Archive for the ‘Venues’ Category
Wednesday, November 6th, 2013
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
If I am doing a fee split, am I entitled to the emails of the people who purchase tickets? Our group booked a show at a venue where we are supposed to be getting a portion of the ticket sales. We have asked for the names and email addresses of everyone who purchases a ticket, but the presenter says that this is against the law because it’s the presenter’s confidential, proprietary information. But if people are buying tickets to our shows, why aren’t we entitled to their names and contact info?
Always start with the contract. What does it say? Do you even have one? If the engagement contract states that you are entitled to receive the names and contact information of everyone who purchases a ticket to your performance, then the presenter is contractually required to give it to you. Case closed.
However, assuming that your contract is silent on the subject, then the presenter may be giving you the correct answer, but for the wrong reason. A lot of people toss around the words “confidential” and “proprietary” without really having any idea what they mean. If your interest in having the names and emails is so that you can send out announcements of your future shows (ie: spam), the presenter has a legitimate concern that this may violate the CAN-SPAM Act–which has nothing to do with confidential or proprietary information.
The CAN-SPAM Act is 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.” 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. (The law makes no exceptions for tax-exempt 501(c)(3) organizations.) As a result, any individual or organization that sends a commercial email to someone who has specifically asked not to be contacted, or 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.
Individuals and organizations can also violate the CAN-SPAM Act by providing email addresses and contact information to third parties. Very often presenters and venues collect email information for purposes of contacting patrons to verify ticket purchases or to inform them of cancellations, but these same patrons may “opt-out” of receiving solicitations or commercial emails. If the presenter were to disclose such email addresses to a third party knowing that the third party intends to send unsolicited commercial emails, then the presenter would itself be liable for violating the CAN-SPAM Act.
In this case, if the presenter were to give you the data you want, and you violate the CAN-SPAM act, then the presenter could be liable. However, given their inarticulate basis for refusing your request, I don’t believe for a minute that your presenter is actually even aware of the CAN-SPAM act. More likely than not, your presenter simply doesn’t want you to have the ticket list because the presenter wants the names and emails all to itself to promote its own future seasons, subscriptions, donations, etc. Regardless, the bottom line remains the same: without a contract entitling you to this information, you’re at the mercy of the presenter. When performing at a venue, there is neither an inherent nor implicit right to patron names and addresses just because you are the performer and people purchases tickets to your show.
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For additional information and resources on this and other 
legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:Brian Taylor, commercial messages, contract, Goldstein, Liable, patrons, pr, presenter, sending emails, ticket sales, unsolicited commercial emails, venue
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Presenters, Venues | Comments Closed
Thursday, October 24th, 2013
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder
We recently has a situation where one of our groups showed up at a festival, but just before they were to go on stage, the police shut down the event due to an approaching electrical storm. The presenter had given the group a deposit for 50% prior to the event, but is refusing to pay the balance even though our booking agreements have a specific clause that says that, in the event of cancellation, except for Acts of God, the artist gets the full fee. The presenter signed the agreement. The band showed up and were ready, willing and able to perform. Aren’t they entitled to the full fee? They need this money to cover their costs for flying, driving, and internal costs. Isn’t the presenter supposed to get event insurance to cover these sorts of things?
When you say the band was “ready, willing and able to perform”, are you saying that, had the police not shut down the event, they would have performed anyway? In a lightning storm? Seriously? While I am solidly rooted in the “show must go on” tradition, you’re either representing the industry’s most desperate band or the most reckless—or both. Had lightning struck the stage, injuring either a band member or a member of the audience, the band would have been facing some significant lawsuits and liability for gross negligence.
An “Act of God” is an unexpected event or occurrence that is beyond the control of a party. If a party breaches a contract because of an “Act of God”, then the party is not liable. Concerts cancelled due to severe weather are among the most common “Acts of God.” The fact that, in this case, the police shut down the event as opposed to the actual hand of the almighty descending from the clouds and cancelling the event with a host of celestial trumpets does not change the fact that the presenter did not cause the lightning storm and had no choice but to cancel the event—literally, given that the police ordered the event to be closed. Thus, the presenter is not liable for the cancellation and the band is not entitled to the full fee. In fact, assuming the presenter let the band keep its 50% deposit, the band actually got more than it was entitled to.
As for whether or not the presenter was supposed to get event insurance to cover weather related cancellations, you seem to be under the impression that, had the presenter obtained such insurance, then the band would have been paid its full fee. Not necessarily. Unless your contract obligated the presenter to purchase an insurance policy and name the band as an additional insured, then the presenter’s event cancellation insurance policy would only have covered the presenter’s liabilities and expenses. As the presenter isn’t liable to pay the band its full fee, the insurance policy wouldn’t have paid it either. On the contrary, if the band regularly plays outdoor events and concerts, and wants to “ensure” that it losses are covered in the event a concert is cancelled to due weather, then the band should consider getting its own event cancellation insurance policy. Or you could always just pray.
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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:act of god, acts of god, Agreements, artist, booking agreement, breach, breaches, Brian Taylor, cancellation, cancellations, contract, Festival, Goldstein, insurance, Liable, losses, money
Posted in Acts of God, Agents, Artist Management, Arts Management, Contracts, Insurance, Law and Disorder: Performing Arts Division, Liability, Presenters, Touring, Venues | Comments Closed
Thursday, October 10th, 2013
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder
We booked an artist to perform at our theater, but ticket sales have been much lower than we expected. The show is a month away. We are a small venue with a small budget, and can’t afford to present an artist if we can’t sell enough tickets to cover the costs. We signed an engagement contract, but it doesn’t cover cancellations, unless it’s for illness or weather related. As the contract is silent on this, I offered the agent what I thought was a standard buy-out fee (25% of the total fee), but he is insisting on the full amount. That doesn’t seem fair.
What doesn’t seem fair? That you signed a contract and the agent is expecting you to live up to your end of the bargain? The whole point of a written contract is to memorialize all of the terms, understandings, conditions, and requirements of a business transaction—even if the transaction is in show business. If a party fails to abide by a term, understanding, condition, or requirement of a written contract, then that party has “breached” the contract.
Just like music is a combination of both sounds and silence, terms and requirements that are not part of a written contract are just as important, if not more important, than the ones that are. This is because only terms, understandings, conditions, and requirements that are actually written down are considered to be part of a legally binding contract. So, for example, if an artist wanted to be paid his fee on the night of the performance, but the engagement contract only states the amount of the fee and not when it is to be paid, then the presenter is not obligated to pay the fee on a specific date. Similarly, if an engagement contract doesn’t have a cancellation clause, then there is no right to cancel and neither party can cancel without the consent of the other. This means that, if the artist gets a better offer, she doesn’t have the right to cancel the engagement. However, it also means that you don’t have the right to cancel, either, just because you’re not selling enough tickets.
I frequently hear both agents and presents talk about “industry standards and customs” as a way to resolve contractual disputes or re-negotiate contracts they didn’t bother to read in the first place. Except in rare circumstances, industry standards and customs are completely and utterly irrelevant. Moreover, if you gathered four arts professionals in a room and asked them to describe industry standards and customs on any given topic, you would get four different answers! If a contract fails to address an issue or condition that is important to you, you cannot presume that you get to resolve the silence in your favor and do what you want. Rather, if the contract is silent on a specific issue, then both parties must agree on a resolution of that issue.
In your case, if your venue’s policy is to cancel an engagement if you can’t sell enough tickets, then you need to make sure that this policy is written into every engagement contract you sign. Otherwise, you have no right to do so. If you cancel, and the artist or the artist’s agent doesn’t agree to accept a lesser amount, you are liable to pay the full amount of the engagement fee—so, assuming there are no other cost savings to you in cancelling and still paying the full fee, you might as well let the show go on.
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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:agent, artist, Brian Taylor, cancellation, cancellation clause, cancellations, contract, Contracts, customs, dispute, engagement contract, Goldstein, Liable
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Presenters, Venues | Comments Closed
Wednesday, September 18th, 2013
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder
I work for a venue that engaged an artist for a concert. I agreed to pay for hotel and travel. After the engagement, the artist told me that she decided to stay with friends and drive. I can’t get my money back. Can I deduct my losses from her fee?
No, you cannot under any circumstances deduct these costs from her fee. That would be like agreeing to provide food for an artist backstage and then asking the artist to reimburse you for the left overs.
I realize that times are tough (though, in the performing arts, times have always been tough, so, perhaps I should say that I realize times are tougher), and every penny counts. Certainly, had the artist informed you in a timely manner that she didn’t need the hotel or travel arrangements, you could have cancelled or even saved yourself the time and expense of making the arrangements in the first place. However, presumably, the engagement contract did not require the artist to inform you if she did not require hotel or travel. As a result, these were not “losses”, but, rather, “costs” which you contractually agreed to incur.
I would argue that, from a professional standpoint, the artist or her management should have informed you of the artist’s change of plans regardless of whether or not they were contractually or legally required to do so. However, if you agreed to pay for hotel and travel, then you were contractually obligated to incur these costs. If the artist decided to make her own arrangements and not avail herself of the hotel and travel you provided, that was the artist’s decision to make. Your only obligation was to comply with the terms of the contract, which you did.
In the future, you may want to consider adding a provision to your engagement agreements that, if you agree to incur hotel and travel costs, an artist must inform you in a timely manner if they decide to make their own arrangements and reimburse you if they fail to do so. In addition, should you ever consider re-booking this particular artist in the future, I would expect you to ask for the engagement fee to reflect the unnecessary expenses you incurred…or, at the very least, tell the artist to stay with her friends and drive.
_________________________________________________________________
For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:Agreements, Brian Taylor, contract, Goldstein, losses, timely manner, travel, travel arrangements, travel costs, venue
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Presenters, Touring, Venues | Comments Closed
Wednesday, September 4th, 2013
By Robyn Guilliams
Dear Law & Disorder: Performing Arts Division,
We are a small presenting organization, and we use an outside company to handle our ticket sales. The company provides us with cloud-based software, which we use to process both online and box office ticket sales. We were recently informed by the software company that they’d been hacked! The company told us that all of our patrons’ relevant information may have been compromised, including their credit card information. A lawyer on our board said that we are responsible for notifying all of our patrons of the security breach. Is this true? There are over 8,000 patrons in the system, going back quite a few years! We don’t have the personnel to devote to this type of project. One of the reasons we out-sourced our ticketing was to avoid handling and storing this type of sensitive information. If we don’t handle the credit card information, why are we responsible if that information is stolen?
Oy, what a headache!
Unfortunately, I would guess that the terms of your organization’s contract with the ticketing software company require your organization to notify its patrons in the event of this type of security breach. In fact, the contracts I’ve seen for this type of service require that the presenting organization indemnify the software company in the event of a breach. This means that you are not only responsible for your own legal expenses and damages should one of your patrons suffer a loss as a result of the breach, but you’ll have to pay the software company’s legal expenses and damages as well! And usually, these types of provisions are not negotiable.
In addition, you may want to take a look at the website of the PCI (Payment Card Industry) Security Standards Council, which sets the standards for companies who process credit card transactions (like your ticketing software company.)
See: https://www.pcisecuritystandards.org/faq/
Because your organization doesn’t actually handle or store credit card data, it’s not required to be “PCI Compliant.” However, as stated on this site, “it is the responsibility of the merchant to ensure that the data they share with third parties is properly handled and protected – just because a merchant outsources all payment processing does not mean that the merchant won’t be held responsible by their acquirer or payment brand in the event of an account data compromise.”
The good news here (such as it is) is that most states provide a mechanism for an organization like yours to protect itself in the event a third party credit card processor is hacked. Generally, if you provide timely notice to your patrons of the breach, you can’t be held liable for your patrons’ damages (the theory being that if your patrons know about the breach, they can take steps to protect themselves.) For instance, in New York (and many other states), your organization is protected from liability if you notify your patrons of the security breach “in the most expedient time possible and without unreasonable delay.” The notice can be made in writing, electronically, or by phone.
Also, there are insurance policies that cover this type of cyber liability. These policies usually cover the cost of notifying your patrons, as well as any legal expenses or damages you may have due to the breach.
In short, the volunteer lawyer on your board is correct. (As we don’t often agree with most lawyers, this is a rare occurrence, indeed!) Given the vulnerability of identification fraud and the potential exposure of your organization, you’d be wise to find a way to notify your patrons.
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Brian Goldstein and Robyn Guilliams will be attending the 2013 Midwest Arts Conference in Austin, Texas next week.
Our next blog will be on September 17, 2013.
_________________________________________________________________
For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:box office, brian goldstein, credit card information, credit card transactions, damages, insurance, patrons, Robyn Guilliams, security breach, software company, ticket sales, ticketing software
Posted in Arts Management, Insurance, Law and Disorder: Performing Arts Division, Liability, Non-Profits, Presenters, Venues | Comments Closed
Wednesday, July 24th, 2013
By Robyn Guilliams Dear Law and Disorder, I have been in artist management for a long time, thought I had seen it all, but something just came up for one of my artists that has me completely stumped. My client was sent a 1099 for a hotel stay that the presenter provided for an engagement. Most presenters that I work with pay for the hotels, but never once has the value of that hotel been included on the 1099 that the artist was sent. This particular place is a big resort, they too are the presenter. They often trade rooms for fees (it’s a very exclusive resort!), or they give small fees plus the accommodations (which includes meals), usually for two nights as a perk to the artist. It gets tricky for the artist, because they don’t pay for the hotel, so they have no expense to write off for that income. So that may mean they end up paying tax on that amount, thereby losing money doing this performance. That’s where this goes wrong for the artist, in my opinion. Artists obviously do this gig because of the resort. But, this has left a bad taste. What’s up with issuing the 1099? They say it is an IRS law that says hotel costs are income for the artist. By the way, they don’t tell you this up front…Searching for the Truth Dear Searching for the Truth: The answer to your question depends on the specific facts of the situation. (A lawyer’s favorite answer to every question is – “It depends”!) Generally, if a presenter provides accommodations to an artist as part of the artist’s compensation, the value of the accommodations is NOT considered taxable income to the artist, if the accommodations are reasonable and necessary. For instance, if an artist is travelling from California to New York to play one show, the presenter providing the artist with two nights of hotel accommodations is reasonable and necessary. The value of the hotel accommodations in this instance would not be considered taxable income to the artist, and need not be included on the 1099. On the other hand, if a pianist travels away from home to play a concert and the presenter provides hotel and airfare for the pianist, her husband, her sister, her sister’s next-door neighbor, and the next-door neighbor’s pet monkey, this is not reasonable and necessary. The value of the airfares and accommodations for everyone except the pianist would be considered taxable income and SHOULD be reported to the artist on a 1099. Unfortunately for your artist, there are a few comments in your letter that indicate that the accommodations at the resort exceeded the “reasonable and necessary” standard. You state that the artists at this resort often accept accommodations in lieu of fees, or accept smaller fees plus accommodations. Why would an artist accept no fee, or a substantially smaller fee, if the artist wasn’t receiving something of value (in addition to the hotel room) in return? Plus, you mention that artists “do this gig because of the resort”… and the presenter provides “two nights as a perk to the artist”. Again, the artist is receiving something of value besides the usual hotel accommodations. If an artist is receiving a significant personal benefit from the accommodations besides a place to lay his head after the show (such as the opportunity to enjoy resort amenities or an extra night of accommodations), then the value of the accommodations constitutes taxable income and must be reported. You say that it’s tricky for the artist, because he has no expense to write off his income. But wouldn’t this be the case if he was receiving his usual fee plus a regular, non-resort, hotel room? I’d suggest that in the future, unless your artist understands the taxable “value” of receiving resort accommodations, including the included room service and use of the infinity pool, have him stay at the Motel 6 down the street. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:gig, hotel accommodations, hotel costs, hotel stay, hotels, irs, irs law, Robyn Guilliams, taxable income, travel
Posted in Agents, Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Taxes, Touring, Venues | Comments Closed
Wednesday, June 26th, 2013
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: In all of my artist’s booking contracts, the presenters are required to obtain ASCAP, BMI and SESAC licenses. I recently received a contract back from a venue in which they crossed out that language. They told me that their policy is not to get these licenses and that the artist is responsible for obtaining them. It was my understanding that it was always the venue’s or presenter’s responsibility to obtain the performance licenses from ASCAP, BMI, and SESAC. Am I wrong? You’re not wrong, but you’re not entirely correct either. The truth is that it is the legal responsibility of all parties to make sure that the proper licenses have been obtained for a performance. Which party actually obtains them and who bears the costs is a matter for negotiation. Whether it’s a festival, a school, a nightclub, or a large performing arts center, non-profit or for-profit, it’s the legal responsibility of the owner/operator of a performance space/venue to ensure that the necessary rights and licenses have been obtained with respect to all copyrighted music which is performed at that venue. (Actually, this legal responsibility is not limited to performance rights, but extends to dramatic rights, synchronization rights, broadcast rights, and all other required rights and licenses which pertain to music, images, trademarks, recordings, images, or other protected rights or materials which are used as part of the performance.) However, it’s equally the legal responsibility of the artist, and in some cases, the producer and promoter, to ensure that they have all of the required rights and licenses, including performance licenses from ASCAP, BMI and SESAC. Why? Because if an unlicensed song is performed at a venue, then the US Copyright Act allows all the parties involved in the performance—the artist as well as the venue/presenter, the producer, the promoter, and anyone else involved in the performance—to be sued by the publisher or copyright owner. Stealing a song is like robbing a bank: the entire gang is arrested; regardless of who broke open the safe, who drove the get away car, or who simply served as look out, they all participated in the robbery. I am familiar with many venues which do not want to be burdened with the perceived cost and difficulty of obtaining performance licenses (which, depending upon the specific circumstances, may be neither costly nor particularly difficult), refuse to do so, and insist on the artist obtaining the licenses. However, in my opinion, for reasons I have written about in earlier blogs, this is a foolish policy. In practice, it’s simple easier for venues and presenters to obtain ASCAP, BMI and SESAC licenses than the artist. The venue can purchase a blanket license from each organization that permits all of the music in their catalogs to be performed by any artist at the venue during the license period. These licenses can cover an entire year or just a specific festival or event, and are priced based on numerous factors, including number of performances, ticket prices, size of the venue, etc. With the blanket licenses in place, the artist simply needs to show up. If a venue or presenter prefers not to obtain such licenses, then the artist or performer can certainly do so themselves. However, if no one obtains the licenses, then everyone is liable. Quite simply, whether the venue/presenter requires the artist to obtain the performance licenses or the artist insists that the venue/presenter obtains the performance licenses, passing the responsibility on to another party will not relieve either party from ultimate responsibility if the other party fails to do so. In other words, there is no contract, release, or any other document which will protect you from liability should the necessary licenses not be obtained. This is why, among other reasons, if I operated a venue, I would much rather rely on myself to obtain the licenses than depend upon another party to do so. In your case, if the venue refuses to obtain the ASCAP, BMI or SESAC licenses, then you and your artist have two options: either the artist agrees to obtain the licenses or the artist refuses to perform. Electing to proceed under the expectation that no one will get caught or the publishers and copyright owners will not sue small artists or struggling non-profits is not an option; that’s the same as robbing a bank and hoping the police won’t find you. Not to mention, in an industry where so many purport to operate under the noble purpose of promoting the value of art and artists, I can’t imagine the rationalization of stealing it for any purpose, regardless of how noble. _________________________________________________________________ “Law and Disorder: Performing Arts Division” will be taking a break between July 1 – July 14. Our next post will be on July 17. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:ascap, bmi, Brian Taylor, broadcast rights, contract, Contracts, copyright, Festival, Goldstein, Liable, music, necessary licenses, negotiation, Non-Profits, owner operator, performance license, performance rights, performing arts center, presenter, promoter, proper licenses, sesac, synchronization rights, venue
Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Venues | Comments Closed
Wednesday, June 19th, 2013
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: If I am booking an artist, whose job is it to draft the contract? Some venues ask me to send them my contract, but other venues seem to have their own. What’s the normal practice? Since you asked for the “normal” practice, I shall tell you: the normal practice is that some venues will ask you to send them your contract and other venues will have their own. It all depends on the circumstances and the venue. You should always have a basic engagement contract that you can tailor for each artist and send to a venue who wants your contract. However, you should expect larger venues to prefer to use their own contracts just as most venues understand and expect that major artists will insist on using the artist’s contract. It really doesn’t matter as both parties will need to review the proposed contract and, if necessary, proposed changes, additions, and amendments. Its unrealistic to presume that the venue’s contract will address all the issues important to the artist and that artist’s contract will address all the issues important to the venue. Negotiation is not just about date, time, and fee. Negotiations include ALL of the terms which will be in the final contract. What you want to avoid at all costs is a situation where, in lieu of taking the time to review and negotiate a single contract, the manger or agent just attaches the artist’s contract as a rider to the venue’s contract (or visa versa) and the parties proceed. Almost always the two contracts will have conflicting terms which will operate to negate the entire contract, making neither one legally enforceable. (And, no, it doesn’t help to use a rubber stamp that says “in the event of a conflict, mine governs.” That only benefits the folks who sell rubber stamps.) Even more important, regardless of who goes first, is to never ever ever ever ever send anyone a signed contract at the outset. The contract should be signed only after all parties have had a chance to review, make comments, propose changes, attach riders, and agree upon a final version. Otherwise, the party receiving the signed contract will simply strike out or amend the language they don’t like…or, worse, attach a rider…sign it, and return it…which, legally, constitutes a counter-offer and not an enforceable contract. (Actually, it “could” be enforceable, but this gets into complex legal issues which could all be avoided if everyone just sent one another blank contracts and waited until all issues had been resolved before anyone signed anything!) I realize that it takes time to review, negotiate, and amend every contract. However, that’s what contracts are for. It gives each party a chance to make sure that all important issues have been addressed and that there will be no unstated expectations or assumptions. Contracts are not about enforcement…they are about avoiding conflicts and disappointment. Without question, life would be easier if there were standard contracts and terms that worked for every engagement. However, we work in the arts. Nothing is normal and nothing is customary. If you are looking for consistency, go work in a bank. Otherwise, learn to embrace the chaos. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:agent, amendments, artist, assumptions, Brian Taylor, conflict, contract, Contracts, enforceable contract, engagement contract, fee negotiations, Goldstein, negotiation, venue
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Presenters, Touring, Venues | Comments Closed
Wednesday, June 12th, 2013
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!
Tags:ada, americans with disabilities act, audience members, nonprofit organization, patrons, public accommodations, reasonable accommodation, Robyn Guilliams, sign language interpreter
Posted in Arts Management, For Profits, Law and Disorder: Performing Arts Division, Liability, Non-Profits, Presenters, Venues | Comments Closed
Wednesday, May 29th, 2013
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: I have read your clearly stated articles about mechanical use and rights. What about “fair use”? Aren’t there specific scenarios where permission is not needed to use a recording of someone else’s music? Beware of what you ask. You are about to open a box whereupon a thousand nasties will fly out! Now that you have been duly warned…. Copyright Law gives the owner of a copyright the exclusive right to perform, edit, arrange, or reproduce a protected work in copies or recordings, as well as the exclusive right to authorize others to do so. Anyone who copies, performs, or records a protected work without the copyright owner’s permission, even including small excerpts, is guilty of copyright infringement. Fair Use is a legal doctrine whereby certain usages of a particular work “may” be considered permissible without the copyright owner’s permission, if the purpose for which the work was used is determined to be “fair”, such as criticism, comment, news reporting, teaching, scholarship, research, and parody. As the U.S. Copyright Act is intended, albeit arguably, to afford the maximum protection of copyright owners and the creators of protected works, it does not set forth specific usages that are inherently “fair.” Rather, the analysis and determination of what constitutes Fair Use is left entirely to a judge to decide in her or her sole discretion. In other words, should you decide to use any portion of a protected work without the owner’s permission, you won’t know whether your use is a permissible Fair Use or a prohibited infringement until after the copyright owner files a lawsuit claiming an infringement and everyone goes to court, makes arguments, and the judge decides. The only guidance given by the U.S. Copyright Act is the following four-part test which judges use in making the Fair Use analysis and determining whether or not a particular use is “fair”: (1) the purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. As you may imagine, the application of these factors is both highly fact specific and highly subjective. Any one factor can tip the balance for or against Fair Use. More significantly, just because one judge determines a specific usage to be Fair Use within a specific scenario does not mean that a different judge will determine that a similar usage will be Fair Use in a similar scenario. Determinations can, and do, change from judge to judge. Case law is filled with conflicting examples of recordings where one judge ruled that a specific usage of a melody was a parody (Fair Use) and another judge in another state said a similar use of a different melody was satire (not Fair Use). Similarly, judges have ruled the use of as little as thirty seconds to be an infringement and usage of entire works to be Fair Use. Essentially, this means that Fair Use is an exception, or defense, to a claim of infringement, not a right in and of itself. To be fair, there are many legal scholars who would argue, correctly, that Fair Use is not a mere defense, but is, in fact, an important right that balances copyright law with the First Amendment and that the current system gives far too much power to wealthy copyright owners who can use the mere threat of lawsuits to quash any usage of their works, even usage that might legitimately constitute Fair Use. I don’t necessarily disagree with this position. However, it’s more aspirational than reflective of the current realities that you and I have to deal with. Until Congress comes up with better guidelines (and the likelihood that Congress can “come up” with much of anything these days is slim), we are stuck with the current system and all its inherent flaws and inconsistencies. Despite the distinctions between Fair Use and infringement being uncertain and difficult to define, there are, nonetheless, a few certainties which you can depend upon: There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledgement of the source of the copyrighted material does not constitute Fair Use and is not a substitute for obtaining permission where permission is required. Just because something is used by a non-profit and/or used for “education” does not mean its “fair.” Materials you find on the Internet is neither inherently public domain nor Fair Use. Just because you do not sell anything, does not make your use of someone else’s work Fair Use. At the very least, when determining whether or not using someone else’s work without permission might be Fair Use, take only the smallest amount of a copyrighted work necessary to accomplish your goal of criticism, comment, news reporting, teaching, scholarship, research, and/or parody. As a general rule, the more you take, the less likely your use will be considered “fair.” It is also reasonable to assume that if you are using any part of a copyrighted work for promoting or marketing your services or performances, or your organization’s services or performances, even if no copies are being sold, it probably IS NOT fair use. Of course, the safest course is always to get permission from the copyright owner before using copyrighted material. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:Brian Taylor, copyright, copyright act, copyright infringement, copyright law, creator, Education, excerpts, Goldstein, image, marketing, music, parody, permission, public domain, recording
Posted in Agents, Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Recordings, Venues | Comments Closed
legal and business issues for the performing arts, visit ggartslaw.com