Archive for the ‘Venues’ Category

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Board Term Limits–The Kindest Cut of All?

Wednesday, May 15th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We are a small non-profit that runs a performing arts center. In up dating our by-laws, its been recommended that we establish term limits for our directors and officers, as well as a formal nominating committee. Do we really need such formalities? We’re very small and don’t have any other committees. Can’t the board itself select its own members and officers? And it seems a mistake to force directors to leave when they are willing to continue to serve on our board. What do you recommend to your clients?

While I am a strong advocate of fixed terms, I never recommend term limits for board members. Why? Because among the most challenging aspects of running a successful non-profit is finding and keeping healthy board members who, whether through wealth, work, or wisdom (or a rare combination of all three), contribute to the success and productivity of the organization. Once you are lucky enough to find then, the last thing you want to do is force them to leave! However, at the same time, you need to have a mechanism through which malignant board members can be removed. Such members, if left to metastasize, can quickly chase all the healthy ones away, burn out the staff, and poison the entire operation. Fixed terms without term limits provide you with the best of both worlds.

Let’s say, for example, that the by-laws provide that each board member serves a term of 2 years. At the end of each board member’s term, the nominating committee is required to review the board member and recommend either that the board member be invited to serve another term or be invited to exit. By having terms, but no term limits, there is no limit to how many terms a board member can serve, but there is also a fixed time after which every board member’s service can be reviewed. While you can pick any term length you want, I usually recommend no longer than 2 – 3 year terms for board membership. (Anything longer and you start losing the effectiveness of early detection and prevention!) There are also ways to stagger terms so that not everyone on the board is up for renewal at the same time.

Term limits for officers, on the other hand, can be more appropriate. Why? Because with no term limit, even a beloved president or board chair can quickly become a feared dictator that no one wants to cross, or, just as worse, a benevolent, but ineffective leader who spurns all attempts at growth or change. At the end of the president’s term, he or she can still serve on the board, but no longer gets to wield the mace of supreme authority. Also, in my experience, I have also found that the people you most want to serve as board president or chair will be those who do not want to serve more than a year whereas those you want to avoid are those who are looking for a life-time appointment.

As for whether or not you need to have a formal nominating committee, its a recommended practice to have the formality of a separate nominating committee—if not at first, then certainly as your board gets bigger. The nominating committee does not make the actual decisions, but, rather, makes recommendations to the board of whether or not to ask existing board members to renew their terms, as well as reviews and makes recommendations for the nomination of new board members. While the board is always able to accept or decline such recommendations, having a nominating committee allows a forum for such discussions to be “hashed out” other than in a full board meeting. This has the advantage of avoiding potentially awkward situations. First, imagine a scenario where a board member has nominated a “close friend” to serve on the board, but who may not be a good choice for the board. Having such a frank discussion is easier “in committee” than in the presence of the board member. Similarly, when reviewing the renewal of existing board members, its usually easier to have a more open and honest assessment, including key staff input, without having the entire board present. Like all committee work, its also a more efficient use of the board’s time to have committees make recommendations and reports rather than bog down the entire board with every decision. Lastly, a separate nominating committee can potentially prevent a small board from evolving into a dictatorship where only a few members dominate everything.

By-laws, like strategic plans and business plans, are not commandments fixed in stone, but, rather, should be approached as living, breathing, and malleable tools that provide structure as well as flexibility. When thinking of by-laws, you not only need to think of current operations, but creating mechanisms for growth. Even though your board may now be small, you want think big. Similarly, even though your board may currently be one big happy family, you want to think of the future when, like all families, everyone inevitably starts to get one everyone else’s nerves.

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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, Law and Disorder: Performing Arts Division, Non-Profits, Venues | Comments Closed

When To Negotiate A Contract

Tuesday, April 30th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

A successful duo I represent has recorded a CD which is being released by a record company. Although the artist made attempts to obtain a contract, because of time restraints, according to the record company, it was only possible to give a contract AFTER the recording was made. The terms include exclusivity universally for several-year options, and although the company paid for the recording and manufacture of the cd, these costs will come out of the royalties.  The company controls the cd universally with power of attorney from the artists. To obtain copies, the artists buy the cd at a reduced price.  The company insists these are normal terms which are standard practice and always given after the recording is made.  This is news to me.  Can this be true?

In my ideal world, among other things on my wish list, every artist, manager, agent, presenter, producer, arts lawyer, and arts administrator would have a sign above their desks stating: “Nothing is Standard!” While it is true that there are many terms and practices which are more common than others and while it is also true that certain financial arrangements and commitments will necessarily lend themselves to certain expectations in return, everything is negotiable. This does not, of course, mean that you will get everything you want. Rather, depending on the negotiating strengths of the parties, everyone is free to ask and propose whatever they want. Think outside the box. Get creative.

However, while creative proposals may be limitless, the time to propose them is not. The time to negotiate is before services are rendered, significant time is spent, or money changes hands. Thus, the real issue at the heart of your question is your comment that “because of time restraints, according to the record company, it was only possible to give a contract after the recording was made.” In my experience, I have yet to encounter a situation that was so dire and immediate that at least some basic understandings of key terms could not be mutually agreed upon ahead of time.

Sadly, it’s not uncommon in the arts and entertainment world for the artistic aspects of a project to proceed on a completely separate track and pace from the administrative and business details. New works are created or composed before the commission agreements are in place. Recordings are made before the recording contracts are signed. Engagements are scheduled and sometimes even performed with no engagement agreements. I’ve even known artists to collaborate with one another and then try, almost always unsuccessfully, to negotiate a collaboration agreement after the work has been optioned for production.

Of course, some of this is understandable. Contractual terms can be confusing, especially when the parties are unfamiliar with business practices and terminology. Also, it can take such considerable effort just to coordinate the funding, schedules, and parties that no time is left for negotiating contractual terms. Also, its not uncommon for different individuals and departments within a large organization or institution to address artistic planning and scheduling separate and apart from contractual and business planning without communicating or coordinating with one another. But, whatever the reason, this phenomenon is unfortunate because it makes it much harder to negotiate favorable terms or, at the very least, to manage expectations, avoid potential conflicts, and make informed decisions.

The biggest—and, often, only—power an artist has in a negotiation is the power of “no”—that is, the power to say: “I’d rather pause for a moment, even it means losing the deal or opportunity, than enter blindly into a relationship where I may have no control over my creative services.” Of course, it can be equally bad for record companies, producers, and presenters who can find themselves investing both time and money without getting the rights or return they anticipated. While saying “no” or “stop” can sometimes cause a lost opportunity, the alternative is a bad or unfavorable deal that, ultimately, could prove worse.

Without a doubt, legitimate practicalities, including artist availability and opportunity costs, can often make it difficult for a formal contract to be drafted up in advance of every occasion. However, there is rarely a legitimate reason why parties cannot at least mutually agree upon basic terms, with a more formal agreement to follow. Remember, a contract is a written memorialization of an existing agreement. Until an agreement exists, there is nothing to memorialize. Without terms agreed upon ahead of time, there is no contract to draft.

In any situation, if time is of the essence, never wait for the other party to provide a contract or propose terms. You may need to make the first move. In your situation, if the record company refused to provide a contract, then your artists could have proposed their own terms or set out their own requirements for proceeding with the recording. If your artists are truly as “successful” as you indicate then chances are the record company would have agreed to an outline of reasonable terms. When you say that your artists “made attempts”, that should have included writing:

“Dear Record Company, while we are very excited about the prospect of working together, unless we can arrive at a mutual agreement of some basic terms, we will be unable to proceed with the recording as scheduled. Thus, we are proposing the following…..”

Contractual terms do not, and should not be, a confusing quagmire of legalese. Write your proposals in clear, understandable language. The key is to be detailed, not convoluted. As even the most experienced artist managers can find themselves daunted by the prospect of proposing terms for recording contracts and other multi-media deals and transactions, you would be wise to bring in some specialized help.

Ultimately, in your situation, if the record company paid for the recording without negotiating the contract, then they took the risk that no agreement would be reached and that your artists could simply refuse to permit the recordings to be released. That would leave the recording company with a worthless product. Of course, your artists wouldn’t own recordings they didn’t pay for, so they would have nothing to show for their time. Everyone loses. Hopefully, the potential of mutual self-destruction will force the parties into coming up with the reasonable compromise that should have been agreed to ahead of time.

__________________________________________________________________

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, Copyrights, For Profits, Independent Contractors, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Recordings, Touring, Venues | Comments Closed

Using Existing Recordings–Not So Fast!

Wednesday, April 10th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

A few weeks ago you wrote a great article about how to obtain a mechanical license when someone wants to record music. But what about using a recording that already exists? We would like to promote an upcoming concert at our venue by putting some recordings of the artist on our website. Since the artist gave us the recordings, are we ok?

Thanks…and no, you may not be ok.

Any time you want to use an existing recording of a composition, whether to put on your website, or as a soundtrack to a film or video, you will need to get permission (aka “a license)” from the composer (which often means contacting the composer’s publisher) as well as permission (aka “a license”) from the owner of the recording (which is often a record label.) That’s right, you may need to get two separate licenses! Why? Because copyright law creates a separate copyright in compositions and a separate copyright in the recording of a composition.

Just because an artist or an artist’s manager gives you a recording and gives you permission to use that recording, doesn’t mean that the artist owns the recording or has the rights to give. Even if it is a recording of the artist’s own original composition or if the composition itself is in the public domain, the artist may not own the recording. In which case, the artist cannot give you permission to use it, much less the artist’s manager.

Shortly after I posted the earlier blog you mentioned (The Mechanics of Mechanical Licenses, March 6, 2013), Peter Christ of Crystal Records Inc. (http://www.crystalrecords.com) sent me an email which exactly and accurately addressed this issue. He graciously agreed to let me post it here:

Your explanation was very clear and should help those who want to record music that is not public domain. However, it does not address the situation of a person who wants to use a recording already made, and on a record label, for their web site or their movie or other background music use. It should be made clear that the publisher needs to be contacted and ALSO the record label or other copyright owner of the recorded music.

We sometimes find out that our copyrighted recordings are being used as background music for films or on someone’s web site. This is not legal without our permission, and when it is discovered, the legal expenses can be very high for the perpetrator.

 

Some people want to do it right, and we frequently get requests for license to use our recordings for films, web, etc. We always appreciate that someone is honest and knowledgeable enough to request a license. However, in most cases, they do not realize they need a license both from the record company and from the publisher of the music. And in many cases, the music was recorded under an AFM contract and additional payment must be made through the union to the musicians on the recording. It should be pointed out that even if the music itself is public domain, the recording is most likely not, so permission from the record company, and possibly the union, is definitely needed. So the two minutes or so they want to use can get quite expensive.

Thank you for your excellent column in Musical America.

See, I don’t make this stuff up just to make your lives complicated! Bottom line, when it comes to music rights there are three rules: never assume—always ask—and know who to ask.

__________________________________________________________________

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, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Presenters, Publishing, Recordings, Venues | Comments Closed

Independent Contractors or Employees: What’s In A Name?

Wednesday, April 3rd, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I hire musicians to perform, with me. Are they employees or independent contractors? I do not deduct taxes from what I pay them. Should I also make them sign a contract stating that they are independent contractors?

Contrary to what many believe, the distinction between who is an independent contractor as opposed to an employee is not as simple as merely making them responsible for their own taxes (and issuing them a 1099) or making them sign a contract or other document in which they affirm that they are an independent contractor. Like many legal relationships in the arts, “titles”, while not entirely irrelevant, do not in and of themselves carry any legal significance. Instead, determining whether a hired musician (or anyone you hire to provide services for you) is an employee or an independent contract requires an analysis of both state and federal regulations.

A person is an independent contractor only when free from control and direction in the performance of their services. As independent contractors are not covered by unemployment insurance laws, labor standards, or safety and health regulations, each state, as well as the federal government, have established various “factors” concerning the nature of the relationship between the parties which are used to determine whether or not a person is an employee or an independent contractor. These factors include how a person is paid, the amount of control you have over them, where their services are performed, how their services are performed, whether or not they are part-time or full-time, and even whether or not the person you are hiring is “incorporated” as a business or merely uses a “dba” and is a sole proprietor. All factors concerning the relationship between the two parties must be taken into consideration. No one single factor is controlling, nor do all factors need to be present to establish the nature of the relationship.

Not surprisingly, the “factors” can differ from state-to-state, with some states applying a more liberal analysis than others. Whereas, in some states, its almost impossible for anyone to hire an individual as an independent contractor unless the individual is incorporated as a C-corporation, S-corporation, or a limited liability company, other states afford more discretion to the employer to determine how to classify the people they hire. And the federal government has its own set of factors and guidelines. As a result, its not uncommon for the same person to be classified as an independent contractor for federal purposes (IRS, US Department of Labor, etc.) and an employee for purposes of state unemployment law and state taxes.

While all the various factors must be considered, in almost all cases the most significant factor is whether the party contracting for the services exercises, or has the right to exercise, supervision, direction or control over someone they hire. In the case of musicians and other performers: do you hire them to show up and perform their own music in whatever manner they want? Or do you direct them? Do you require them to attend rehearsals? Can they wear whatever they want or do you require specific costumes or clothing? In general, musicians or other performers who are paid to perform and are told/directed what to perform, how to perform it, where to perform, and what to wear are almost always considered “employees”, if not by the federal government, then by most state governments.

The only way to answer your specific question is to apply the applicable state and federal factors and guidelines to your specific circumstances. However, the New York State Department of Labor actually has specific guidelines and factors for determining whether performers are employees or independent contractors. You can find them at http://www.labor.ny.gov/formsdocs/ui/ia318.17.pdf Whether or not you are in New York, this is a good place to start.

_________________________________________________________________

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, Contracts, Employees, For Profits, Independent Contractors, Insurance, Law and Disorder: Performing Arts Division, Liability, Limited Liability Companies, Non-Profits, Venues | Comments Closed

Does God Serve On Their Board?

Wednesday, March 20th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

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

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

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

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

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

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

You’re Not the Boss of Me!

Wednesday, February 20th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law & Disorder,

 

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

 

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

 

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

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

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

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

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

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

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

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

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

Does Original Music Exist Anymore?

Wednesday, November 21st, 2012

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I have a small venue. All 3 licensing companies are claiming I need to pay them for my karaoke and music that occurs weekly, but the bands that I have sign contracts making sure they only play their original music, nothing copyrighted. These companies have been strong-arming me with threats that there’s no such thing as original music anymore and that I must pay or I will be heavily fined. Is this true and, if so, is there blanket licensing that I may acquire for all 3?

Well, if there’s “no such thing as original music anymore”, that’s news to me and, I suspect, the thousands of composers out there!

If you require your bands to perform only original music that they composed themselves, then you do not need to obtain performance licenses from ASCAP, BMI or SESAC. The bands can give you all the permissions you need. However, if the bands breach their contract by “sneaking in” a few covers and performing music written by other bands or artists, then you would be liable for not having the proper performance licenses in place. (The band would be liable, too—for both breach of contract AND copyright infringement—but the performing rights organizations are more likely to go after you than the band.)

The karaoke is another matter. Karaoke machines, like jukeboxes, require licenses to be used in public venues such as yours. If you are featuring weekly karaoke nights, then you definitely must obtain karaoke licenses. The good news, such as it is, is that you can, indeed, obtain blanket karaoke licenses from each of the three performing rights organizations. The licenses will be based on the size and income of your venue.

Thanks for writing…and thanks to all of you who have written in, supported our blog, and asked great questions! Keem ‘em coming! Happy Thanksgiving!

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Venues | 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

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