Archive for the ‘Artist Management’ Category

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Agents and Artists: Who Controls the Money?

Thursday, October 17th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

I am considering working with an agent, but almost every agent I speak with wants to collect my engagement fees on my behalf. Why can’t I collect my fees and just pay the agent? If an agent collects my fees, should I ask for a separate bank account? What about statements? Is it reasonable to ask for monthly accountings? When do I get paid? What’s standard?

As the artist’s representative, its quite common for an agent or manager to accept fees on behalf of an artist. Among other reasons, it allows you to focus on your performances, especially when touring, while allowing your agent to follow up on contracts, payments, and other logistical issues. However, just because a practice is “common”, that does not make it mandatory.

Should you agree to permit a representative to collect fees on you behalf, agents and managers are subject to state “agency laws” which impose certain obligations and duties. (Agency laws should not be confused with “licensing” requirements. Agency laws govern any relationship where one party acts on behalf of another and apply regardless of licensing requirements.) Pursuant to most state agency laws, when an agent or manager accepts fees on your behalf, its your money, not theirs. They must hold the money “in trust” until it can be turned over to you. As such, agents have a fiduciary obligation to treat that money separately from their own. If the parties mutually agree, the agent can deduct his or her commissions, as well as any other expenses, but the balance of the money belongs to you and the funds must never be co-mingled with the agent’s own money.

While an agent is not necessarily required to keep an artist’s money in a separate bank account, it’s a highly advisable business practice for an agent to maintain a separate trust account to hold the fees collected on behalf of all of the artists on their roster. This protects both the agent as well as the artist. For one thing, an agent is legally required to account for all money collected and held on behalf of an artist. Placing the money into a separate trust account not only makes such accountings easier, but also helps to ensure than an artist’s money doesn’t accidentally get co-mingled with the agent’s own money. For instance, when an agent collects an engagement fee, the fee should go into the agent’s trust account. If the agent is owed a commission, the agent can transfer the commission from the trust account into the agent’s personal account. This is especially important in the case of deposits. In the event an engagement is cancelled, a deposit may need to be returned. Having the money held in a separate trust account ensures that the funds are not prematurely dispensed, for which both the artist and agent could be liable.

As for whether you should demand your own, personal trust account, that’s probably overkill. Even attorneys are not required to do that. Provided the agent keeps accurate books and records, its perfectly acceptable for an agent to have a single trust account where all of the fees collected on behalf of agent’s artists are kept separate from the agent’s own business accounts. It’s then a simple matter of bookkeeping to determine which money belongs to which artist.

As for whether you should ask for monthly accountings, you should definitely ask for accountings as agents are legally required to provide them. Whether or not “monthly” is reasonable depends on the specific circumstances. If you are performing monthly, then monthly may be appropriate. Otherwise, quarterly may be more reasonable. Many agents will provide an accounting each time you are paid, as opposed to at fixed intervals.

Always remember: nothing is “standard.” Agents and managers work for you, not the other way around. You have a right to ask for whatever terms and conditions you want. Of course, that doesn’t mean they have to agree, but being able to post questions and have your concerns respected and reasonably addressed, even if you don’t get the answers you want, is key to determining whether or not to pursue an agent relationship.

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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 Agents, Artist Management, Contracts, Law and Disorder: Performing Arts Division, Liability | Comments Closed

The Power of Contractual Silence

Thursday, October 10th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

 

We booked an artist to perform at our theater, but ticket sales have been much lower than we expected. The show is a month away. We are a small venue with a small budget, and can’t afford to present an artist if we can’t sell enough tickets to cover the costs. We signed an engagement contract, but it doesn’t cover cancellations, unless it’s for illness or weather related. As the contract is silent on this, I offered the agent what I thought was a standard buy-out fee (25% of the total fee), but he is insisting on the full amount. That doesn’t seem fair.

 

What doesn’t seem fair? That you signed a contract and the agent is expecting you to live up to your end of the bargain? The whole point of a written contract is to memorialize all of the terms, understandings, conditions, and requirements of a business transaction—even if the transaction is in show business. If a party fails to abide by a term, understanding, condition, or requirement of a written contract, then that party has “breached” the contract.

Just like music is a combination of both sounds and silence, terms and requirements that are not part of a written contract are just as important, if not more important, than the ones that are. This is because only terms, understandings, conditions, and requirements that are actually written down are considered to be part of a legally binding contract. So, for example, if an artist wanted to be paid his fee on the night of the performance, but the engagement contract only states the amount of the fee and not when it is to be paid, then the presenter is not obligated to pay the fee on a specific date. Similarly, if an engagement contract doesn’t have a cancellation clause, then there is no right to cancel and neither party can cancel without the consent of the other. This means that, if the artist gets a better offer, she doesn’t have the right to cancel the engagement. However, it also means that you don’t have the right to cancel, either, just because you’re not selling enough tickets.

I frequently hear both agents and presents talk about “industry standards and customs” as a way to resolve contractual disputes or re-negotiate contracts they didn’t bother to read in the first place. Except in rare circumstances, industry standards and customs are completely and utterly irrelevant. Moreover, if you gathered four arts professionals in a room and asked them to describe industry standards and customs on any given topic, you would get four different answers! If a contract fails to address an issue or condition that is important to you, you cannot presume that you get to resolve the silence in your favor and do what you want. Rather, if the contract is silent on a specific issue, then both parties must agree on a resolution of that issue.

In your case, if your venue’s policy is to cancel an engagement if you can’t sell enough tickets, then you need to make sure that this policy is written into every engagement contract you sign. Otherwise, you have no right to do so. If you cancel, and the artist or the artist’s agent doesn’t agree to accept a lesser amount, you are liable to pay the full amount of the engagement fee—so, assuming there are no other cost savings to you in cancelling and still paying the full fee, you might as well let the show go on.

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

Does The Government Shut Down Also Shut Our Doors?

Thursday, October 3rd, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I have several visa petitions pending as well as applications for Central Withholding Agreements. What impact will the government shutdown have? Do I need to be worried?

That depends on whether or not the lack of an operational government worries you. Granted, it hasn’t been that particularly operational for quite some time. Whenever my computer becomes non-functional, I find that shutting it down and turning it back on again sometimes helps. Perhaps this will have a similar effect. In the meantime, short of accepting the fact that it may be time to consider putting HM The Queen on our stamps and currency, here’s what we’ve got to work with:

Obtaining a visa involves three government agencies: (1) United States Citizenship and Immigration Services (USCIS), which reviews and (theoretically) approves visa petitions; (2) The United States Department of State which operates the U.S Embassies and Consulates where artists take their petition approvals, are interviewed, and apply for visas; and (3) United States Customs and Border Patrol which monitors all ports of entry and (more often than not) admits artists into the country. Applications for Central Withholding Agreements, on the other hand, are processed by the Internal Revenue Services (IRS).

1.      USCIS:

Because USCIS charges fees for visa petitions, it is not entirely dependent on

Congressional funding. As a result, at least for the immediate future, USCIS will remain open and will continue reviewing visa petitions with the customary unpredictability and quirky efficiency we have all learned to expect. However, visa petition fees do not cover all of USCIS’s operational costs. As a result, if the shutdown continues, you can expect to see increasing delays and slower processing times.

In the category of “every cloud has a silver lining”, a large number of petitions for non-arts related employment visa cannot be processed because they involve other federal agencies, such as the Department of Labor, which are completely closed. As a result, at least in the immediate future, you may actually see speedier processing times for O and P petitions as USCIS examiners find themselves with less petitions to review.

2.      U.S. Department of State (U.S. Consulates and Embassies):

Like visa petitions, visa applications and interviews at U.S. Consulates and Embassies, are “fee-based” and are not entirely dependent on Congressional funding. So the good news, such as it is, is that most U.S. Consulates and Embassies will continue interviewing applicants and processing visas…so long as the buildings remain open. That’s right, while consular services may continue, the longer the shutdown continues, the more likely that that staff support, security and other services will be cut off and the buildings and embassy compounds in which the consulates are located may be forced to close or restrict access.

Another concern is that, even where USCIS has approved a visa petition, citizens from certain countries (and you know who you are) require additional security clearances and background checks before the consulate can issue the visa. As other U.S. agencies are required for such clearances and checks, if these agencies close or shutdown, the visa applications dependent on these clearances cannot be processed.

As each U.S. Consulate maintains its own website, the best advice is to continually visit the website of whichever U.S. consulate you need to determine whether or not that consulate is open and functional. You can link to all consulate from the Department of State’s website: www.state.gov

3.      U.S. Customs and Border Patrol:

As their functions constitute law enforcement, CBP officials are considered “essential personnel.” As result, all borders and ports of entry will remain open and fully operational and there should be no immediate impact on the ability of visa holder to enter the U.S. However, as the shutdown progresses, staffing could may become more limited, resulting in longer lines and grumpier than usual CBP inspectors—especially given that “essential personnel” have the honor of being required to work without the requirement of being paid. Accordingly, you should plan connecting flights accordingly.

One additional note of concern is that the CBP website will not be maintained during the lapse in appropriations. As you may know, since May 1, CBP has no longer been issuing physical I-94 cards to indicate when an individual entered the U.S. and the length of their approved stay. Instead, that information is being entered electronically and, should someone need to verify that they are legally present in the U.S., they can use the CBP website to print out a copy of their “digital” I-94 card. Because approximately 6,000 CBP positions, primarily held by technicians and support staff, are impacted by the shutdown, the website will not be available. You should also expect delays in updating the system once it comes back on-line.

4.      Internal Revenue Service:

It should come as no surprise that the CWA program is considered “non-essential” and, as a result, the program was shut down along with the rest of the government. All processing of applications has stopped and will not resume until the government decides to re-open. At which time, you can expect a delays as the IRS agents attempt to catch up on the backlog. In the interim, engagement fees not covered by a CWA or other applicable withholding exemption, will be subject to 30% withholding.

Obviously, this is an ever changing situation and may have changed already by the time you read this. What has not changed, and is unlikely to change, is that when planning U.S. tours and performances of non-U.S. artists, you should always plan as far in advance as possible and allow as much time as possible. While we will continue to provide updates as they become available, you should also regularly monitor www.artistsfromabroad.org for the latest news.

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For additional information and resources on this and other legal and business issues for the performing arts, visit www.gartslaw.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, Central Withholding Agreements, Law and Disorder: Performing Arts Division, Taxes, Touring, Visas | Comments Closed

Visas for Recording Artists

Wednesday, September 25th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

If a foreign singer (who is not a citizen of a country that is eligible for the visa waiver program) gets a record deal in the USA, what kind of visa would they need to apply for? And if the singer is currently living in a different country with a residency permit, can they apply in that country where he or she is living, or would they need to return to their own country to apply for the visa? Thanks.

Thanks. This is an easy one.

To work in the US, which includes entering the US for the purposes of recording an album (regardless of whether or not the singer is paid), the singer would need to apply for an O-1B visa. An O-1B visa is for individual artists of “extraordinary ability.” To obtain the visa, a US-based petitioner (which could be the record label or an appointed agent) would need to prepare and file a visa petition with United States Citizenship and Immigration Services (USCIS). (Naturally, there are fees and costs to file the petition.)

Once the visa petition is approved, USCIS will issue an “approval notice.” The singer will need that to make an appointment at a US Consulate and schedule a visa interview. He or she will need to complete an on-line application form and pay a visa application fee. However, the singer can go to any US Consulate in the world that is convenient for him or her. He or she does not have to return to their home country or even use the consulate in the country where they are a living. Any consulate in any country with a US flag outside will work. (Just make sure it’s a consulate that issues visas—not all do.) Assuming there are no problems with the background check, and assuming the singer is not from a country the US doesn’t like (which, sadly, is a larger list than you may think), the visa should be issued in 3 or 4 days.

There is a rare exception you should be aware of which may or may not be applicable. An artist is not required to have an artist visa to enter the US for the sole purpose of using a recording studio to record an album that will not be sold or distributed in the US, and provided there will be no public performances or concerts. If this applies, an artist only needs to have a visitor visa (unless they are citizen of a visa waiver country, in which case, they will only need their passport to enter as a visitor for up to 90-days.)

Remember, everything you could possibly want to know about visa and tax issues for foreign artists wishing to perform in the US, including things you didn’t even know you needed to know, can be found on: www.artistsfromabroad.org

__________________________________________________________________

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

“Thanks For All The Trouble, But I Made Other Plans!”

Wednesday, September 18th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

I work for a venue that engaged an artist for a concert. I agreed to pay for hotel and travel. After the engagement, the artist told me that she decided to stay with friends and drive. I can’t get my money back. Can I deduct my losses from her fee?

No, you cannot under any circumstances deduct these costs from her fee. That would be like agreeing to provide food for an artist backstage and then asking the artist to reimburse you for the left overs.

I realize that times are tough (though, in the performing arts, times have always been tough, so, perhaps I should say that I realize times are tougher), and every penny counts. Certainly, had the artist informed you in a timely manner that she didn’t need the hotel or travel arrangements, you could have cancelled or even saved yourself the time and expense of making the arrangements in the first place. However, presumably, the engagement contract did not require the artist to inform you if she did not require hotel or travel. As a result, these were not “losses”, but, rather, “costs” which you contractually agreed to incur.

I would argue that, from a professional standpoint, the artist or her management should have informed you of the artist’s change of plans regardless of whether or not they were contractually or legally required to do so. However, if you agreed to pay for hotel and travel, then you were contractually obligated to incur these costs. If the artist decided to make her own arrangements and not avail herself of the hotel and travel you provided, that was the artist’s decision to make. Your only obligation was to comply with the terms of the contract, which you did.

In the future, you may want to consider adding a provision to your engagement agreements that, if you agree to incur hotel and travel costs, an artist must inform you in a timely manner if they decide to make their own arrangements and reimburse you if they fail to do so. In addition, should you ever consider re-booking this particular artist in the future, I would expect you to ask for the engagement fee to reflect the unnecessary expenses you incurred…or, at the very least, tell the artist to stay with her friends and drive.

_________________________________________________________________

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

Showcasing: A Rare Visa Exception

Wednesday, August 28th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

Do non-US artists need artist visas when they come in to perform a showcase at a booking conference? They don’t get paid. Its just to get bookings. In fact, the artists lose money doing this. Can they enter on a tourist visa or do they have to spend even more money and go through the process of getting an artist visa?

Its rare that someone asks us an immigration question where they actually might like the answer…this may be one of those instances.

However, its first always worth remembering that, under current U.S. immigration law, whether or not a foreign artist is required to have an artist visa (almost always either an O or a P) is not related to payment. What triggers the need for an artist visa is performance. Whether or not an artist is paid, whether or not tickets are sold, whether or not the performance is public or private, whether or not the performance is for a non-profit educational or a cultural organization, if an artist performs, and there is someone watching the performance, he or she is required to have an appropriate artist visa.

Except for rare and limited exceptions, an artist can never perform on a visitor visa or, if applicable, under the visa waiver program. One exception is a competition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of participating in a competition where there is no payment other than expenses and a prize, monetary or otherwise. Another exception is an audition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of auditioning or meeting with producers or presenters in the hopes of being hired to perform in the future.

While there is no official codification of a showcase being regarded as an audition, the U.S. State Department in conjunction with U.S. Citizenship and Immigration Services have long taken the position that a showcase is regarded as an audition if it meets the following criteria: The showcase is not open to the public, no tickets are sold or available, attendance is open only to registered members of the booking conference, and the artists are not paid and are responsible for their own expenses. Also, the artist cannot perform any other engagements in the U.S. while on the same trip. In other words, they need to get in, perform the showcase, and get out. If these criteria are met, then an artist may enter the U.S. and perform at the showcase on a visitor visa or, if applicable, a passport issued by a “visa-waiver” country.

Be forewarned: simply calling a performance a “showcase” is not sufficient. Nice try, but that won’t work. If an artist books a venue, sells tickets or otherwise makes tickets available to the public, but allows booking conference attendees to attend free, that is NOT a showcase for purposes of the artist visa exception and the artist will be required to have an appropriate artist visa. Similarly, booking an engagement with a low fee simply because the artist or the artist’s agent/manager believes such engagement will be an opportunity to showcase or introduce the artist’s talents to the U.S. market in the hopes of getting future bookings is also NOT a showcase.

If you believe that you or an artist you represent may qualify for the showcase exception, then, if the artist is traveling on a passport from a “visa waiver” country, he or she needs to travel with a letter from the artist’s agent/manager or, even better, from the booking conference itself, confirming that all the elements of the exception are met. If the artist is traveling on a passport from a “non-visa waiver” country, then he or she will need to apply for a visitor visa at a U.S. consulate, but should bring the appropriate letter with them explaining that the showcase exception applies.

__________________________________________________________________

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

How Does An Unauthorized Arrangement Become Grand Theft Auto?

Wednesday, August 21st, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: Several years ago, our small ensemble hired a composer to arrange and re-orchestrate a work for us to play. The work itself, which is still under copyright, was originally written and arranged for a large orchestra. Recently, we made a video of our group performing the piece, put it on YouTube, and the composer’s publisher had it taken down. The publisher also told us that the composer had not authorized any arrangements or re-orchestrations. They also told us we couldn’t even perform it live anymore. Is this true? Even though we paid for the re-arrangement ourselves? Even though we have always obtained performance licenses through BMI? We have been performing this arrangement for years and the publisher has never objected before. It doesn’t seem fair. We have engagements in 2013/2014 to specifically perform this piece as part of our repertoire. When you obtain a performance license through ASCAP, BMI or SESAC, you obtain the right to perform a work as written. This includes the right to “interpret” the work to reflect your own style, artistry, expression, etc. However, it does not include the right to re-orchestrate or re-arrange a work in a manner that changes the fundamental nature of the work. For example, obtaining a performance license to perform a work written for a chamber ensemble does not give you the right to “re-arrange” it for four banjos and a zither—as tempting as that may be! The fact that you paid for the re-arrangement doesn’t give you any rights to perform it, if the re-arrangement itself was unauthorized. That’s like stealing a car, but arguing that it wasn’t a crime because you paid for the gas. (My partner, Robyn, says I never met an analogy I didn’t like…so let’s go with that.) However, on the plus side, such as it is, should the composer/publisher of the work ever decide they like your arrangement, they can’t use it without your permission either. The right to the re-arrangement belong to the owner of the re-arrangement—which could be your ensemble or the composer of the re-arrangement, depending on how your commission agreement was drafted. (Remember, the mere act of paying for something doesn’t inherently convey any rights.) The fact that you have been performing this arrangement to date without any trouble might buy you an argument—albeit a weak one—that your past performances were “implicitly” licensed. However, now that the publisher has officially told you that your arrangement is unauthorized, any future performances beyond this point would constitute copyright infringement. The line has been drawn. I know it doesn’t seem fair when a composer, author, publisher, or copyright owner refuses to give you the rights you need—especially in a situation such as yours where your arrangement obviously has artistic merit or else you wouldn’t be getting engagements to perform it. However, bear in mind that those same rules also protect your own rights. Imagine your position if someone had taken that video you posted on YouTube and, without your permission, altered it or used it in such a way that you found artistically objectionable. You would be just as adamant that they must stop. Also, bear in mind that its almost always easier (not to mention legally required) to get rights by asking and negotiating ahead of time, rather than taking what you want and then asking for forgiveness or permission after the fact. It’s the difference between borrowing and stealing a car. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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

Its Not The Length Of A Contract That Matters, Its How You Use It

Wednesday, August 14th, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: I want to start getting the artists I represent to sign a written representation agreement. However, all of the models I have found are too long and complex. I definitely do NOT want a 14 page contract, more like 4 or 5 at most.  I won’t be able to get folks to sign it otherwise!  And, can the language be more simple? I like simplicity. When drafting contracts, length and simplicity should be the least important factors. Such restrictions are arbitrary. That’s like saying: “I want to drive from New York to California, but I absolutely refuse to use a car that requires tires or gas.” You’re going to have a problem satisfying your travel needs and goals. The goal of any contract is not to make it simple enough so everyone signs it. If that’s your goal, you really only need two sentences: “I agree to book engagements for you. You agree to pay me.” Let’s assume both parties sign it. What if the artist doesn’t pay you or leaves you for another agent? Contracts are not self-enforcing. If one party breaches a contract, then merely having a signed contract is not going to force them to comply. You have to file a lawsuit to enforce a contract. That’s expensive…and often pointless if the artist has no assets. Worse, if your contract is too simple and doesn’t adequately address the nature of the dispute, then the other side’s attorney is going to poke all sorts of holes in your “simple agreement” and you’re going to lose anyway. The goal of a contract is having a document that adequately addresses your concerns and issues and spells out all of the key terms so that you and your artist have a chance to review and discuss them. A meaningful contract will assist both parties in routing out any presumptions or misunderstandings before problems arise. Whether it takes 4 pages to do that or 14 pages, the length of your contract will depend on the complexity of the relationship, the length of the relationship, the needs and concerns of the parties, the amount of money at issue, and a myriad of other issues. For example, if an agent takes a commission of 20% off everything they book for the artist, do you earn your commission when the engagement is booked or actually performed? Does “everything” include 20% of reimbursements for travel and hotel expenses? Are you exclusive? Do you get a commission on engagements that the artist books on their own? And when do you get paid? And how do you get paid? Are engagement fees sent to you or do you invoice the artist? What about engagements that happen after the term? How long is the term? Can you cancel? Can the artist cancel? What if the artist decides to cancel and goes to another agent? Are you still entitled to the commission on engagements you booked? And the list goes on… Think of your contract as a checklist that you will use to facilitate a discussion with each new artist you bring on to your roster to help you decide if you want to work with them and vice versa. If there are issues that are not important to you, then you can take them off your list and remove them from your contract. However, if there are expectations or requirements that are important to you, those need to be adequately explained and detailed. Similarly, while the language you use to explain your expectations and requirements can be simple, it also needs to be appropriate. While I am the first to criticize attorneys for using overcomplicated legal babble, more often than not, a lot of language that confuses artist and agents in contracts is not necessarily “legalese”, but basic business terms and practices with which they are not familiar. Let’s face it…a lot of artists as well as agents, managers, and presenters, do not necessarily have the same business background and training as do entrepreneurs and business people in other, less fulfilling industries. That merely means there are new terms to learn, as opposed to avoid, as your business grows and matures. My point is that your focus needs to be on finding the right language to adequately explain your terms, concerns, expectations, and requirements. I’ve seen too many parties get burned because they dumbed down a contract just to make it shorter. That’s a waste of both time and money. More important, in my opinion, arbitrarily “dumbing” down a contract merely on the assumption that artists won’t understand anything more complex does a disservice to the all the inherently bright, creative, and intelligent denizens of our arts industry who merely need an opportunity to be taught. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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

Visa Envy: Why Is Yours Longer Than Mine?

Wednesday, July 31st, 2013

By Brian Taylor Goldstein, Esq. I am writing you about a question we have in regards to the length of stay that USCIS grants for O-1B visas.  In the past few years, it has been our experience that USCIS will not grant 3 year visas for a time period that has gaps from anywhere to 3 to 6 months between engagements.  Therefore, for our artists, we have been applying for month long visas, or three month long visas, etc, which has started to become prohibitively expensive for them, and rather inconvenient and time consuming for us. We were told by an artist that is moving off of our roster that his new manager will be applying for a 3 year visa for him, regardless of the fact that this particular artist has gaps of 6 or more months between engagements, or no engagements at all after a certain point.  So our question is, has the USCIS policy changed, or worse, do you think it’s possible that the artist’s new manager has some kind of connection or agreement with USCIS that we do not? Artist visas are not defined by length, but by type: O-1 visas for individual artists, P-1 visas for groups, and P-3 visas for culturally unique individuals or groups. The length of the visa validity period depends on how many engagements and other activities (rehearsals, production meetings, receptions, etc) the artist or group has in the United States—up to 1 year of engagements for P visas and up to 3 years of engagements for O visas. Officially, USCIS will approve a single visa validity period where all the engagements constitute “a continuous event”, such as a tour. However, in its inimitable predilection for unhelpfulness, USCIS has no specific definition of “a continuous event” and no policy on the minimum or maximum length of “gaps” between engagements and activities. Rather, USCIS examiners are given complete, unfettered discretion when it comes to determining whether a gap between engagements is too long and will require filing separate petitions. Let’s say, for example, that an artist has an engagement in October 2013 and their next US engagement is not until April 2013 and the manager files a visa petition requesting a validity period of October 2013 through April 2013. USCIS could either approve the visa for the entire length of the validity period requested, notwithstanding the six month gap between engagements, or it could only approve enough time to cover the October 2013 engagement and require the manager to file a new, separate petition for the April 2013 date. When dealing with this issue, anecdotal evidence and actual experience is your best guide. While I have known USCIS to approve visa petitions even with large gaps between engagements, more often than not it will “cut off” a visa validity period where there are more than 3 – 4 months between engagements or activities. My general advice is to keep gaps as short as possible. As for shortening gaps, or even extending the length of an entire visa validity period, consider this: you are not limited to including in your visa petition only engagements dates that have signed engagement contracts. You do not have to provide a signed contract to support each engagement. Instead, USCIS will accept any written confirmation of an engagement, including unsigned term sheets, deal memos, emails, confirming letters. Even if a date is still under negotiation, so long as you are holding that date on the artist’s calendar, it can be including on the visa petition along with an accompanying written confirmation that the date is being held. In addition, you can also provide a list of the artist’s non-US engagements and explain that when the artist is not performing in the US it is because the artist will be performing elsewhere in the world. I can assure you that USCIS has no special deals with your ex-artist’s new manager. According to your question, your ex-artist is merely claiming that his new manager “will be applying” for a 3 year visa for him. “Will be applying” is not the same that as “has obtained.” If the artist has large gaps in his itinerary or lacks 3 years of engagements, he will be receiving a Request for Evidence (RFE) or a visa denial, not an O-1 with a validity 3 years. Don’t believe everything you are told, especially by disgruntled ex-artists who want you to believe they have moved to greener pastures. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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

A Room With A View…and a 1099

Wednesday, July 24th, 2013

By Robyn Guilliams Dear Law and Disorder, I have been in artist management for a long time, thought I had seen it all, but something just came up for one of my artists that has me completely stumped.  My client was sent a 1099 for a hotel stay that the presenter provided for an engagement.   Most presenters that I work with pay for the hotels, but never once has the value of that hotel been included on the 1099 that the artist was sent.  This particular place is a big resort, they too are the presenter.  They often trade rooms for fees (it’s a very exclusive resort!), or they give small fees plus the accommodations (which includes meals), usually for two nights as a perk to the artist. It gets tricky for the artist, because they don’t pay for the hotel, so they have no expense to write off for that income. So that may mean they end up paying tax on that amount, thereby losing money doing this performance.  That’s where this goes wrong for the artist, in my opinion.  Artists obviously do this gig because of the resort.  But, this has left a bad taste.  What’s up with issuing the 1099?  They say it is an IRS law that says hotel costs are income for the artist.  By the way, they don’t tell you this up front…Searching for the Truth Dear Searching for the Truth: The answer to your question depends on the specific facts of the situation.  (A lawyer’s favorite answer to every question is – “It depends”!) Generally, if a presenter provides accommodations to an artist as part of the artist’s compensation, the value of the accommodations is NOT considered taxable income to the artist, if the accommodations are reasonable and necessary.  For instance, if an artist is travelling from California to New York to play one show, the presenter providing the artist with two nights of hotel accommodations is reasonable and necessary.  The value of the hotel accommodations in this instance would not be considered taxable income to the artist, and need not be included on the 1099. On the other hand, if a pianist travels away from home to play a concert and the presenter provides hotel and airfare for the pianist, her husband, her sister, her sister’s next-door neighbor, and the next-door neighbor’s pet monkey, this is not reasonable and necessary.  The value of the airfares and accommodations for everyone except the pianist would be considered taxable income and SHOULD be reported to the artist on a 1099. Unfortunately for your artist, there are a few comments in your letter that indicate that the accommodations at the resort exceeded the “reasonable and necessary” standard.  You state that the artists at this resort often accept accommodations in lieu of fees, or accept smaller fees plus accommodations.  Why would an artist accept no fee, or a substantially smaller fee, if the artist wasn’t receiving something of value (in addition to the hotel room) in return?  Plus, you mention that artists “do this gig because of the resort”… and the presenter provides “two nights as a perk to the artist”.  Again, the artist is receiving something of value besides the usual hotel accommodations.  If an artist is receiving a significant personal benefit from the accommodations besides a place to lay his head after the show (such as the opportunity to enjoy resort amenities or an extra night of accommodations), then the value of the accommodations constitutes taxable income and must be reported. You say that it’s tricky for the artist, because he has no expense to write off his income.  But wouldn’t this be the case if he was receiving his usual fee plus a regular, non-resort, hotel room?  I’d suggest that in the future, unless your artist understands the taxable “value” of receiving resort accommodations, including the included room service and use of the infinity pool, have him stay at the Motel 6 down the street. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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

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