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Responsibility…Its Not Just About Visas

Wednesday, January 30th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law & Disorder:

We are facing a visa problem for one of our Russian singers.  She is supposed to sing in the United States at the end of February with a US Orchestra. Now it turns out that the orchestra is neither willing to apply nor to pay for the visa fees that would be a total of $1800 ($250 for the AGMA union consultation, plus $325 to USCIS, plus another $1,225 to USCIS to have the approval notice expedited) and the artist does not want to pay this big fee for just one engagement of 8 days. The visa petition is ready to be mailed, but now we are wondering if there is a way of reducing the costs. The singer has been to the US many times to perform, and is a member of AGMA. On the top of the visa petition, she will also have to pay $190 for an interview at the US Embassy in Moscow. Would there be a way of getting her a visa without having to pay all these costs (or at least pay less?) Help!

If the singer is a current AGMA member, AGMA may waive its $250 consult fee, but you’ll need to contact AGMA directly to confirm their current policy. Otherwise, sadly, there is no way to reduce the costs you have listed.

USCIS charges a basic filing fee of $325 for standard processing. USCIS standard processing times can vary wildly, and change without notice. USCIS has recently been processing petitions within 3 – 4 weeks of filing, sometimes even sooner. However, if you can’t take the risk, you will, indeed, need to pay an additional fee of $1225 for premium processing in exchange for which USCIS will guarantee to review the visa petition within 15 days of filing. (Remember, “review” does not guarantee “approval.” USCIS can always review the petition and still return it, asking for more evidence or supporting materials.) While there is a process by which you can ask for an “emergency expedite” and waive the premium processing fee, this is reserved for instances of true “emergencies” (ie: an ill performer requires a last minute replacement). Financial hardship won’t qualify as an “emergency.” There is also no mechanism by which to avoid the $190 visa application fee required to be paid to the consulate. (Some consulates charge even more.)

What makes this situation truly unfortunate is that all of this could have been avoided. When a non-US artist is engaged to perform in the US, who will bear the artist’s visa costs, along with who will take responsibility for preparing and filing the artist’s visa petition, is something that can and should be negotiated at the time of the engagement. I encounter far too many situations where artists are booked and, while fees and travel arrangements are discussed at length, no one discusses any of the other details that are critical to a successful engagement—such as visas and tax withholding. Managers too often assume the opera companies, orchestras, or presenters will handle it, the opera companies, orchestras, and presenters assume the managers will handle it, and the artists assume that they are paying a 20% commission for “someone” to handle it so they don’t have to. Remember, there are no industry standards!

While it won’t necessarily help your current dilemma, the solution in the future is quite simple: if you are a manager or agent, no matter how badly you want to book an engagement for your foreign artist, before you do so, confirm with the presenter or venue whether or not the artist already has a visa, will require a visa, and/or who will pay and petition for the visa. If you are an opera company, orchestra, or presenter, no matter how badly you want to book a particular foreign artist, always ask their manager or agent whether or not the artist already has a visa, will require a visa, and/or who will pay and petition for the visa. While you’re at it, you might as well negotiate and confirm everything else, too: licensing, cancellation terms, recording rights, etc. A lot of angst could be avoided if each party in an engagement contract makes it their responsibility to discuss with the other party all contingencies and potential problems that could arise. Avoiding an empty stage and an unhappy artist is everyone’s responsibility.

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WE WILL BE TAKING A BREAK THE WEEK OF FEBRUARY 4 AS WE RELOCATE OUR OFFICES.

OUR NEXT BLOG POST WILL BE ON FEBRUARY 13.

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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, Presenters, Taxes, Touring, Venues, Visas | Comments Closed

Ask, and Ye “May” Receive…or Not

Wednesday, January 9th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder,

I am a music professor at a medium-sized state college. We have two questions with regard to live streaming some of our concerts and recitals. We, of course, have paid the ASCAP and BMI licenses/fees to cover the rights for live performances. I believe the licensing agencies base the amount of the fee on the size of the school, and we pay a flat amount each year. Does paying those licenses for live performances also cover streaming the concert live? Our department chair believes this to be the case.

The other issue involves archiving the recordings of the concerts, or leaving them on the website for a time after the concert so patrons (e.g., parents of students or any other interested parties) can view the concert at a later date if they had a conflict the day of the original concert and were unable to watch it live. Would this practice also be covered by the licenses or fees we’ve already paid? Is this a grey area in which the law has not yet caught up with the technology, or would this practice be a violation of copyright?

I know of other schools whose music departments are streaming performances. Any clarification you could give on this subject would be most helpful not only to us but to many schools throughout the country.

Some ASCAP/BMI licenses for live performances also cover the right to stream the concert live. However, as with all rights, you only get what you ask and/or pay for. So, if you paid for the right to stream live concerts, then your license covers that. If you only paid for live concerts, then it does not. You need to check the license terms and agreement you received from ASCAP/BMI.

With regard to the issue of “archiving the recordings of the concerts”, the good news is that it is not a grey area at all. The bad news is that it is not a grey area at all. ASCAP/BMI licenses only cover live performances and, in some instances, streaming a live performance. However, making an audio/visual recording of a concert to be seen or heard at a later a date or…gasp…placed on a website for the whole world to access, is quite another. Such rights are called “synchronization rights” and they must be arranged separately. When you purchase the right to perform music at a live concert, there is no “inherent right” to make an archival recording or a recording for “non-commercial” purposes. There is no “inherent right” to make a recording of any performance at any time under any circumstances without the permission of (a) the composer/publisher of the music (assuming the composition is not in the public domain) and (b) the performers themselves.

As opposed to the law not catching up with technology, this is more of an issue where the performing arts industry has not caught up with the law. I, too, know of many schools and non-profits that regularly make archival recordings and stream concerts. While some of these are licensed, many are not. There is a common misperception that, so long as something is used for educational purposes or no money is charged, then no licenses or permission is required. Nothing could be further from the truth. While many composers and publishers are happy to grant liberal permission, or even turn a blind eye to unauthorized used, others are not. It’s anyone’s guess as to which one you’re dealing with until it’s too late. The safest rule of thumb is: never assume you have permission to do anything you haven’t specifically asked for. Always ask permission. It protects artists, protects your institution, and perpetuates the value of the arts.

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Both Robyn Guilliams and Brian Taylor Goldstein will be attending the Association of Performing Arts Presenters Annual Conference in New York, providing both workshops and consultations. Please stop by the 4th Floor of the Hilton and say hello!

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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 Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Recordings | Comments Closed

Silence Is Not Golden!

Wednesday, December 5th, 2012

By 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.

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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, Touring | Comments Closed

They Can’t Do That To Me!

Tuesday, October 9th, 2012

By 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.

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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, Non-Profits, Presenters, Venues | Comments Closed

Smile, You’re On Candid Camera!

Tuesday, September 11th, 2012

By Brian Taylor Goldstein

THIS WEEK’S BLOG IS BEING WRITTEN FROM THE MIDWEST ARTS CONFERENCE IN GRAND RAPIDS, MICHIGAN WHERE ROBYN AND I ARE TEACHING SEMINARS AND WORKSHOPS. HERE’S A SHOUT OUT TO THE INCREDIBLE STAFF AT ARTS MIDWEST!! And now back to our regularly scheduled blog…

We re-booked a popular classical artist to perform at our venue. In promoting the concert, we used a photograph of the artist that one of our staff took the last time the artist performed here. Then we got a nasty phone call from the artist’s manager saying that we could only use “approved” photographs. Is this true? Since we took the photograph in the first place, don’t we own it?

Personally, without some significant costuming and airbrushing available, I hate having my photograph taken. Fortunately, I’m not a public figure who needs to attract audiences or sell albums. However, for those who are, there’s a reason agents and managers want to control what images are used to promote their artists: not everyone looks good in a candid photo. And it’s not merely a question of vanity. Singers and musicians often contort themselves into considerably unnatural—and unappealing—positions to achieve just the right note or sound. How an artist looks during a performance, or even in candid shots taken backstage after a performance or during a donor reception, doesn’t necessarily reflect how the artist wants to be seen professionally. And that’s really the point. At the end of the day, it’s the artist’s decision, not yours.

Just because you took the photograph, doesn’t mean you have the right to use it. Legally, there are two sets of rights inherent in every photograph: the rights of the photographer and the rights of the person being photographed. In order to use a photograph for commercial purposes (which includes marketing and publicity), you need to have permission from both. Most booking contracts require the manager or agent to approve all photographs precisely so that the artist can control their publicity and image, but even if the contract doesn’t require this, you still have no right to use anyone’s image for publicity or marketing without their permission.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Non-Profit and Tax-exempt: What’s In a Name?

Wednesday, August 29th, 2012

By Robyn Guilliams

What is the difference between a “non-profit” organization and a “tax-exempt” organization?  I hear these terms used interchangeably – do they mean the same thing?

Great question!  These terms do not mean the same thing.  All tax-exempt organizations are non-profits; however, not all non-profits are tax exempt.

When an organization wishes to be classified as “non-profit”, it must register with a state – usually the state in which it operates.  Every state has different classifications for non-profit organizations.  For instance, New York and some other states have a type of business classified as a “Not-For-Profit Corporation.”  Other states have corporations that are classified as “Non Stock Corporations.”  What all of these corporations have in common is that they do not have any owner, and the business of the organization is run by a board of directors.

Once an organization formally registers as a non-profit company with the state, the organization can request federal tax-exempt status with the Internal Revenue Service.  If granted tax-exempt status by the IRS, an organization will not have to pay federal taxes on its income (provided that income is related to the organization’s “charitable mission”), and donations made to the organization generally will be tax deductible for the donor.

States often have additional requirements for organizations to qualify for tax-exempt status.  Some states will grant tax-exempt status automatically to organizations that have been granted federal tax-exempt status, while others require the organization to complete a separate request.

Some businesses elect to become non-profits without also being tax exempt. They do so for many strategic, marketing, and organizational reasons. However, the important take-away here is that not all non-profits are tax exempt. A tax exempt non-profit is subject to far greater government oversight and operational restrictions than a regular non-profit. Unless a non-profit organization is granted tax exempt status by the IRS, that organization is subject to the same tax and filing obligations as any other business!

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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 Arts Management, For Profits, Law and Disorder: Performing Arts Division, Non-Profits, Presenters, Taxes, Venues | Comments Closed

Can I Cancel If They Perform In My Backyard?

Wednesday, August 22nd, 2012

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Am I Obligated To Accept Unsolicited Emails from Managers?

Wednesday, May 23rd, 2012

By Brian Taylor Goldstein

Dear FTM Arts Law:

I am the executive director of a well-established regional symphony orchestra. As with most orchestras, I frequently receive emails from managers and agents asking me to consider their artists. After a number of emails from the same manager all within the same week, I wrote and told them that I was aware of their roster and asked to be removed from their email list. He wrote back and said that because our orchestra was a 501(c)(3) and also received state funding, we were obligated by law to accept his emails. He also said that because we were non-profit, these were not “commercial” emails and we had no right to refuse his emails. Is this true?

First, someone needs to remind this manager that desperation is never a good sales technique! No, in addition to being generally obnoxious, the manager is wrong on every possible level upon which there is to be wrong in this instance.

The law the manager is attempting to reference is the CAN-SPAM act, a federal law that governs the sending of unsolicited commercial emails. This law states that anyone who receives an unsolicited commercial email has the right to request that he or she be removed from future mailings and places a number specific requirements on those who send such emails, including requiring the sender to provide an opt-out mechanism, a physical address, and to remove anyone who requests to be removed from the mailing list. It covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” The law makes no exceptions for tax-exempt 501(c)(3) organizations. Under the CAN-SPAM act, anytime you ask someone to “buy” something or spend money, its considered “commercial.” Sending emails to promote an artist or an ensemble is just as “commercial” as sending emails soliciting donations or promoting a concert, a fundraising event, or any program where tickets are sold. As a result, any organization, for profit or non-profit, that sends such emails and fails to provide an opt-out mechanism and/or to remove someone from its email list upon request can be prosecuted for violating CAN-SPAM.

In your situation, you are the recipient of an unsolicited commercial email. The fact that you are a 501(c)(3) organization or an organization that receives public funds doesn’t alter the fact that the manager sent you an unsolicited email asking you to engage or hire an artist…and that makes it an unsolicited “commercial” email. Thus, in this case, the CAN-SPAM act protects you, not the manager, and you have every right to demand that you be removed from the manager’s email list. If he fails to comply with your request, the manager would be in violation of the CAN-SPAM act and you could report him to the Federal Trade Commission…or, at least, you would have every right to avoid his booth at APAP!

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Agents, Artist Management, Law and Disorder: Performing Arts Division, Liability, Non-Profits, Presenters | Comments Closed

Do We Need ASCAP/BMI Licenses?

Wednesday, April 18th, 2012

By Brian Taylor Goldstein

Hello Law and Disorder,

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

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

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

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

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

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

_____________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Can I Fire My Board Members?

Wednesday, April 11th, 2012

By Brian Taylor Goldstein

Dear Law and Disorder:

Many years ago I founded a successful non-profit dance company. Over the years, we have continued to grow by adding board members, increasing donations, and critically acclaimed performances. However, my current board has become too invasive. In the past, I have always given them reports about the upcoming season, plans, new artists, etc, and they have focused on fundraising. As the founder and artistic director, it has always been clear that I was always in charge. Now, some of the newer board members are starting to demand financial reports and budgetary control. The new board chair recently wanted to be involved in interviewing a new development director I wanted to hire! My understanding has always been that the legal role of the board was only to raise money. How do I stop this situation before it gets worse? Is this something I can address in the by-laws? Can I fire the board members? What are my legal options?

 

First, and foremost, congratulations! Clearly, under your leadership, you have created a viable and sustainable organization for which you deserve an extraordinary amount of credit. For the purposes of your question, I am going to presume your non-profit has also been approved for 501(c)(3) tax-exempt status by the IRS. This is important because not all non-profit organizations are also tax exempt. A non-profit organization, like its for-profit cousin, can organize and operate in whatever manner its founder or owners decide—subject only to whatever restrictions may be imposed by the law of the state in which it is formed. However, a non-profit which has also applied and been granted tax-exempt status under 501(c)(3) of the Internal Revenue Code must operate under very specific guidelines in order to maintain its tax-exempt status.

In applying for and receiving 501(c)(3) tax-exempt status, the founders of the non-profit are striking a grand bargain with the IRS pursuant to which, in exchange for permitting donations to the organization to be deductible and exempting the organization from having to pay taxes on its income, the founder must forfeit sole control and ownership. Like a scene from a Dickensian novel, once a non-profit organization applies for and receives 501(c)(3) status, its founder abandons the organization on the steps of society. It becomes an “orphan” whose care and welfare is left to the community. The community is represented by the board of directors, which is then charged with overseeing the management and operations of the tax-exempt non-profit to ensure that it continues to serve its mission and tax-exempt purposes. The artistic director and founder can—and, in my opinion, should—serve on the board of directors, but the organization is no longer owned by anyone. In short, it is not “your” organization. It is not anyone’s organization. It belongs to the community and, as such, the authority and control of the organization rests solely in the board of directors.

In your situation, it sounds as if your board is transitioning from a culture where you have understandably been given much deference to one where the board wants to assert more control and oversight. While I understand that this can be frustrating in many respects, it can also offer many positive opportunities for growth and sustainability. A healthy tax-exempt organization requires a constant exchange of expertise and experience between the board members, administration, and artistic leaders who must in turn balance many competing considerations in carrying out the organization’s mission: art and business; emotion and practicality; innovation and tradition. Even in a situation where an organization’s founder might be perceived as the best person to arbitrate such things, the organization’s by-laws cannot legally bestow upon any one individual—the founder, the board chairman, the artistic director—sole control and authority. Unless the board has some degree of meaningful control and oversight authority, not only does the organization risk losing its 501(c)(3) status, but also jeopardizes its relevancy and viability as a community institution. On the other hand, while the board needs to have control over major decisions—such as the hiring and firing of the artistic director or whether or not to raise funds for a new production—if the board asserts too much control, it risks losing its artistic legitimacy. The surest path to artistic disaster is to allow a board of well-meaning attorneys, business leaders, and wealthy patrons to dictate casting, programming, or other similar artistic decisions. These are extraordinarily difficult and perilous paths to navigate, to be sure, and are littered with organizations who, in either failing to address these issues correctly or ignoring them completely, have fallen into the abyss of bitter feelings, splintered boards, burned out staff, depleted endowments, and even bankruptcy.

Rather than looking for a means to assert—or maintain—absolute control, it sounds as if the time has come for you and your board to evaluate the organization’s operations and structure. Among other things, does your organization have the right balance of wealth and wisdom, both financial and artistic, on its board? Is there a plan should you, as artistic director, want to retire or take a less active role? What if an overly-aggressive board chair presents itself? How are decisions made? Now is the time to reflect not just upon your by-laws, but the policies, strategies, and procedures necessary to ensure a healthy balance that can sustain the future of the organization you have nurtured this far.

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

Tags:, , , , , , , ,
Posted in Arts Management, For Profits, Law and Disorder: Performing Arts Division, Non-Profits, Presenters | Comments Closed

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