By Robyn Guilliams Dear Law and Disorder, I run a small nonprofit presenting organization. We recently received an email from a patron who wanted to attend a particular performance, and he asked if we provide accommodations for the deaf. He indicated that either an American Sign Language interpreter or some sort of close captioning system would suffice. We responded and told him that we did not provide those sorts of accommodations because we can’t afford it. We suggested that he reserve a seat towards the front of the venue to enhance his ability to see the performance without any interference. He then wrote back, stating that he was making a request for a reasonable accommodation under the Americans with Disabilities Act and asking that we respond with accommodation specifications within 48 hours. I don’t believe that this is a reasonable request for a nonprofit organization. We don’t have the capability for close captioning, and we would be required to spend $500 to $800 on a sign interpreter. How should I respond?? You should respond that your organization would be happy to provide a sign interpreter for this gentleman! The Americans with Disabilities Act (“ADA”) requires that all “public accommodations” – that is, virtually any facility that is open to the public – provide auxiliary aids and services to ensure effective communication access to their deaf and hearing-impaired patrons and customers. This applies to for-profit businesses and nonprofits, both large and small! For a theater or other performing arts venue, the most appropriate auxiliary aids usually are sign language interpreters and real-time close captioning devices. The idea behind the ADA is to ensure that no one with a disability is excluded, denied services, segregated or otherwise treated differently than others because of barriers or the absence of auxiliary aids. While the cost of a sign interpreter may seem daunting to small organizations, consider it a cost of doing business (yes, nonprofits – you are “doing business” by presenting performing arts presentations to the public!) and factor that cost into your budget. The ADA does provide an exception to the auxiliary aids requirement if providing these aids would result in an “undue burden” (i.e., “significant difficulty or expense”) to the business. However, this “burden” must be truly significant for the exception to apply. Must every venue install high-tech close-captioning technology to accommodate the deaf and hearing impaired? No. Nor must a venue hire an ASL interpreter for every performance. A patron who arrives at a performance and demands an auxiliary aid with no advance notice may be out of luck. However, when a patron makes a timely request for a sign language interpreter, the venue must make its best efforts to fulfill that request. A few other notes to keep in mind: The “reasonable accommodations” (e.g., the sign language interpreter) must be paid for by the place of public accommodation. The costs cannot be passed on to the individual with a disability! A place of public accommodation must provide services in an “integrated” setting. This means that the deaf or hearing-impaired patron cannot be excluded from enjoying a performance along with the rest of the audience. As an example, it’s not acceptable to set up a close-captioned television feed in an area separate and apart from where the performance is happening. If close-captioning is offered, it must allow the hearing-impaired patron to enjoy the performance in the same space as the rest of the audience. The deaf or hearing-impaired patron has the choice of which accommodation best fits his or her communication needs; however, an equally effective substitute may be provided if the original request is unreasonable or unfillable. In theory, the ADA codifies what should already be pervasive throughout the performing arts: an embrace of inclusivity. More practically, whether or not you agree with the ADA, the cost of ADA compliance is far less than the costs of non-compliance, which can be excessive. There are grants and foundations which may available to help you offset the costs of accommodating your disabled patrons. This may also be a good time to use this occasion to review your ADA policies and procedures, including how your staff and volunteers respond to ADA compliance requests and patrons with special needs. An insensitive response can send an embarrassed or angry patron directly to an attorney. As with any issue, it’s always easier to address problems and complaints before they arise. ________________________________________________________________ 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!
Archive for the ‘Liability’ Category
Accommodating Audience Members
Wednesday, June 12th, 2013Independent Contractors or Employees: What’s In A Name?
Wednesday, April 3rd, 2013By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
I hire musicians to perform, with me. Are they employees or independent contractors? I do not deduct taxes from what I pay them. Should I also make them sign a contract stating that they are independent contractors?
Contrary to what many believe, the distinction between who is an independent contractor as opposed to an employee is not as simple as merely making them responsible for their own taxes (and issuing them a 1099) or making them sign a contract or other document in which they affirm that they are an independent contractor. Like many legal relationships in the arts, “titles”, while not entirely irrelevant, do not in and of themselves carry any legal significance. Instead, determining whether a hired musician (or anyone you hire to provide services for you) is an employee or an independent contract requires an analysis of both state and federal regulations.
A person is an independent contractor only when free from control and direction in the performance of their services. As independent contractors are not covered by unemployment insurance laws, labor standards, or safety and health regulations, each state, as well as the federal government, have established various “factors” concerning the nature of the relationship between the parties which are used to determine whether or not a person is an employee or an independent contractor. These factors include how a person is paid, the amount of control you have over them, where their services are performed, how their services are performed, whether or not they are part-time or full-time, and even whether or not the person you are hiring is “incorporated” as a business or merely uses a “dba” and is a sole proprietor. All factors concerning the relationship between the two parties must be taken into consideration. No one single factor is controlling, nor do all factors need to be present to establish the nature of the relationship.
Not surprisingly, the “factors” can differ from state-to-state, with some states applying a more liberal analysis than others. Whereas, in some states, its almost impossible for anyone to hire an individual as an independent contractor unless the individual is incorporated as a C-corporation, S-corporation, or a limited liability company, other states afford more discretion to the employer to determine how to classify the people they hire. And the federal government has its own set of factors and guidelines. As a result, its not uncommon for the same person to be classified as an independent contractor for federal purposes (IRS, US Department of Labor, etc.) and an employee for purposes of state unemployment law and state taxes.
While all the various factors must be considered, in almost all cases the most significant factor is whether the party contracting for the services exercises, or has the right to exercise, supervision, direction or control over someone they hire. In the case of musicians and other performers: do you hire them to show up and perform their own music in whatever manner they want? Or do you direct them? Do you require them to attend rehearsals? Can they wear whatever they want or do you require specific costumes or clothing? In general, musicians or other performers who are paid to perform and are told/directed what to perform, how to perform it, where to perform, and what to wear are almost always considered “employees”, if not by the federal government, then by most state governments.
The only way to answer your specific question is to apply the applicable state and federal factors and guidelines to your specific circumstances. However, the New York State Department of Labor actually has specific guidelines and factors for determining whether performers are employees or independent contractors. You can find them at http://www.labor.ny.gov/formsdocs/ui/ia318.17.pdf Whether or not you are in New York, this is a good place to start.
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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!
Does God Serve On Their Board?
Wednesday, March 20th, 2013By 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!
You’re Not the Boss of Me!
Wednesday, February 20th, 2013By 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!
Silence Is Not Golden!
Wednesday, December 5th, 2012By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
Help! We are a small agency. We booked an engagement for one of our artists at a venue that has now cancelled the date. We had a series of emails with the venue confirming the date and fee and then sent them a formal contract that was never returned. We followed up with more emails confirming the date and asking for the contract to be signed and returned, but they never did. The venue is now claiming that because they never signed and returned the contract, they were never obligated to do the show. Are they correct? Don’t the emails count for anything? How to we keep this from happening in the future?
When it comes to contracts, silence is never golden. If you sent a contract and it was never signed and returned, that should have been a huge red flag or at least an implicit sign that read: “Stop! Go no further! Abandon all hope ye who enter here!”
If you have a series of emails confirming the engagement, and you can show that you relied on those emails by reserving the date and by turning away other bookings for that date and you can show that the venue knew you were relying and never stopped you, then, legally, you may be able to establish that there was an implicit contractual relationship. But that’s only going to get you so far! If the venue still refuses to honor the engagement or re-book or pay a reasonable cancellation fee, then you’re going to have to decide whether or not its worth pursuing a claim by filing a lawsuit.
And, of course, it all depends on what your emails actually say. Often, I’ve seen a chain of emails between a venue and agent that confirms the engagement date and fee, but ends with the agent writing something like: “Great. So we’re all set. I’ll get a contract out to you right away.” Such language can be legally construed as making the entire deal contingent on the contract. And if the contract contains additional terms and requirements that were never previously discussed, then, the contract will be legally construed as a “counter-offer”, which the venue can then refuse.
If you’re taking the time to send out contracts, then you need to make sure they are signed and returned—and, if they are not, assume the engagement is cancelled, re-book the date and move on. I realize that the realities of time and other logistics can make babysitting contracts difficult. There are many times when situations will demand that you proceed without a signed contract. However, when you choose to do so, know that you are assuming the risk. If there is a breach or cancellation, you can’t then go back and seek the protection of a contract you never followed up on or enforce terms that were never agreed upon.
Even when you have a signed contract, there’s no guarantee that the other party won’t breach it. Contracts are not self-enforcing. They merely give you the right to go into court and present a strong argument that you are entitled to damages. More importantly, they give both parties the opportunity to share concerns and expectations and access risks and challenges to the relationship. If things do go badly, the contract is a tool through which you can make an argument. For certain, it’s not the only tool, but I’d much rather pound a nail with a hammer than my head.
_________________________________________________________________
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!
Can We Loan Sheet Music?
Wednesday, November 28th, 2012By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
May we loan music that we own for orchestral performances by other non-profit organizations (schools, community orchestras, etc? Would the other group still need to obtain performing/recording permissions? Could we be liable if they don’t?
It depends how define “own.” If by “own”, you mean that you purchased the sheet music, then, yes, you can loan it or give it to whomever you want. It’s like purchasing a book or CD: when you’re done reading it or listening to it, you can loan it to a friend, donate it to a library, or even re-sell it. You just can’t copy it, perform it, or record it—and neither can the organization you loan it to.
Ownership of a physical copy of books, sheet music, CDs, or other copyrightable material is not the same thing as owning the copyright. Owning a physical copy merely gives you the right to physically possess it—or give it away—not do anything else or convey any other rights. So, if you’ve purchased the sheet music and you loan or give it to another organization, regardless of whether or not the other organization is a non-profit or for-profit, they will still have to obtain the necessary rights if they want to perform or record it. Should they fail to do so, they will be liable for copyright infringement, not you.
If, on the other hand, you have merely “licensed” or “rented” the sheet music, then you cannot loan or give it to anyone else. That would be like sub-letting an apartment without permission. When you license or rent, its just for you.
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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!
Does Original Music Exist Anymore?
Wednesday, November 21st, 2012By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
I have a small venue. All 3 licensing companies are claiming I need to pay them for my karaoke and music that occurs weekly, but the bands that I have sign contracts making sure they only play their original music, nothing copyrighted. These companies have been strong-arming me with threats that there’s no such thing as original music anymore and that I must pay or I will be heavily fined. Is this true and, if so, is there blanket licensing that I may acquire for all 3?
Well, if there’s “no such thing as original music anymore”, that’s news to me and, I suspect, the thousands of composers out there!
If you require your bands to perform only original music that they composed themselves, then you do not need to obtain performance licenses from ASCAP, BMI or SESAC. The bands can give you all the permissions you need. However, if the bands breach their contract by “sneaking in” a few covers and performing music written by other bands or artists, then you would be liable for not having the proper performance licenses in place. (The band would be liable, too—for both breach of contract AND copyright infringement—but the performing rights organizations are more likely to go after you than the band.)
The karaoke is another matter. Karaoke machines, like jukeboxes, require licenses to be used in public venues such as yours. If you are featuring weekly karaoke nights, then you definitely must obtain karaoke licenses. The good news, such as it is, is that you can, indeed, obtain blanket karaoke licenses from each of the three performing rights organizations. The licenses will be based on the size and income of your venue.
Thanks for writing…and thanks to all of you who have written in, supported our blog, and asked great questions! Keem ‘em coming! Happy Thanksgiving!
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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!
They Can’t Do That To Me!
Tuesday, October 9th, 2012By Brian Taylor Goldstein
I just got a notice that a venue where I booked one of my artists is closing. I have a written engagement contract that was signed by the venue over a year ago. The notice I received says that they have run out of money and are cancelling their season. Can they do that? Do I have a valid claim? Should I file a lawsuit? Can I alert the media? How do I send a message to other venues not to do this?
Assuming you have a valid, enforceable contract with no cancellation clause or other termination provision, then the venue had no legal right to cancel regardless of their financial situation and the venue is in breach of the engagement contract. The question is whether or not your claim is worth pursuing…or, assuming that you were acting as an agent on behalf of your artists, whether or not your artists have a claim worth pursuing.
The first course of action would be to send the venue a letter notifying it that it is in breach and will be liable for damages if you are unable to re-book the date. Then, you must make every effort to re-book the date and minimize (aka “mitigate”) damages. As a matter of contract law, your artists are not automatically entitled to the full engagement fee. Rather, if you were to re-book the date for a smaller engagement fee, your artists would be entitled to the difference. If you were to re-book the date and obtain a higher fee, your artists would not be entitled to any damages at all. Even if you are unable to re-book the date, you must be able to show that you made every effort to do so and made every effort to minimize any other losses or out-of-pocket expenses. (ie: Can you cancel or get a refund for any travel expenses? Are they any production or crew costs you can avoid if the engagement is cancelled?)
To enforce your claim, you would need to file a lawsuit. Depending upon the terms of your contract, you may be able to file the suit where you are located or where the venue is located. However, any judgment outside of the state where the venue is located would be unenforceable unless you took the judgment into a court in the venue’s state and had it recognized by that state. Regardless, getting a judgment does not mean that you will get any money. It just means you are legally entitled to money. With the judgment in hand, you would still need to “collect.” Collection would involve more court proceedings in order to levy bank accounts and attach assets. All of this would need to be done in the state where the assets are located. Also, unless your contract provides for court costs and attorneys fees, those would not be recoverable. Ultimately, whether or not you want to file a lawsuit depends on the amount of your damages and whether the time and costs of pursing the claim outweigh the likelihood of collection. Unless the venue actually owned its own performance space or has other assets to draw from, it can be near impossible to see any actual money. If the venue has no assets or files for bankruptcy, then you would get nothing…or next to nothing.
Your more immediate and practical course of action, aside from making every effort to re-book the date and mitigate damages, may be to notify the venue of your claim and then wait. The statue of limitations for a written contract varies from state-to-state, but, in most instances, you will have from 3 to 6 years to file a lawsuit. If the venue is able to re-organize and re-open before the statute-of-limitations runs out, you could revisit the matter and, if they refuse to pay or otherwise agree to a reasonable settlement, still file your lawsuit. On the other hand, if the non-profit ultimately closes, and it turns out that there are assets to distribute, they will need to seek a court approval of the distribution. You can file a creditor claim and stand in line with their other creditors at that time.
This is may also be a good opportunity to review your engagement contract. As you can see, a lot of your options in these situations depend on the enforcement tools you give yourself in your contract. Do you require non-refundable or forfeitable deposits? Are there specific liability provisions? Interest? Attorneys fees?
As for alerting the media, I realize the venue’s actions appear outrageous, unprofessional, and unethical. Nonetheless, without knowing more about the specific circumstances of this particular venue and what has led to their decision to cancel, “going public” could easily backfire on you as well as your artists. Resist the urge to go on a crusade. They are rarely successful and everyone dies. As for sending a warning to other venues, I seriously doubt most non-profits need to be reminded that contractual breaches, lawsuits, and dissolution of assets are not effective strategic plans.
__________________________________________________________________
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!
Can I Cancel If They Perform In My Backyard?
Wednesday, August 22nd, 2012By Brian Taylor Goldstein
Dear Law & Disorder:
After we booked an artist, the artist’s agent booked them to perform two weeks later at another venue 25 miles away from us. It’s a smaller venue that charges less for tickets than we do. This will impact our sales. Can we cancel? I was told that exclusivity was industry standard.
Was there a booking contract? What did it say? If the contract provided your venue with a period of exclusivity or restrictions on when and where the artist could perform before or after your engagement, then the artist might be in breach of the contract. (Remember, unless the agent is acting as a producer, your contract is between you and the artist.) On the other hand, if there was no booking agreement or if the booking agreement didn’t provide you with any period of exclusivity or restrictions, then you probably would not have the right to cancel. If you fail to negotiate something (a commission rate, cancellation terms, licensing rights, etc.) “industry standard” will not provide the missing terms. Unvoiced assumptions and expectations do not become contractual arguments. To the contrary, if you fail to negotiate something, the missing terms remain missing and unenforceable.
I’ve said it before, but it always bears repeating: there is no such thing as “industry standard”—least of all in the performing arts industry. In this case, in my personal opinion, I would certainly consider it unprofessional for either an artist or an agent to intentionally book an engagement that directly competes with an already booked engagement, and I suspect I am not alone in that perspective. However, I also suspect it would be far from easy to obtain a consensus as to whether or not a smaller venue 25 miles away necessarily constitutes a “competing venue.” Regardless, contractual terms are not written by majority opinion. Neither “common industry practice” nor my own personal opinions rise to the level of contractual obligations. Without a contractual requirement specifically prohibiting the artist from performing within two weeks at another venue 25 miles away from you, you would be the one in breach of the contract should you decide to cancel for that reason alone. It would also be equally inappropriate for you to coerce or otherwise suggest that the artist breach his or her contract with the other venue in order to accommodate your concerns.
My advice would be for all parties concerned to consider an appropriate adjustment of some kind. Perhaps there is still time for one of the dates to be moved, or there can be a reduced engagement fee, or even a joint marketing strategy. Assuming that this was an unanticipated outcome by all of the parties, the primary objective at this point needs to be to preserve the relationships between the parties and find a way for both engagements at both venues to continue as planned.
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