolish policy. Why? Because most musicians will simply not bother and elect to take the risk of not getting caught. However, if they do get caught, it is the venue or festival who will be liable as well. It doesn’t matter that the festival may have required another party to obtain the license. That simply entitles the festival to sue the other party. The festival itself will remain liable to the composer.

So, in your case, while there are a number of factors that can determine the cost of obtaining performance licenses—the size of the venue, the price of tickets (or lack thereof), the number of performances, etc.–ultimately, it’s in the festival’s or organization’s best interest to ensure that the necessary permissions and licenses are obtained. While it might be tempting 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, 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.

__________________________________________________________________

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

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

All questions on any topic related to legal, management, 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, Non-Profits, Presenters, Publishing, Venues | Comments Closed

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