Archive for the ‘Arts Management’ Category

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Can Newspapers Charge To Quote Reviews??

Wednesday, August 8th, 2012

By Brian Taylor Goldstein

Dear Law & Disorder:

I recently came across the website of an artist management agency in Europe where they had posted the following: “The press review is temporarily not available. German newspapers Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung recently started to pursue institutions and artists using texts (press reviews, interviews, commentaries etc.) published by those newspapers on their websites or in any other commercial context without having paid for them. We have been advised to remove all press quotations from our website as the same phenomenon seems to happen in other countries like Switzerland and Austria.” Is this a copyright trend that will spread to other European countries and the USA? Will agents, and artists have to start paying for the use of (press reviews, interviews, commentaries) used to promote an artists career? Also, if an American agency has press reviews, interviews, commentaries from Europeans newspapers on their websites, such as from the Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung, will these agencies be liable for payment of the use for this information, as well, as it is being used in a commercial context? (Thank you for your column on Musical America, and I also thank Ms. Challener for her leadership in including such information in the weekly email Musical America updates.)

Newspapers and magazines have always owned the exclusive rights to the articles, reviews, editorials, and interviews they publish. Just like you can’t make copies of sheet music, CDs, books, and other copyrighted materials, you cannot make copies of articles and reviews and re-post them without the owner’s permission. Even if you are not “re-selling” an article or review, anything that is used to promote, advertise, or sell a product or service (ie: an artist!) is a “commercial” use.” While “quoting” or “excerpting” a positive review is most often considered a limited “fair use”, making copies of the entire article or review is not. While it should go without saying, you also cannot “edit” or revise articles and reviews in an effort to make a bad review sound more positive. (That’s not only copyright infringement, but violates a number of other laws as well!)

The website you encountered was in response to certain German newspapers, in particular, who began making significant efforts to require anyone who wanted to copy or quote their articles or reviews to pay a licensing fee. In the United States, for the most part, most newspapers and magazines have not actively pursued agents or managers who have quoted articles and reviews on their websites to promote their artists. However, I am aware of managers and agents who have been contacted by certain publications where entire articles have been copied and made available for download. In such cases, the publication has demanded that the copy either be licensed or removed. I also know of agents and managers who have posted unlicensed images on their websites and then been contacted by the photographers demanding licensing fees.

As for the ability of an American agent to quote or copy articles from the Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung, under the applicable international copyright treaties, they could require American agents to pay as well. While I don’t necessarily see this becoming a trend among US publications, its certainly worthwhile to reflect that anytime an agent, manager, or presenter uses images, articles, videos, other materials to promote an artist or performance, there are copyright and licensing considerations that need to be taken into consideration.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

A Magic Blurb

Wednesday, August 1st, 2012

By Brian Taylor Goldstein

We teach classes, put on concerts and run festivals.  At all of these events we take photos of the participants along with the members of our group. We want to be able to use the photos on Facebook and our website.  So I am looking for a “blurb” to put in our programs and registration forms that says we have their consent to use photos of them, without having to get actual signed releases from everyone who attends our events in case we end up using their photo.

I don’t know that there is one magic “blurb” that will cover all of these scenarios. The closest, most generic thing I can think of would be: “I understand and agree that, by participating or attending this event or program, my photograph may be taken and used to market and promote other programs and performances of _____________.”

Generally, you don’t need anyone’s permission to take a crowd shot or a photograph of someone attending a public event as there is no right of privacy when people attend public events. That would allow you to put the photograph on a website or facebook. However, if you liked a particular image of a particular individual (ie: close up or head shot) so much that you wanted to feature it alone on posters, billboards, postcards, or as part of a featured publicity campaign, then you may be intruding on rights of endorsement/publicity and would need specific permission. Also, as a general rule, if you want to take the photograph or video of audience members attending a concert, you want to put a sign or placard out front stating that photographs will be taken at this performance so that, by proceeding, they can make the decision whether or not to participate. Printing a release in the program which they may or may not even read until after the concert doesn’t accomplish anything. On the other hand, if someone is filing out a registration form for a class or workshop, that’s the perfect place to put in the necessary language so that they can actually provide their consent when they sign and return the form.

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

What Attorneys Won’t Tell You

Wednesday, July 25th, 2012

By Brian Taylor Goldstein

I recently attended an arts conference where there was a panel discussion on music contracts. An attorney said that artists don’t really need to read or review contracts because you can always declare them null and void later and get a new contract. Is this true?

This is why 99% of most attorneys give the rest of us a bad name. No. It’s not true. That is, its bad advice. However, there are many attorneys out there who like to believe otherwise.

You may…or may not…be surprised to learn that any attorney with even the most minimal amount of skill can create some plausible “theory” on which to sue someone else. That’s all it takes to file a lawsuit in a US court: a plausible “theory.” Your theory might be the world’s dumbest theory, but everyone is entitled to his or her day in court. And, under what’s called the “American Rule”, unless there is a contract requiring the loser to pay for attorney’s fees and costs, everyone is responsible for their own attorney’s fees regardless of who wins or loses. So, unless you and I have a contract requiring the loser in a lawsuit to pay the winner’s attorney’s fees, I could technically file a lawsuit against you right now (assuming I knew who you were) and you would have to spend your own money to defend it. (If you don’t like the “American Rule”, blame George Washington. The “English Rule”, of course, is the exact opposite!)

Because of this situation, many attorneys believe that the answer to every conflict is to file a lawsuit and use that as leverage to get a better deal. The argument goes something like this: If an artist signs a contract and later wants to get out of it, just file a lawsuit claiming that the other side is in breach. Even if the artist has absolutely no legal basis for such a claim, the other side will need to hire their own attorney, file a motion, appear in court, and have the claim dismissed. As this will cost them thousands of dollars, the other side just might re-negotiate with rather than spend all that money. Here’s the catch: the artist will ALSO have to spend all that money hiring an attorney to file the lawsuit in the first place. And if you think that a large recording label, or a successful producer, or even a presenter with access to a free board attorney is simply going to roll over to avoid a lawsuit, think again. Why? Because their own attorneys will advise them to fight.

There’s another consideration, too: your reputation. One of my clients once received a letter from an attorney who represented an artist who was part of my client’s roster. Even though his contract was not up for another year, the artist wanted to be released early so he could negotiate a potentially lucrative deal directly with one of the producers we were already working with on his behalf. His lawyer raised several legally weak arguments and threatened a multi-million dollar lawsuit. After several efforts to resolve the matter ended in screaming phone calls and more threatened litigations, we decided to release the composer, even though, ultimately, I felt we would win in court. It simply wasn’t worth it. My client had other artists and business to focus on and could afford neither the money nor the time and distraction. While you may conclude that the artist got what he wanted and won, think again. There’s more: of course, we had to advise the producer that we no longer represented the artist and what had happened. As a result, the producer determined that the artist’s talents were not worth the risk of dealing with someone who sues their way out of a dispute and selected another artist for the project. It wasn’t long before word spread that this artist would sue anyone at anytime and other producers refused to work with him either. In the end, the artist’s lawyer wound up suing the artist for unpaid attorney’s fees. Not a happy ending.

If you haven’t figured out the game yet, an attorney will always advise you to file a lawsuit. However, regardless of the outcome, only the attorneys win. So, unless you have an endless supply of money, energy, time, and spirit do not play this game! Take the time to draft meaningful contracts, take the time to read them, and take the time to establish a relationship with the people you will be working with. You may not always get what you want in a negotiation, but at least you can make an informed decision by asking questions and evaluating the pros and cons of the deal before you. While there are many reasons you might agree to unfavorable terms, believing that you can sue your way out of a bad situation is not among them…unless you’re an attorney!

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

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

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

__________________________________________________________________

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, Liability | Comments Closed

Are We Liable For A Backstage Brawl?

Wednesday, July 11th, 2012

By Brian Taylor Goldstein

Our stage manger slapped one of our actresses during a rehearsal. Are we liable?

Anyone who understands the unique stresses and pressures of the performing arts should expect a certain degree of screaming, emotional meltdowns, tantrums, and other inappropriate behavior. Welcome to the theater. However, physical violence crosses the line and, among other things, can most certainly get your organization sued!

Anytime an individual provides services on your behalf—regardless of whether or not they are an employee, independent contractor, or even a volunteer—you can be liable if they hurt or injury someone “in the course of performing their duties.” Let’s say, for example, that one of your volunteer ushers decides to forcibly eject a patron who refuses to shut off his cell phone, injuring the patron in the process. Your organization could be liable because the usher was performing services on your behalf and was not properly trained or supervised. (The usher could be sued, too, but your organization would be included in the lawsuit.) On the other hand, let’s say you arrange for a volunteer to pick up an artist from the airport and drive him or her to the theater. If, on the way, the volunteer decides to stop and run a few personal errands and gets into an accident, you would not be liable. Once the volunteer deviated from his or her job by running a personal errand, he or she was no longer working on your behalf. Get it? These things are very fact specific.

In the case of your stage manager, was this a personal fight? Just because the stage manager slapped the actress doesn’t necessarily mean your organization is liable if he or she wasn’t acting in the capacity of a stage manager at the time. However, let’s say that the actress refused to follow the stage manager’s directions, a fight ensued, and the stage manager decided, out of frustration or poor anger management skills, to slap the actress. You could most definitely be sued because the stage manager was clearly acting in his or her capacity as a stage manager.

If you had strict written policies prohibiting physical violence, assaults, battery, etc, you could always argue that (1) you had no reason to believe that your stage manager was violent or had assaulted others in the past and (2) that he or she was violating strict company guidelines and procedures. (The stage manager could still be personally sued for assault and battery, but these arguments might get your organization off the hook.) However, now that this has happened, you would most definitely be liable if this ever happened again and you took no steps to prevent another similar incident.

You would certainly be warranted in dismissing the stage manager and refusing to let him or her work with you again. Short of that, at the very least, you should ensure that there are written policies and procedures for all volunteers, employees, independent contractors, and any one else who provides services for your organization. You need to make sure everyone understands that this kind of behavior will not be tolerated.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Arts Management, Employees, Independent Contractors, Law and Disorder: Performing Arts Division, Liability | Comments Closed

Is That A Music License I Hear?

Wednesday, June 27th, 2012

By Brian Taylor Goldstein

Do we legally have to have a music license if we have bands performing in our Country Club at weddings, social events, etc.?

Yes. Anytime music is publically performed, either live or by playing a recording through a sound system, a “performance license” is required. A “performance license” is a fee paid to the composer for the right to perform his or her composition publically (as opposed to performing music in your living room for friends and family.) Whenever you hear music being played in a department store, or in a restaurant, or in an elevator—even though its being played in the background and even though there are no fees or tickets to listen to the music—someone, somewhere has paid a performance license so you can enjoy an enhanced shopping, dining, or elevator-riding experience. Similarly, whenever music is performed live at a concert hall, nightclub, restaurant, or even, yes, at a private wedding held at a country club, someone, somewhere must obtain a performance license.

As the owner/operator of a performance space/venue, it is your legal responsibility to ensure that the necessary rights and authorizations have been obtained with respect to all copyrighted music that is publicly performed in your venue—even if the “performance” is for a private party. Just because the party is “private” or “by invitation only”, a country club itself is a public venue and the wedding guests are “public.” So, if your space is used for a wedding, and the happy couple hires a wedding band, it is your responsibility to ensure that there are appropriate licenses for the music being performed by the band.

While you could require the band or the event organizer to obtain the necessary licenses, that will not relieve you from responsibility (ie: liability) should they fail to do so. Most venues where live music is performed are better advised to obtain blanket performance licenses from the three performance rights licensing organizations: ASCAP, BMI and SESAC. Each of these organizations controls the rights to 1000s of compositions and a “blanket license” permits all the music from their catalogs to be performed at your venue. Its like one stop license shopping. While this will require you incur the license costs yourself, you can pass the costs along through your rental fees. Its also the best and only way to ensure that your legal responsibility as the owner/manager of the venue is being met. In other words, you need to obtain music licenses for the same reason you carry insurance: to protect the venue from liability.

If nothing else, think of it this way: for many artists/composers with lousy record deals, their performance licenses may be the only fees they receive for their work. If dancing and listening to their music makes the wedding guests happy, and happy wedding guests means happy Country Club members/renters, then all that happiness is at least worth a fee to the composer.

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“Law & Disorder:Performing Arts Unit” will take a short break on Wednesday, July 4. Our next post will be on Wednesday, July 11.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Is A Choral Group Required To Have Workman’s Compensation?

Wednesday, June 20th, 2012

By Brian Taylor Goldstein

Dear Law & Disorder:

We have a non-profit choral group. Our of local public television stations has sent us a contract to record and broadcast one of our concerts this December and they have an item that requires us to have workman’s comp on our entire group. We currently only have 3 staff employees (all part-time) and the performers themselves are not employees. As a non-profit, are we required by law to carry workman’s comp on members of our group?  We are wondering if we can sign this agreement if we don’t carry workman’s comp insurance.

First, and foremost, your non-profit status is unrelated to the issue of workers compensation. Non-profits are subject to the all the same laws, statutes, and regulations as all other businesses. Whether or not you are required to carry workers compensation depends on whether your staff and chorus members are considered independent contractors or employees. This requires an analysis of both federal law as well as the laws of your state. However, in this particular case, such an analysis may be irrelevant.

If you were to enter into a contract with the television station in which you are required to have workers compensation, then you would be agreeing to provide workers compensation whether you are legally required to do so or not. That’s really the whole point of a contract: two parties are agreeing to do things for each other they would not normally be required to do. So, regardless of what the law does or does not require, you cannot just sign the television agreement unless you plan to comply with their requirement. Otherwise, if you signed such a contract and then failed to obtain the workers compensation insurance, you would be in breach.

I suspect that, like many institutions, the television station is using form contracts and boilerplate terms that they themselves probably do not understand. Do not always assume that the other party knows more than you do! Before you do anything, I’d call the station and discuss your situation/concerns with them. Perhaps they will waive the requirement. Perhaps they can agree to allow you to purchase a general liability policy to cover your group in lieu of a workers compensation policy.

However, regardless of whether or not you are “required” to have workers compensation either as a matter of law or by a contract, consider the possibility that if a staff member, a chorus member, or a volunteer were to be injured during a performance or in providing some other service for your organization, your organization could be liable. So, I’d strongly recommend that you obtain a general liability policy to cover injuries to any of your performers, staff, or volunteers who provide services to your organization.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Arts Management, Contracts, Employees, Independent Contractors, Law and Disorder: Performing Arts Division, Liability, Non-Profits | Comments Closed

How Do I Protect My Personal Assets From Claims of Copyright Infringement?

Wednesday, June 13th, 2012

By Brian Taylor Goldstein

Dear FTM Arts Law:

Could owning copyrights individually (as opposed to being owned by a corporate entity) ever be a personal liability?  I understand that if copyrights are held in the name of a S-corp, C-corp, or possibly LLC, the corporate veil would shield my personal assets.

There is no liability in “owning” a copyright—unless you’ve written something really horrible and would rather not be credited. However, there can be considerable personal liability in stealing (or what attorneys call “infringing”) someone else’s copyright.

Let’s assume, for the sake of argument, that you are a composer and another composer claims that portions of your famous zither concerto contains unlicensed portions of the other composer’s music. If you own the copyright in your zither concerto personally, then you can be personally liable. But what if you had transferred or assigned the copyright to your publishing company and your publishing company is a Limited Liability Company (LLC)? Then both you and your company can be sued! In other words, a corporate veil does not protect you or your personal assets from liability for copyright infringement!

In most cases, you are correct that when your form a valid corporate entity (C-corp, S-corp, or LLC), then a “corporate veil” descends between the entity and the owners (even if there is only one owner) and the owners are not personally responsible or liable for the debts of the corporate entity. If, for example, your corporate entity enters into a contract to pay for services, and your corporate entity breaches the contract and refuses to pay, then only the corporate entity is liable, not you personally. However, this “corporate veil” only protects you from liability for debts, bad business deals, or contract breaches. It does not protect you from liability from what are called “torts.”

A “tort” is any thing other than a breach of contract which causes damages to another person and includes such things as fraud, negligence, assault, battery, defamation, and….copyright infringement. So, if the president of a corporate entity commits fraud, then both the corporate entity can be liable as well as the person who “personally” committed the fraud. Or, if a truck driver runs a red light and causes an accident, then both the truck driver can be sued, as well as the company he or she works for. It is the same with copyright infringement.

If you are accused of using unlicensed material in your zither concerto, it doesn’t matter who holds or owns the copyright. If it is ultimately determined that you used someone else’s copyrighted materials when creating the work in the first place, then you are personally liable. And it gets worse. Through a legal theory called “vicarious liability”, the musicians who perform you work could be liable, the agent or manager who promoted it could be liable, even the venue where it is performed could be liable.

In the end, the smartest way to protect your personal assets from potential claims of copyright infringement is either by using only original works or by ensuring that you have all of the proper licenses and permissions in the first place. Also, in order to protect yourself from frivolous lawsuits and false claims of infringement, register your copyrights with the US Copyright and Trademark Office.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Limited Liability Companies | Comments Closed

Do Competitions Need To Withhold Taxes On An Artist’s Prize Money?

Wednesday, June 6th, 2012

By Robyn Guilliams

We hold a piano competition where artists, some from abroad, pay their own way to come here to compete.  If they win any prize money, do we need to withhold taxes?

For artists who are nonresidents of the U.S., I’m afraid you are required to withhold taxes! The general rule is that any payment of “U.S. income” made to a nonresident of the U.S. is subject to the 30% withholding requirement. In effect, 30% of the gross income paid to the artist must be withheld by the payer and deposited with the U.S. Treasury.  This deposit will be credited toward any taxes the artist may owe at the end of the year.

Depending on the artist’s country of residence, however, there may be an exception to the withholding requirement.  The U.S. has entered into tax treaties with many countries (68 at last count.)  The terms of each treaty control where a particular person’s income is taxed when the person resides in one country, but the income has a connection to another country (the treaties prevent the person from being taxed twice, in two different countries, on the same income.)

Whether or not an exemption from tax in the U.S. exists is very fact-specific.  Obviously, the nonresident artist must reside in a country with which the U.S. has entered into a tax treaty.  But (just to keep things interesting), the terms of each treaty are different, so the treaty in question must be reviewed to determine if there is a provision that exempts his type of income from U.S. tax, and whether that exemption can be claimed at the withholding stage!

A more detailed explanation of how the tax treaties work is available at the Artists from Abroad website:

http://www.artistsfromabroad.org/tax-requirements/exceptions-to-nra-withholding-requirement/tax-treaties/

You may also want to check out the IRS’s Publication 901, “U.S. Tax Treaties”, (http://www.irs.gov/pub/irs-pdf/p901.pdf), which provides a summary of each treaty currently in force, as well as a few helpful charts to determine what types of income are exempt under each treaty (but be sure to read the footnotes carefully!)

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Generic Forms: A Prescription For Trouble

Tuesday, May 1st, 2012

By Brian Taylor Goldstein

HELLO –

How can an organization that presents music programs, and puts some of them on the Internet, find a good general release form for artists/speakers to sign?

The tricky part about forms is not finding them, but choosing which one is right. There are lots of sources for good general release forms—the Internet, formbooks, colleagues, etc. We provide a list of formbooks that we recommend on our website www.ftmartslaw-pc.com. However, to select the right form, you need to know what you need.

A “release” is just another word for “permission”, and, like all other contracts, it memorializes an agreement between two parties. So, in order to know what form you need, you need to know what permissions you need and what permission the other party is willing to grant. For example, if you are presenting a music program and you want a form through which a musician will give you the right to record their performance and place it on the internet, you will want a form that addresses the following issues: (1) Is the musician expecting to get an extra fee in exchange for granting permission?(2) Do you want to place the entire performance on the Internet, or just excerpts?(3) Will you be posting the performing on your own website or on other websites such as YouTube?(4) Can you leave the recording up indefinitely, or will the musician be able to tell you to take it down? (5) If there is more than one musician performing, such as a band or ensemble, will you require a release from each performer or does one person have the right to grant permission on behalf of everyone else? and, perhaps most importantly, (6) Is the musician performing his or her own music? Remember: unless the musician is also performing music he or she wrote themselves, they cannot give you permission to record it. You will need to get that permission from the composer as well as from the musicians.

There is no “generic” permission form or release that will apply to everyone in every situation. Any form or any contract is only “good” if it addresses all of the elements of your specific circumstances and successfully communicates the understanding between the parties and covers all of the necessary. It may not surprise you to learn how often I have been contacted by someone who found what they believed was a “generic” form, filled in the blanks, and found out too late that it didn’t give them the rights or permissions they needed for their specific circumstances. So, when it comes to forms, don’t go for the generic…go for the prescription you need. Before you go hunting around for the right form, first figure out what you need, then start reading and editing forms and until you get the one that fits just right.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Do We Need ASCAP/BMI Licenses?

Wednesday, April 18th, 2012

By Brian Taylor Goldstein

Hello Law and Disorder,

We have met numerous times at conferences, (I love going to your sessions!) and you have been very helpful with questions about our presenting contracts. We also rent our facility and I now have a question about that side.  We recently received a letter from BMI stating that a few of our rental clients have not paid their licensing fees and that we are now responsible for the fees. Can they do that?  We have it stated in our rental contract that the user is responsible of ASCAP/BMI fees, is that enough to get us out of it? If BMI can hold us accountable for the artist fees how do we protect our self in the future? I appreciate your advice, thank you.

Thanks for coming to our sessions! As for your question: Yes, they can do that! As the owner/operator of a performance space/venue, it is your legal responsibility to ensure that necessary rights and authorizations have been obtained with respect to all copyrighted music which is publicly performed in your venue. (Actually, your legal responsibility is not limited to performance rights, but extends to dramatic rights as well as any other required rights and licenses which pertain to music, images, trademarks, recordings, images, or other protected rights or materials being used or performed in your space.) In other words, while there is certainly nothing wrong with requiring your “users” to be responsible for ASCAP/BMI fees, that will not relieve you from ultimate responsibility if they fail to do so. In fact, there is no contract, release, or any other document which will protect your venue from liability should one of your users fail to obtain the necessary authorization or licenses they need for their performance. However, there are several things you can do to better manage your liability and minimize your risk:

First, you’ll not only want to ensure that your contract states that the user is responsible for all licenses and authorizations, but you’ll also want your contract to state that the user will “hold harmless and indemnify” your venue if they fail to obtain the necessary licenses and authorizations. In essence, this means that the user will have to reimburse you for any costs and expenses you incur if you are required to pay for licenses, incur legal expenses, or suffer any other damages or losses because your users failed to obtain the rights and licenses they were supposed to. (They’d probably have to do that anyway, but an indemnification and hold harmless provisions makes that obligation explicit.)

Second, there are many venues which require users to produce “proof” that they have all of the required licenses prior to the first performance date as a condition of being allowed to use the space. This gives you a chance to assess whether or not the appropriate licenses have actually been obtained.

Third, you should obtain your obtain your own blanket licenses directly from ASCAP and BMI, as well as from SESAC. These three organizations issues blanket licenses directly to venues such as yours to ensure that any music from their catalogs is properly licensed for public performances. While this will require you to keep a running account of all music publicly performed at your venue as well as to incur the license costs yourself, you can pass the costs along to your users through your rental fees. Its also the best and only way to ensure that your legal responsibility as the owner/manager of the venue is being met, at least with regard to performances licenses. You’ll still need to make sure your users obtain the other right and licenses they may require for their performances.

Lastly, I would consult with other venues of similar size and nature to your own and see if they already have licensing policies and procedures that you might be able to adopt for your own use. There’s no need to reinvent the wheel where others have already rolled it up the hill—just beware of any venue that tells you either: “We just ignore all of that stuff and haven’t been caught yet!” or “Those rules don’t apply to non-profits.” Run away!

_____________________________________________________________

For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

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