Posts Tagged ‘damages’

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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

Silence Is Not Golden!

Wednesday, December 5th, 2012

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

Help! We are a small agency. We booked an engagement for one of our artists at a venue that has now cancelled the date. We had a series of emails with the venue confirming the date and fee and then sent them a formal contract that was never returned. We followed up with more emails confirming the date and asking for the contract to be signed and returned, but they never did. The venue is now claiming that because they never signed and returned the contract, they were never obligated to do the show. Are they correct? Don’t the emails count for anything? How to we keep this from happening in the future?

When it comes to contracts, silence is never golden. If you sent a contract and it was never signed and returned, that should have been a huge red flag or at least an implicit sign that read: “Stop! Go no further! Abandon all hope ye who enter here!”

If you have a series of emails confirming the engagement, and you can show that you relied on those emails by reserving the date and by turning away other bookings for that date and you can show that the venue knew you were relying and never stopped you, then, legally, you may be able to establish that there was an implicit contractual relationship. But that’s only going to get you so far! If the venue still refuses to honor the engagement or re-book or pay a reasonable cancellation fee, then you’re going to have to decide whether or not its worth pursuing a claim by filing a lawsuit.

And, of course, it all depends on what your emails actually say. Often, I’ve seen a chain of emails between a venue and agent that confirms the engagement date and fee, but ends with the agent writing something like: “Great. So we’re all set. I’ll get a contract out to you right away.” Such language can be legally construed as making the entire deal contingent on the contract. And if the contract contains additional terms and requirements that were never previously discussed, then, the contract will be legally construed as a “counter-offer”, which the venue can then refuse.

If you’re taking the time to send out contracts, then you need to make sure they are signed and returned—and, if they are not, assume the engagement is cancelled, re-book the date and move on. I realize that the realities of time and other logistics can make babysitting contracts difficult. There are many times when situations will demand that you proceed without a signed contract. However, when you choose to do so, know that you are assuming the risk. If there is a breach or cancellation, you can’t then go back and seek the protection of a contract you never followed up on or enforce terms that were never agreed upon.

Even when you have a signed contract, there’s no guarantee that the other party won’t breach it. Contracts are not self-enforcing. They merely give you the right to go into court and present a strong argument that you are entitled to damages. More importantly, they give both parties the opportunity to share concerns and expectations and access risks and challenges to the relationship. If things do go badly, the contract is a tool through which you can make an argument. For certain, it’s not the only tool, but I’d much rather pound a nail with a hammer than my head.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Not Even God Can Act Without A Contract!

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.

_________________________________________________________________

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, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Touring | Comments Closed

They Can’t Do That To Me!

Tuesday, October 9th, 2012

By Brian Taylor Goldstein

I just got a notice that a venue where I booked one of my artists is closing. I have a written engagement contract that was signed by the venue over a year ago. The notice I received says that they have run out of money and are cancelling their season. Can they do that? Do I have a valid claim? Should I file a lawsuit? Can I alert the media? How do I send a message to other venues not to do this?

Assuming you have a valid, enforceable contract with no cancellation clause or other termination provision, then the venue had no legal right to cancel regardless of their financial situation and the venue is in breach of the engagement contract. The question is whether or not your claim is worth pursuing…or, assuming that you were acting as an agent on behalf of your artists, whether or not your artists have a claim worth pursuing.

The first course of action would be to send the venue a letter notifying it that it is in breach and will be liable for damages if you are unable to re-book the date. Then, you must make every effort to re-book the date and minimize (aka “mitigate”) damages. As a matter of contract law, your artists are not automatically entitled to the full engagement fee. Rather, if you were to re-book the date for a smaller engagement fee, your artists would be entitled to the difference. If you were to re-book the date and obtain a higher fee, your artists would not be entitled to any damages at all. Even if you are unable to re-book the date, you must be able to show that you made every effort to do so and made every effort to minimize any other losses or out-of-pocket expenses. (ie: Can you cancel or get a refund for any travel expenses? Are they any production or crew costs you can avoid if the engagement is cancelled?)

To enforce your claim, you would need to file a lawsuit. Depending upon the terms of your contract, you may be able to file the suit where you are located or where the venue is located. However, any judgment outside of the state where the venue is located would be unenforceable unless you took the judgment into a court in the venue’s state and had it recognized by that state. Regardless, getting a judgment does not mean that you will get any money. It just means you are legally entitled to money. With the judgment in hand, you would still need to “collect.” Collection would involve more court proceedings in order to levy bank accounts and attach assets. All of this would need to be done in the state where the assets are located. Also, unless your contract provides for court costs and attorneys fees, those would not be recoverable. Ultimately, whether or not you want to file a lawsuit depends on the amount of your damages and whether the time and costs of pursing the claim outweigh the likelihood of collection. Unless the venue actually owned its own performance space or has other assets to draw from, it can be near impossible to see any actual money. If the venue has no assets or files for bankruptcy, then you would get nothing…or next to nothing.

Your more immediate and practical course of action, aside from making every effort to re-book the date and mitigate damages, may be to notify the venue of your claim and then wait. The statue of limitations for a written contract varies from state-to-state, but, in most instances, you will have from 3 to 6 years to file a lawsuit. If the venue is able to re-organize and re-open before the statute-of-limitations runs out, you could revisit the matter and, if they refuse to pay or otherwise agree to a reasonable settlement, still file your lawsuit. On the other hand, if the non-profit ultimately closes, and it turns out that there are assets to distribute, they will need to seek a court approval of the distribution. You can file a creditor claim and stand in line with their other creditors at that time.

This is may also be a good opportunity to review your engagement contract. As you can see, a lot of your options in these situations depend on the enforcement tools you give yourself in your contract. Do you require non-refundable or forfeitable deposits? Are there specific liability provisions? Interest? Attorneys fees?

As for alerting the media, I realize the venue’s actions appear outrageous, unprofessional, and unethical. Nonetheless, without knowing more about the specific circumstances of this particular venue and what has led to their decision to cancel, “going public” could easily backfire on you as well as your artists. Resist the urge to go on a crusade. They are rarely successful and everyone dies. As for sending a warning to other venues, I seriously doubt most non-profits need to be reminded that contractual breaches, lawsuits, and dissolution of assets are not effective strategic plans.

__________________________________________________________________

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

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