Posts Tagged ‘cancellation’
Thursday, January 16th, 2014
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder,
About six months ago, a venue booked one of my artists and then sent me a signed contract with language requiring the artist to arrive the day before the concert rather than the morning of the concert. The venue was not willing to pay for an extra night of hotel and the artist already has a concert booked the night before, so I struck the language, signed it, and sent it back. The presenter never said anything, but now they are claiming that they never read the contract after I sent it back and are insisting that either the artist arrive the day before or else they will cancel. They claim that this policy is necessary to protect them from a cancellation in case it snows and the artist can’t arrive. The concert is in one month. Are they correct? Do they have the right to cancel?
You had every reason to object to this the language. There are many reasons for an artist to arrive the day before a concert—such as rehearsals, flight schedules, or travel time—but merely allaying the venue’s fears of a weather-related cancellation are not among them. Even if the artist didn’t already have a concert booked for the prior evening, he is being asked to give up what could otherwise be a bookable performance date as well as to incur his own hotel expenses. That’s unreasonable. It’s like inviting someone to dinner, but insisting that they arrive five hours early and wait outside while you cook. However, when you crossed out the language, signed the contract, and sent it back, your actions constituted a counter-offer, potentially rendering the contract null and void.
To make a binding, enforceable contract, all the parties must agree to the same terms at the same time. If one party changes anything in the contract and the other party does not expressly agree to such changes, then the contract is void. This is why, as a general rule, it is unadvisable for one party to send another a signed contract until after all parties have had a chance to discuss and negotiate all the terms. Instead, whoever is drafting or initiating the contract should send an unexecuted draft of the “proposed” contract to the other party. The contract should then be executed only after all discussions, negotiations, and final changes (if any) have been agreed upon.
In this case, you should have contacted the venue and discussed your objections before unilaterally editing the contract or striking the objectionable language. Nonetheless, by not objecting to your changes, by relying on the fact that your artist had scheduled their concert on his calendar, by waiting six months, and, presumably, by advertising and selling tickets to the concert, the venue accepted your counter-offer and the contract became legally binding. As far as their claim that they didn’t notice your changes and just assumed you had signed the contract, that’s their problem. Never assume. Consequently, under the terms of the contract, the artist is not required to arrive the day before, so the presenter has no right to demand that he do so. If the presenter were to cancel at this stage, it would constitute a breach of contract.
While a legal analysis is always only half the analysis, and all reasonable solutions should first be explored, should the venue cancel the engagement, it would be liable for the artist’s full engagement fee. Cancellation insurance would probably have been a simpler and more cost effective alternative.
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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.
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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:artist, breach, breach of contract, Brian Taylor, cancellation, Drafting, enforceable contract, Goldstein, insurance, Liable, negotiation, presenter, reasonable solution, travel, venue
Posted in Acts of God, Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Presenters, Touring | Comments Closed
Wednesday, December 4th, 2013
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder
I recently had to cancel an engagement. We had a signed contract with the venue, but circumstances arose where we had no choice. I sent a very cordial and professional email to the venue, but got a very threatening and aggressive response. I wrote back and explained our situation, then I received a nasty email from the venue’s attorney threatening to sue us. This doesn’t seem very professional to me. We could have worked this out and now they are demanding either a written assurance that we will perform or else they will sue us for damages.
In an industry that depends on relationships and communication, email, more often than not, facilitates neither. Too many folks use email as convenient way to avoid what they perceive will be difficult or unpleasant conversations. What you perceived as a “cordial” and “professional” email may have been misread as dismissive and aggressive. Why? Because emails cannot convey tone or emotion or sincerity.
This is yet another example of why everything I needed to learn, I learned in theater. Emails are like scripts. Without an actor or stage directions to assist in interpreting them, they are just words on a page and subject to multiple interpretations and readings. “I loved your performance” can be read equally with deep sincerity or with eye-rolling sarcasm. Even something as simple as “I’ll respond as soon as I can” could be interpreted as “This isn’t important enough to me to demand my immediate attention.” Especially when you are delivering information you know the listener will not be receptive to hear, don’t be surprised when they do not give you the benefit of the doubt. Emails are great tools for confirming information or clarifying understandings, but lousy for any communication that calls for nuance or delicacy at the outset.
In this situation, if you had a signed engagement agreement, then you probably had no right to cancel. Thus, regardless of legitimacy of your circumstances, a cancellation is a breach of contract. Using an email to notify someone that you intend to breach your contract is like texting your wife that you want a divorce. How did you expect them to respond? It was unrealistic to think that your missive would be met with joyous rapture and a “thank you” note.
However, the venue is equally as culpable in the escalation. When the venue received your email, they could just as easily have responded with a phone call rather than respond with their own email. Certainly, when you received the venue’s angry response, you could have used that as an opportunity to reach out to them with a personal phone call rather than yet another email. There is no guarantee that a personal phone call would have resulted in a better outcome, but more often than not the sound of a plaintive voice acknowledging responsibility accompanied by contrite offers of reasonable solutions will offer both parties better odds of avoiding unproductive conflict. You can always follow up with an email after you have had a chance to make a personal connection.
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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:breach, breach of contract, Brian Taylor, cancellation, conflict, damages, Goldstein, lawsuit, reasonable solution, relationships, venue
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Non-Profits, 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, July 17th, 2013
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: We are a small classical music presenter. Several months ago, I booked an artist for a performance this fall. Recently, I received a phone call from the artist’s manager asking for a deposit. Usually, we don’t pay deposits, although, sometimes we will if it’s an artist or manager with whom we have never worked before. However, we’ve worked with this manager before and she’s never asked for a deposit before. When I asked her about it, she said that she (the manager) was having a slow summer and that she needed the money to give her some cash flow to “tide her over” until the fall. She threatened to cancel if I didn’t agree. Is this legal? As a general rule, I’m a big fan of deposits. They provide artists with some “leverage” in the event of a cancellation and they provide presenters with some assurance that an artist has, in fact, been “booked.” However, once all key terms have been negotiated and agreed upon, whether or not a written booking agreement has been signed, then a manager cannot retroactively “require” a deposit. The requirement of a deposit is a key term which needs to be discussed, negotiated, and agreed upon at the outset of discussions. If the artist were to cancel because you refused to pay a deposit you never agreed to pay in the first place, then the artist would be in breach of the booking agreement. But that’s not really the problem here. The problem is that the manager volunteered that she was asking for the deposit not for the benefit of the artist, but for the benefit of the manager herself. It would be different if the manager wanted the deposit to reserve airline tickets or advance costs to cover the artist’s out-of-pocket expenses. However, according to you, that’s not what the manager said. She said she wanted it to “tide her over” for the manager’s own cash flow purposes. Based on that statement, and her subsequent threat to cancel if you refused to pay the deposit, the manager’s actions are not only unethical and unprofessional, in my opinion, but, more importantly, highly illegal. Managers and agents are legally bound to act only on behalf of and in the best interest of their client (the artist) and not on behalf of themselves or anyone else. In legal terms, these obligations are called “fiduciary duties.” Managers and agents can take no actions which are not authorized by the artist and most certainly cannot treat the artist’s money as if it were their own—including asking for and using deposits to float themselves loans to cover their own cash flow needs. This is why, among other reasons, managers and agents are supposed to keep their own, personal operating accounts separate from their client’s (artist’s) accounts. This should not be confused with legitimate situations where managers and agents sometimes ask presenters to split an engagement fee into two payments and pay a commission fee directly to the manager or agent and the balance to the artist. While I find this to be an ill-advised and awkward business practice, it’s neither illegal nor unethical. While I suppose its entirely possible that, in this case, the manager was acting with her artist’s knowledge and authority, I seriously doubt it. This means that the manager was acting out of her own self-interest and not in the best interest of her artist, is in breach of her fiduciary duties, is no longer acting in her legal capacity as a representative of the artist, and, in the event of a cancellation, would be personally liable for the return of the deposit and any damages. Given the manager’s self-admitted cash flow problems, that’s probably a risk you don’t want to take. I’d like to think that the manager is acting out of a genuine confusion over the duties agents and managers owe to their artists. Sadly, this issue continues to confuse even experienced managers and agents who believe that their artists work for them and not the other way around. Regardless, in terms of red flags, this one is ten feet tall and on fire. Run away! __________________________________________________________________ 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, booking agreement, breach, Brian Taylor, cancellation, commission fee, damages, fiduciary duties, Goldstein, Liable, manager, money, payment, presenter, risk
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Presenters | Comments Closed
Wednesday, June 5th, 2013
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: I just received an email that an artist is leaving my roster for another manger, effective in two weeks. I’ve been working with this artist for over five years. We’ve never had a signed contract because we’ve never needed one. Isn’t it customary to give at least 3 months notice? Also, the new manager is offering to let us keep our commissions on any engagements that are “contracted.” What does that mean? Everyone knows that engagements are often confirmed without their being contracts! Help! Actually, you’ve always needed a signed contract. You just didn’t realize you needed one until now. A contract is your opportunity to memorialize all the terms of a relationship…including how to get out of one. An artist/manager relationship is like a marriage and, when it ends, it’s like a divorce—all too often a bitter and nasty divorce. If there is no pre-nuptial agreement, then any disputes will be resolved by the application of legal rules and concepts. In these situations, such rules are quite basic: what you didn’t negotiate for in advance, you don’t get! Many in our industry like to believe that there exists a magic book of customs, traditions, and rules which govern everything from artist-manager relationships to engagement cancellations, and that, in the absence of a contract, this book will determine how everyone should behave. Nothing can be further from the truth. What may be “customary” for one person or situation may not be “customary” for another. Nor would you want it to be otherwise. The arts and entertainment industry is too diverse, too broad, and too delightfully fluid for that degree of uniformity. To the extent there exists a set of rules which govern relationships in the absence of a contract, such rules consist of the laws of contracts, agency, and a myriad of other legal concepts—all of which are fairly arbitrary and none of which will provide an outcome better than the parties could have devised for themselves through advanced contractual negotiation. Whether its exclusivity, the right to be reimbursed for expenses, the authority of the manager, or the calculation of the manager’s commissions, such issues need to be agreed upon…in advance…and memorialized in a written contract. If you want an artist to be required to give you three months notice before leaving your roster, that needs to be agreed upon and written down as well. (While an agreement does not have to be written to be enforceable, its very hard to prove the terms of any agreement without something in writing—especially when you’re in the midst of a bitter divorce when everyone’s memories will suddenly and conveniently become quite spotty.) In your case, without a written contract setting forth a specific length of time an artist is obligated to remain on your roster (ie: 1 year, 2 years, etc.) and without a requirement that the artist has to give you advance notice before terminating the agreement, then the artist can leave your roster whenever they want with no notice at all. As for the new manager’s offer to let you keep your commissions on any engagements that are “contracted”, this, too, is something that should and could have been defined in an artist management agreement. Otherwise, the definition of “contracted” will be the legal definition: a “contracted” engagement is one where there is an enforceable agreement (either written or oral), which means there has been an offer and an acceptance of that offer and the parties have agreed upon all key terms. While its true that engagements are often confirmed without their being contracts, a confirmation of an engagement may not necessarily constitute a “contracted” engagement. A “hold” may or may not be an enforceable contract. If the parties have agreed upon the date and the fee, it may not be “contracted” if there are other important issues that have not yet been agreed upon—ie: insurance, licensing, technical requirements, etc. In other words, what you consider to be “contracted” may or may not be what the law of contracts considers to be “contracted.” In the absence of a written agreement with defined terms and obligations, your best and most practical course of action is to accept that this is a bit of a mess and enter into a dialogue with your “former” artist and his or her new manager to come up with a mutually agreed upon list of “contracted” engagements on which you will receive your commissions. I can almost guarantee that such a list will have fewer dates that you believe is fair and more dates than your former artist and his/her manager believe is fair. However, if everyone believes they are giving up too much, its probably a fair settlement. Then, focus your time on getting agreements in place for your remaining artists. Pre-nuptial agreements are never sexy, but neither is finding yourself sleeping with the enemy. _________________________________________________________________ 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, artist, artist management, artist manager, Brian Taylor, cancellation, commissions, contract, Contracts, customs, dispute, enforceable contract, engagements, entertainment industry, exclusivity, Goldstein, manager, negotiation, relationships
Posted in Agents, Artist Management, Contracts, Law and Disorder: Performing Arts Division | Comments Closed
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.
__________________________________________________________________
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:acts of god, board chairs, booking agreement, breach, breach of contract, Brian Taylor, cancellation, cancellation fee, contract, contract situation, contract states, contractual obligations, damages, Goldstein, lawsuit, legal obligations, Non-Profits, poor ticket sales, presenter, reasonable solution
Posted in Acts of God, Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Non-Profits, Presenters, Venues | Comments Closed
Wednesday, November 14th, 2012
By Brian Taylor Goldstein, Esq.
No sooner had Super Storm Sandy begun crashing into the East Coast when my phone started ringing with cancellations. The most common question went something like this: “The presenter needs to cancel, but they already paid a deposit. Do we have to give it back? What the protocol?” The second most common question went something like this: “We booked an artist and paid a deposit. We’re being evacuated and need to cancel. Can we get the deposit back? Naturally, I always ask to see the contract. As I suspected, in almost each case, while the contract contained an Act of God clause, it merely stated that either party could cancel “in the event of an Act of God.” In an effort to “keep things simple” the parties also kept their contracts fairly worthless!
In essence, an Act of God provision in a contract (also sometimes called “force majeure” is a contractual provision which permits one party to cancel or breach the contract without having to pay damages or incurring any liability to the other. So, if an Act of God forces an artist to cancel, he/she is not liable to the venue for the venue’s lost ticket sales, lost out of pocket costs, or the costs of hiring and advertising another artist or performance. Similarly, if the Act of God forces the venue or presenter to cancel, it is not liable to the artist for the artist’s lost fees or out of pocket costs. However, nothing in the arts is ever that simple! Many people, incorrectly, assume that there is a common understanding or standard of Acts of God and that, in the event of a fire, blizzard, flood, or other unforeseen event, there are automatic protocols which will govern the situation. In fact, you will find that presumptions and assumptions differ wildly when it comes to Acts of God and that people, in the midst of a crisis, tend not be at their most rational. I’ve had presenters argue that poor ticket sales were Acts of God or that the death of an artist’s mother didn’t mean that the artist herself could not perform. I’ve also had an artist claim that an unexpected opportunity to perform at a better venue was an Act of God entitling her to cancel. I even know of a manger who claimed that the failure of his artist to obtain a visa was an Act of God and the artist should still receive her full fee even though she could not legally enter the US!
While no contract can even contemplate every possible scenario, you want your Act of God clause to do more than simply state that “either party can cancel “in the event of an Act of God.” Rather, you want your clause at least to provide some basic definitions and parameters: Let’s assume the venue is open, but the artist cannot get there due to a storm. Does the artist have to reimburse the presenter for any of its lost marketing expenses or costs? If the artist had already received a deposit, does it have to be returned? What if it’s the presenter’s venue is flooded, but the artist is ready, willing, and able to travel and perform? Does the presenter have to make a good faith effort to re-book the artist at a future date? Can the artist keep any deposits or advanced payments to offset the cancellation? Can an artist use an Act of God Force clause to cancel an engagement due to the death or injury of a family member or relative? Can a venue claim an Act of God if it experiences an unexpected budget shortfall or a financial crisis? What if the engagement is for a series of performances and a fire, storm, or flood forces the cancellation of only some of the performances? Is the artist’s engagement fee reduced on a pro-rata basis? What if the artist is a group and a member becomes sick or injured? Does the group have the option to find a replacement or can the venue claim an Act of God and cancel? Does it make a difference if it’s a key member of the group?
As I frequently like to remind everyone, in the arts world nothing is standard and everything is negotiable! Anyone who tells you otherwise, just wants you to do things their way. However, while there is no legally enforceable list of standard protocols or procedures which governs how things are “supposed” to happen in any given crisis, I’d like to believe that relationships are more important than contracts and, ultimately, what you are entitled to may be less important than what you have to offer.
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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, artist, Brian Taylor, cancellation, cancellations, Contracts, contractual provision, damages, flood, force majeure, Goldstein, injury, Liable, payment, poor ticket sales, presenter, unforeseen event
Posted in Acts of God, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Touring | Comments Closed
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!
Tags:agent, artist, attorney, breach, Brian Taylor, cancellation, cancellation clause, contract, contract law, damages, enforceable contract, engagement contract, Goldstein, judgment, lawsuit, losses, money, Non-Profits, venue
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Non-Profits, Presenters, Venues | Comments Closed
Wednesday, August 22nd, 2012
By Brian Taylor Goldstein
Dear Law & Disorder:
After we booked an artist, the artist’s agent booked them to perform two weeks later at another venue 25 miles away from us. It’s a smaller venue that charges less for tickets than we do. This will impact our sales. Can we cancel? I was told that exclusivity was industry standard.
Was there a booking contract? What did it say? If the contract provided your venue with a period of exclusivity or restrictions on when and where the artist could perform before or after your engagement, then the artist might be in breach of the contract. (Remember, unless the agent is acting as a producer, your contract is between you and the artist.) On the other hand, if there was no booking agreement or if the booking agreement didn’t provide you with any period of exclusivity or restrictions, then you probably would not have the right to cancel. If you fail to negotiate something (a commission rate, cancellation terms, licensing rights, etc.) “industry standard” will not provide the missing terms. Unvoiced assumptions and expectations do not become contractual arguments. To the contrary, if you fail to negotiate something, the missing terms remain missing and unenforceable.
I’ve said it before, but it always bears repeating: there is no such thing as “industry standard”—least of all in the performing arts industry. In this case, in my personal opinion, I would certainly consider it unprofessional for either an artist or an agent to intentionally book an engagement that directly competes with an already booked engagement, and I suspect I am not alone in that perspective. However, I also suspect it would be far from easy to obtain a consensus as to whether or not a smaller venue 25 miles away necessarily constitutes a “competing venue.” Regardless, contractual terms are not written by majority opinion. Neither “common industry practice” nor my own personal opinions rise to the level of contractual obligations. Without a contractual requirement specifically prohibiting the artist from performing within two weeks at another venue 25 miles away from you, you would be the one in breach of the contract should you decide to cancel for that reason alone. It would also be equally inappropriate for you to coerce or otherwise suggest that the artist breach his or her contract with the other venue in order to accommodate your concerns.
My advice would be for all parties concerned to consider an appropriate adjustment of some kind. Perhaps there is still time for one of the dates to be moved, or there can be a reduced engagement fee, or even a joint marketing strategy. Assuming that this was an unanticipated outcome by all of the parties, the primary objective at this point needs to be to preserve the relationships between the parties and find a way for both engagements at both venues to continue as planned.
_________________________________________________________________
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, assumptions, booking agreement, breach, Brian Taylor, cancellation, cancellation terms, contract, contractual obligations, contractual terms, exclusivity, Goldstein
Posted in Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Presenters, Venues | Comments Closed
legal and business issues for the performing arts, visit ggartslaw.com