Archive for the ‘Acts of God’ Category

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The Band That Stood Up To God…and Lost

Thursday, October 24th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

We recently has a situation where one of our groups showed up at a festival, but just before they were to go on stage, the police shut down the event due to an approaching electrical storm. The presenter had given the group a deposit for 50% prior to the event, but is refusing to pay the balance even though our booking agreements have a specific clause that says that, in the event of cancellation, except for Acts of God, the artist gets the full fee. The presenter signed the agreement. The band showed up and were ready, willing and able to perform. Aren’t they entitled to the full fee? They need this money to cover their costs for flying, driving, and internal costs. Isn’t the presenter supposed to get event insurance to cover these sorts of things?

When you say the band was “ready, willing and able to perform”, are you saying that, had the police not shut down the event, they would have performed anyway? In a lightning storm? Seriously? While I am solidly rooted in the “show must go on” tradition, you’re either representing the industry’s most desperate band or the most reckless—or both. Had lightning struck the stage, injuring either a band member or a member of the audience, the band would have been facing some significant lawsuits and liability for gross negligence.

An “Act of God” is an unexpected event or occurrence that is beyond the control of a party. If a party breaches a contract because of an “Act of God”, then the party is not liable. Concerts cancelled due to severe weather are among the most common “Acts of God.” The fact that, in this case, the police shut down the event as opposed to the actual hand of the almighty descending from the clouds and cancelling the event with a host of celestial trumpets does not change the fact that the presenter did not cause the lightning storm and had no choice but to cancel the event—literally, given that the police ordered the event to be closed. Thus, the presenter is not liable for the cancellation and the band is not entitled to the full fee. In fact, assuming the presenter let the band keep its 50% deposit, the band actually got more than it was entitled to.

As for whether or not the presenter was supposed to get event insurance to cover weather related cancellations, you seem to be under the impression that, had the presenter obtained such insurance, then the band would have been paid its full fee. Not necessarily. Unless your contract obligated the presenter to purchase an insurance policy and name the band as an additional insured, then the presenter’s event cancellation insurance policy would only have covered the presenter’s liabilities and expenses. As the presenter isn’t liable to pay the band its full fee, the insurance policy wouldn’t have paid it either. On the contrary, if the band regularly plays outdoor events and concerts, and wants to “ensure” that it losses are covered in the event a concert is cancelled to due weather, then the band should consider getting its own event cancellation insurance policy. Or you could always just pray.

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

Does God Serve On Their Board?

Wednesday, March 20th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We booked one of our artists to perform at a non-profit venue. The booking agreement was signed by all parties. We just received a phone call from the venue that their board met last night and decided unanimously to cancel the engagement due to poor ticket sales. The contract states that our artist is to be paid a cancellation fee if the date is cancelled for any reason except an act of God. However, the venue is claiming that this is an act of god and they do not have to pay. Any suggestions?

While I am familiar with many board chairs and presidents who erroneously believe they rule with omnipotent powers, their decisions do not constitute “Acts of God.” Moreover, unless there is a specific definition of “Acts of God” in a booking contract that expressly states that ticket sales are subject to divine will and authority or that a recognized deity from an established pantheon is in charge of marketing and sales, poor ticket sales are also not “Acts of God.”

Contrary to myth, non-profits are not exempt from the laws and legal obligations which govern all businesses, for-profit or otherwise. They must license copyrighted materials, pay their employees and independent contractors, and honor contractual obligations just like everyone else. In this case, you would appear to have a fairly straightforward breach of contract situation whereby the venue is contractually obligated to pay your artist the agreed upon cancellation fee.

Regardless of the legal merits of your claim, your first course of action should not be threats or demands. Instead, explore every possibility of a creative and mutually reasonable solution. Non-profits are under a considerable amount of pressure and, more often than not, in situations such as these, they are acting out of fear and self-survival rather than any nefarious intent. Can you reschedule the date? Can you offer to provide additional marketing materials or suggestions? Are there any expenses or costs which can be reduced? Are there any other presenters in the area who might be willing to partner with the venue and share expenses? Assuming your venue is unwilling to budge or consider alternatives, then stating the legal merits of the situation and suggesting mediation or arbitration would certainly be appropriate.

Ultimately, this may be one of those rare instances when filing legal action may be warranted. If your booking agreement does not provide for attorneys fees and costs in the event of a lawsuit, and if the engagement fee is not substantial enough to warrant the time and aggravation, you may be able to file a small claims action in lieu of a more formal trial. Sometimes, merely filing a lawsuit or claim is enough to bring them to the bargaining table. However, always remember that winning a lawsuit doesn’t mean you or your artist will ever see a dime. If the venue refuses to pay, you’ll have to pursue them further with bank liens and property attachments until they either pay or file bankruptcy or close entirely. While not resulting in any damages for you or your artist, this can often be its own form of divine retribution upon the venue.

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

You’re Not the Boss of Me!

Wednesday, February 20th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law & Disorder,

 

Our ensemble has recently had friction with its management over weather-related travel concerns. We had concerts scheduled during both Hurricane Sandy and this most recent blizzard in the Northeast, and as both approached, discussed postponing them with our management company. In both instances, they stated that since plane, train, and public transportation travel had been halted, we would need to rent a van and drive to the engagements. They said that due to the nature of our contracts, we would have to make every effort to get there no matter what. We had serious safety concerns about doing this, due to the predicted severity of the storms. In the end, it turned out in both instances that the presenters chose to reschedule the concerts for hopefully sunnier springtime dates, so we did not need to travel after all.

 

I know that our contracts with presenters include an “Act of God” clause, and my question is, who is empowered to make the decision about whether invoking this clause is the right thing to do? The presenter, our management company, or us? What if all three parties do not agree? Can we refuse to travel if we feel conditions are unsafe? Also, our ensemble is a non-profit organization, with the musicians hired as independent contractors. I am concerned that should we ever go ahead and travel to an engagement during bad weather conditions against our better judgment, and should an accident occur, that the individual musicians would have grounds to sue our non-profit for essentially telling them they must go. Would our management company be held responsible at all since they would not allow us to postpone? Help!

 

An “Act of God” clause is purely a creature of contract. It’s the terms of the contract (not God!) that defines what constitutes an “Act of God” and who gets to make the decision as to whether or not to invoke the clause. If the contract merely says something like: “This engagement may be canceled in the event of an Act of God”, it’s fairly meaningless. While I am familiar with lots of artists, managers, and presenters who prefer short and simple contracts, the problem with “short and simple” is that, in cases such as yours, it can also mean “vague and useless.” A good Act of God clause will define what constitutes an Act of God and who can make the determination, as well as address such issues as whether or not deposits need to get returned or engagements re-booked.

In your situation, to determine whether the nature of your contract, in fact, required you to make every effort to get there “no matter what,” I’d need to review your specific contract. However, I can’t image an engagement contract that actually required you to risk personal safely to get to the engagement—especially if planes, trains, and public transportation had all been halted. Even if you had, indeed, signed such a contract, there are always alternatives to risking personal safety merely to comply with a contract—including a legal defense called “impossibility of performance.”

Regardless of what a contract says or doesn’t say, the ultimate decision to cancel or postpone an engagement, whatever the reason, is always yours. Whether you’re canceling or postponing because you feel you cannot travel safely or canceling because you want to pursue a more enticing offer, those decisions are yours to make, not your manager’s.

Similar to Act of God clauses, manager/artist relationships are also defined and determined by contracts. However, unlike Act of God clauses, most state laws impose two legal obligations on all agents and managers which can never be waived or altered by contracts: (1) All managers owe a fiduciary duty to their artists (ie: they must put the artist’s interest above their own) and (2) All managers must follow the instructions and directives of their artists. (There are other obligations, too, but these are the most important.)

Like an attorney, a manager is there to provide advice, counsel, and direction, but not to give orders or commands. Unless a manager is also a producer, the manager works for the artist, not the other way around. Final decisions are always yours to make. Of course, the consequences—including being sued by presenter for breach of contract—are solely yours to bear, as well.

Granted, the manager/artist relationship should always be one of mutual respect, otherwise it doesn’t work for either of you. If a manager feels you are not taking their advice and counsel, and, as a result, you are adversely affecting your career, then the manager may rightly choose to no longer work with you. Likewise, if there comes a point when you believe your manager is putting his or her interest above your own, its time to move on.

As for your liability question, let’s save that for another post. For now, suffice it to say, under our less-than-intuitive legal system, anyone can sue anyone else for just about anything—especially if an artist is injured because you required them to drive in poor weather conditions. Get insurance! Stay tuned.

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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!

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

Not Even God Can Act Without A Contract!

Wednesday, November 14th, 2012

By Brian Taylor Goldstein, Esq.

No sooner had Super Storm Sandy begun crashing into the East Coast when my phone started ringing with cancellations. The most common question went something like this: “The presenter needs to cancel, but they already paid a deposit. Do we have to give it back? What the protocol?” The second most common question went something like this: “We booked an artist and paid a deposit. We’re being evacuated and need to cancel. Can we get the deposit back? Naturally, I always ask to see the contract. As I suspected, in almost each case, while the contract contained an Act of God clause, it merely stated that either party could cancel “in the event of an Act of God.” In an effort to “keep things simple” the parties also kept their contracts fairly worthless!

In essence, an Act of God provision in a contract (also sometimes called “force majeure” is a contractual provision which permits one party to cancel or breach the contract without having to pay damages or incurring any liability to the other. So, if an Act of God forces an artist to cancel, he/she is not liable to the venue for the venue’s lost ticket sales, lost out of pocket costs, or the costs of hiring and advertising another artist or performance. Similarly, if the Act of God forces the venue or presenter to cancel, it is not liable to the artist for the artist’s lost fees or out of pocket costs. However, nothing in the arts is ever that simple! Many people, incorrectly, assume that there is a common understanding or standard of Acts of God and that, in the event of a fire, blizzard, flood, or other unforeseen event, there are automatic protocols which will govern the situation. In fact, you will find that presumptions and assumptions differ wildly when it comes to Acts of God and that people, in the midst of a crisis, tend not be at their most rational. I’ve had presenters argue that poor ticket sales were Acts of God or that the death of an artist’s mother didn’t mean that the artist herself could not perform. I’ve also had an artist claim that an unexpected opportunity to perform at a better venue was an Act of God entitling her to cancel. I even know of a manger who claimed that the failure of his artist to obtain a visa was an Act of God and the artist should still receive her full fee even though she could not legally enter the US!

While no contract can even contemplate every possible scenario, you want your Act of God clause to do more than simply state that “either party can cancel “in the event of an Act of God.” Rather, you want your clause at least to provide some basic definitions and parameters: Let’s assume the venue is open, but the artist cannot get there due to a storm. Does the artist have to reimburse the presenter for any of its lost marketing expenses or costs? If the artist had already received a deposit, does it have to be returned? What if it’s the presenter’s venue is flooded, but the artist is ready, willing, and able to travel and perform? Does the presenter have to make a good faith effort to re-book the artist at a future date? Can the artist keep any deposits or advanced payments to offset the cancellation? Can an artist use an Act of God Force clause to cancel an engagement due to the death or injury of a family member or relative? Can a venue claim an Act of God if it experiences an unexpected budget shortfall or a financial crisis? What if the engagement is for a series of performances and a fire, storm, or flood forces the cancellation of only some of the performances? Is the artist’s engagement fee reduced on a pro-rata basis? What if the artist is a group and a member becomes sick or injured? Does the group have the option to find a replacement or can the venue claim an Act of God and cancel? Does it make a difference if it’s a key member of the group?

As I frequently like to remind everyone, in the arts world nothing is standard and everything is negotiable! Anyone who tells you otherwise, just wants you to do things their way. However, while there is no legally enforceable list of standard protocols or procedures which governs how things are “supposed” to happen in any given crisis, I’d like to believe that relationships are more important than contracts and, ultimately, what you are entitled to may be less important than what you have to offer.

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

Tags:, , , , , , , , , , , , , , , , ,
Posted in Acts of God, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Touring | Comments Closed

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