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Plan On It!

Wednesday, October 1st, 2014

By Brian Taylor Goldstein, Esq.

We booked a tour for a folk/rock group that will be touring the US for the first time. It took a lot longer to get their visas approved because US Immigration kept asking for unreasonable things like background information on venues and festivals and even made us get actual copies of press. They also made us pay a fee to a union even though the artists are not union members. Now, the consulate is refusing to accommodate the group’s travel schedule. Because the group is on tour before coming to the US, there are only 1 or 2 days that will work for them to go to a US consulate and they will need to get the visas back the same day or the next day at the latest. We have already booked all of the flights and those cannot be changed without great cost. Its probably too late now, but, for the future, is there a way we can request a specific date and get the visas back the same day? How do we avoid all of this delay and scrambling in the future?

Unless you just arrived to our fair planet, then you probably know that the process for obtaining visas for foreign artists to perform in the United States has been significantly compromised for the last nine months or so. While there have been some minor improvements in some areas, the process has continued to be mired down with narrower interpretations of old regulations, frustrating Requests for Addition Evidence (RFEs), and stricter scrutiny. So you should expect delays and plan for them. If a visa petition was simple last year, expect it to be more time consuming this year…even if its for the same artist and group.

While both United States Citizenship and Immigration Services (USCIS) and the United States Department of State’s Consulates (which, for the record, are two different agencies) will make accommodation for emergencies, they are loathe to do so…and the emergencies have to be actual emergencies and not just scheduling or planning conflicts. This means, it needs to involve a last minute cancelation, medical emergency, Act of God, or other severe hardship which could not have otherwise been avoided by advanced planning. Otherwise, the process does not accommodate. You must accommodate the process. You simply cannot count on either USCIS or the US Consulates to accommodate an artist’s tight schedule or limited range of availability.

Your best strategy is to make a realistic assessment of the entire visa process before booking a tour or engaging an artist in the first place. While this may sound obvious, its surprising how often we see the very opposite in practice. There is a presumption that if you book or engage an artist, then all of the other logistics will magically sort themselves out. For example, at a recent arts conference, a manager made an appointment for a free consultation. Their question was that they had just taken on a number of young, non-US artists onto their roster, had already booked a number of US engagements for them at that same conference and wanted to know how hard it will be to get visas for them to perform in the US. That’s a great question, but one which should have been addressed before the manager accepted the artists onto their roster in the first place.

Too often, we see a similar scenario in large presenting organizations where the artistic planning department seems to believe that it is their job to dream big and someone’s else’s job to make sure everyone shows up. I have seen entire festivals planned, with artists engaged and travel plans made, before anyone turned to the issue of visas or other more mundane matters. The truth is that both halves need to work together…and at the same time.

Without question, the US visa process is frustrating, illogical, impractical, absurd, arbitrary, unpredictable, and expensive. What it is not is flexible. For managers and agents, its not just about signing artists that you know you can get booked. For presenters, its not just about planning performances that will sell tickets and enthrall audiences. The artists actually need to show up. That means taking into consideration, at the outset, such issues as: have there been any changes or new requirements since the last time you or the artist obtained a visa? Does the artist or group have the necessary background materials and supporting evidence required for a visa petition? Who will be in charge of the process? What are the costs and who will pay for them? What is the timeline?

Its also not enough just to turn the process over to someone else. There have been many instances where we have been brought into help obtain a visa for an artist or group who has been booked to perform in the US, only to discover that no one has bothered to advise the artist or group of the process or the considerable amount of paperwork and documentation they will need to provide. This almost always causes considerable delay and extra costs. You simply cannot book a foreign artist and ask questions later.

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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 and/or posthumously.

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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:act of god, agent, artist, Brian Taylor, engagements, Festival, Goldstein, immigration, last minute, manager, presenter, rfe, Tour, travel, united states citizenship and immigration services, uscis, venue, visa petition, visas, work
Posted in Agents, Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

When Non-Payment Is A Crime

Wednesday, September 24th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

Our group got a bad check from a venue for a performance. We called them and they sent us a new check, but that bounced, too. Now they won’t return our phone calls. Is there anything we can do?

Many venues, especially smaller non-profits, wrongly believe that if they run out of money and can’t pay their debts, then that is simply the unfortunate consequence of “doing the best they can in a difficult economy” and they are “judgment proof.” I once even had an artistic director of a deadbeat presenting organization tell me that, although they were unable to pay the money they owed my artist, the artist had already been paid ten-fold in goodwill and the joy they brought to the audience. Try to pay a landlord with love and goodwill and see how far that gets you!

Almost every state has a statute that allows a person who receives a bad check to sue the issuer of the check and not only receive two to three times the value of the check, but to recover attorneys fees and court costs as well. While its true that suing an organization that has no money is often a waste of time and money, passing a bad check falls into a category of its own. Its bad enough not to pay an artist for a performance (which is always a crime in my book), but most states also makes it a criminal offense to write a bad check. The value of the check will determine whether the crime constitutes a misdemeanor or a felony. You will want to do some research on the laws in your particular state.

Writing a bad check is also considered a personal tort (legalese for “offense” or “a bad thing which you can be liable for doing”) and the person who signed the check is NOT protected from liability or prosecution even if they were acting on behalf of a corporate organization. In other words, the individual who signed the check can be personally sued…or even arrested…even if they were an officer, employee, board member, or volunteer or the organization.

While these can be important tools, your first step should never be to file a lawsuit or run to the police. Besides, both civil and criminal laws require some form of “intent” on the part of the issuer of the check such that there is no liability for inadvertently writing a bad check or where the check merely crossed with the available funds. However, the issuer must immediately provide payment upon notice that the check was returned.

If the venue is not returning your calls, then write them a formal letter. (I am always surprised by the number of artists, agents, and presenters who believe that email—or even text messages—is an appropriate method for conducting business communications of a contentions or delicate nature. Step away from the electronic device!) If necessary, send letters to the Chairman of the Board or to individual officers. You may want to remind them of their exposure to personal as well as criminal liability. If they continue to ignore you or fail to make payment, then you have written proof of their intent not to honour the check. You will now need to consider whether to contact a local attorney, file a claim in smalls claims court, or contact the prosecutors office in the city or town where the venue is located. Also, in the future, especially when dealing with venues with whom you have never worked before, I would urge you to ask for deposits that are at least sufficient to cover your actual costs and out-of-pocket expenses in the event of cancellation or non-payment.

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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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agent, artist, Brian Taylor, cancellation, debts, Goldstein, judgment, lawsuit, Liable, money, payment
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability | Comments Closed

The Recipe For Confusion

Thursday, September 11th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We obtained a three year O-1 visa for one of our artists. We are the artist’s agent and served as his petitioner. A large venue wants to book the artist, but they are insisting that, according to their finance department, they cannot pay us as the artist’s agent and that they must pay the artist directly as an employee of the venue. While we are willing to agree to this, the venue is also insisting that, because they must pay the artist directly, we either must file an amended petition specifically naming the venue as an employer or file a separate petition just for the venue.

Whether its dealing with visas, taxes, or employment issues, we here at GG Arts Law often find ourselves in loggerheads with CFOs, finance departments, HR directors, and others, especially at large venues and organizations, who seem to use the same recipe when developing policies and directives: Take one very broad workshop which they attended several years ago and is now outdated, add an opinion from a board or volunteer attorney who doesn’t actually specialize in the topic at issue, stir in some research done by an intern, mix well with incorrect anecdotes from peers and colleagues, add a dash of ego, bake well, and insist this is the law.

In your particular situation, the venue appears to be confusing several key concepts: (1) the nature of itinerary based visas for artists; (2) the ability to add additional engagements when an artist is on an itinerary based visa; and (3) the relationship (or lack thereof) between employment law and immigration law.

Itinerary Based Visas:

Most immigration scenarios contemplate a single employer submitting a petition on behalf of a non-US individual whom they wish to hire. In those instances, the employer submits an I-129 petition to USCIS and, once approved, the name of the employer will appear on the I-797 approval notice authorizing the individual to work for the employer. If the individual wants to work for more than one employer, then each employer needs to submit its own I-129 petition.

However, there is an exception for artists: The applicable immigration regulations recognize that O-1 artists of “extraordinary ability” typically come to the US to perform “on tour” and, thus, will have multiple employers who hire them to perform. In such cases, a single petition may be filed with USCIS covering all of the artist’s engagements with multiple employers in the US. These are known as “itinerary-based” O-1 visas because, as opposed to covering a single performance, the petition includes an “itinerary” of performances and engagements with multiple employers.

So, for example, let’s say that an opera singer is hired to perform at the Metropolitan Opera, San Francisco Opera, and Seattle Opera. While each venue could certainly file its own, separate I-129 petition, the Metropolitan Opera could be designated as the singers “agent” and submit a single petition on which it also lists the singer’s engagements at San Francisco Opera and Seattle Opera. As the petitioner, only the Metropolitan Opera’s name would appear on the I-797 approval notice. However, because all three venues were listed on the singer’s “itinerary” the singer would be authorized to perform for all three. Alternatively, if the singer had an actual US agent or manager, the singer’s agent could serve as the petitioner and serve as the petitioner and submit a single I-129 petition to cover all three engagements. Again, as the petitioner, only the agent’s name would appear on the I-797 approval notice. However, because all three venues were listed on the singer’s “itinerary”, the artist would be authorized to perform for all three.

Adding Additional Engagements:

Continuing with this example, let’s suppose that after the singer arrived in the US, the singer was contacted by Washington Opera and asked to replace another singer who fell into the orchestra pit and can no longer perform the role. This last minute engagement would take place between the singer’s engagement with San Francisco Opera and Seattle Opera. Does Washington Opera have to file its own separate I-129 petition? No. Does the petitioner of the singer’s original I-129 petition have to file an amended petition “adding” this new engagement? No. Provided that additional engagements occur within an artist’s approved or existing O-1 classification period, and provided that the engagements or services are consistent with the artist’s O-1 qualifications (ie: performing, teaching, master classes, residencies, etc.), the artist is legally permitted to add and perform such additional engagements without the necessity of anyone filing an amended petition or otherwise notifying USCIS of the additional employers. The triggering factor is whether or not an artist was on an itinerary based visa with multiple employers to begin with. (By contrast, if an artist wants to add an engagement or performance that would take place after the period of the artist’s approved or existing O-1 classification period, that would require a new or amended O-1 petition to be filed.)

The Immigration Implications of the Employment Relationship:

Many people see the word “employer” used throughout US Immigration Law and its applicable regulations and presume that it has the same connotations as when used in the context of a traditional “employer-employee” relationship. It does not—particularly in the context of O and P artist visas. US Immigration Law uses the term “employer”, at least in the context of O and P artist visas, to refer to anyone who hires or engages the services of an artist in any capacity regardless of how the employment relationship is structured. A petitioner is neither presumed nor required to be the artist’s actual employer under any circumstances. Moreover, it doesn’t matter who pays whom or whether the artist is paid as an independent contractor or an employee, or even whether the artist is paid at all. This is because US immigration law does not use payment, or lack thereof, as a determinative factor in whether or not an artist requires an O or P visa. If an artist performs in front of an audience or otherwise provides professional artistic services in the US, such artist is required to have either an O or P visa regardless of whether or not the artist is paid, tickets are sold, or the artist receives any compensation from any source directly or indirectly. Thus, while the petitioner of an itinerary based I-129 O-1 petition can also serve in the dual role of one the artist’s employers, there is no requirement under any aspect of applicable immigration law that the petitioner actually serve as one of the artist’s employers, much less that all employment and payments go through the petitioner, or anyone else for that matter.

In short, so long as the artist is on a valid, itinerary-based O-1 visa, anyone can hire and pay the artist, directly or indirectly. Who pays the artist and how are all contractual issues to be negotiated between the parties and not immigration issues.

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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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agent, approval notice, artist, Brian Taylor, contract, engagements, Goldstein, immigration, immigration law, independent contractor, manager, payment, petitioner, uscis, venue, visas, work
Posted in Agents, Artist Management, Arts Management, Employees, Law and Disorder: Performing Arts Division, Presenters, Taxes, Touring, Venues, Visas | Comments Closed

Opening Pandora’s Box

Thursday, September 4th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

Loved your recent Musical American newsletter article on ethics. As a manager, I was very interested when you wrote: “Indeed, the time is long overdue to start considering changes to the long standing paradigms and business models between managers and artists that, for many reasons and for all parties, are no longer viable.” Any chance I could get you to expand on that comment a bit?

Must I? It’s only going to get me in trouble! Oh, well, here goes….

It’s hardly a secret that everyone throughout the arts industry is working harder and harder and earning less and less—and searching for both solutions and as well as excuses. Managers and agents are increasingly becoming frustrated with artists who they perceive as making unreasonable expectations and demands in exchange for paltry commissions. Artists are increasingly becoming frustrated with managers and agents who they perceive as earning large commissions but are unable or unwilling to provide the additional skills and services that they feel are necessary in today’s arts and entertainment marketplace.

While some managers are exploring different options (ie: fixed retainers, hourly rates, reduced commissions for more successful artists, etc.) others are wedded to the strict commission model. As I sit here typing this on my computer keyboard surrounded by my collection of quills and antique ink wells, I am the first to admit that I am a staunch traditionalist, resistant to change, and have even been described as “a walking ritual.” However, change is inevitable and merely continuing to claim that what worked in the past will work in the future, ignores the present realities. Assuming that there is some sort of “industry standard” that has and will survive the test of time is both unrealistic and short sighted.

Under the traditional agent or management relationship, managers and agents literally advance their services on the expectation that they will be compensated with an engagement commission at some point in the future and that, if the artist sticks around long enough and is successful, the agent or manager will recoup the initial investment of their time and efforts. While it’s intended to be a mutually beneficial partnership, is this still the case? Are the risks still equitable? While most certainly there are issues to consider far beyond mere economic and business challenges, being an impresario doesn’t always pay the bills. Part of what makes the performing arts industry so unique is the personal passion most agents and managers share for the work of the artists they represent. Nonetheless, even where the goal is to introduce an artistically important artist to new audiences and perpetuate critical art forms, selling tickets, booking engagements, and discovering new programming opportunities are all commercial enterprises. If the end result is that managers and agents simply cannot afford to stay in business, then everyone loses.

One often overlooked factor is that agents and managers are not used to thinking of their time as a valuable commodity. However, like attorneys, doctors, and others who provide personal services, managers and agents are primarily “selling” their time, expertise, and experience and the traditional commission model doesn’t often adequately compensate for the value of the time actually spent. Similarly, because artists think in terms of results, they often don’t have a realistic understanding of how much time and effort it takes to provide them with the services and results they require and often conclude they can find better deals elsewhere or on their own. In other words, a manager’s own success can often undermine the perception of how hard they are actually working.

It’s one thing for an agent or manager to advance their time, but I’m also increasingly seeing agents and managers advancing their own money to cover artist expenses with the expectation of being reimbursed by the engagement or tour fees. When did an agent or manager’s business plan including being a bank? I’ve even seen many managers and agents advance costs for airline tickets or tour expenses, including visas and taxes, out of their own pockets only to have the tour cancelled or an artist leave the roster. At what point is a tour or artist not worth saving?

All of this leads to some important questions: is a demanding artist actually “worth” the time and effort that they require? How do you deal with a demanding client base without killing yourself? Is the commission model still viable? What services do artists really want, need, or expect? (Remember, at least from a legal perspective, the “client” of an agent or manager is always the artist, never the venue.) Is there a more efficient or cost effective way of providing those services? Are managers and agents spending too much time learning new skills at the expense of focusing their time on those areas where they already have expertise? While in many instances, the traditional an arrangement is the only way a new or young artist can afford management or an agent, does this arrangement continue to make sense with more established and successful artists? Does it ever make sense for an agency or management company to become overely dependent upon commissions from top artists to underwrite the less successful artists on the roster? Are there other viable options to earning revenue than simply charging higher commissions? Hourly rates? Retainers? Fixed fees? Merging smaller agencies and companies into larger and larger behemoths? Are there different arrangements that might better serve artists as well as agents and managers?

While I obviously have my own thoughts and opinions on these topics, they would hardly be dispositive or universally applicable. There is never going to be a single solution that works for everyone and, ultimately, each agency or management is going to need to develop different solutions that work for them, their business plans and goals, and their artists. Still, I’d love to see more serious consideration and exploration of these topics on multiple levels. Frustratingly, whenever I am a party to workshops and discussions about “new business models”, it almost inevitably winds up being a discussion of how to “sell” artists to presenters and, rarely, if ever, an honest assessment of the field of management and artist representation itself. In other words, the focus of exploration tends to be outwards—how to sell better, package better, market better, and, in short, reach venues and presenters in different ways. While those issues are unquestionable important, there remains a perception that it’s the marketplace that needs to fixed. If you really want to examine new paradigms in a changing environment, agents and managers, as well as artists and presenters, will also need to look inwards and examine themselves as well.

Have a great season everyone!

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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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agent, artist, Brian Taylor, commissions, engagements, Goldstein, management company, manager, Paradigm, personal services, presenter, risk, Tour, venue, work, young artist
Posted in Agents, Artist Management, Contracts, Law and Disorder: Performing Arts Division | Comments Closed

Welcome To The New Visa Reality!

Thursday, July 24th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We filed visa petitions for O-1 and an O-2 visas. USCIS is asking for a contract between each of the O-2s and either the petitioner or the employers. This has never been an issue before and we’ve been doing this for 20 years. They are also asking for a union consult letter for one of the O-2s whose title is “Movement Coach.” We got a consult from IATSE for the others, but IATSE doesn’t cover this. USCIS is suggesting that we get a consult from AGMA. Do we have to do that? Can we use a letter from a peer organization like TCG or APAP instead?

Thanks for giving me an excuse to rant about USCIS and the new challenges of obtaining visas for artists who wish to perform and tour in the U.S. I haven’t done that for almost a month now.

Both the Vermont and California Service Centers continue to shoot back frustrating Requests for Evidence (RFEs) and to scrutinize petitions like never before. They appear to be paying special attention to O-2, P-1S, and P-3S petitions for support staff. It has now become de rigueur for USCIS to require that employment terms for each member of the support staff be specified, including who is paying them and how much they are being paid. They are also asking for resumes for each person and a specific statement of why each person is necessary and critical to the performance or concert.

You can also expect new troubles with P-3 petitions for culturally unique artists and groups. While P-3 petitions have always had their own complexities, both service centers are now reiterating that an artist or group cannot be culturally unique and also perform anything that is “contemporary” or “modern.” One RFE I saw stated that: “The contents and themes of a particular form of art may also contain elements and influences of a given culture, and yet still not meet the definition of “culturally unique.” Also, simply because a form of art may be unique, it does not necessarily follow that it meets die regulatory definition of “culturally unique.” Another USCIS examiner recently wrote:

It is not enough for the author of a testimonial letter to simply state that the beneficiaries have cultural, artistic, and/or culturally unique skills. The testimonials should be detailed and specific in describing what the beneficiaries’ skills are; how the beneficiaries obtained those skills; how and why those skills are associated with a “culturally unique” art form; and what the defining aspects of the beneficiaries’ particular art form are that make it “culturally unique” as opposed to other forms of the creative activity or endeavor. Furthermore, it is not sufficient to simply state that an artist represents his or her culture.

Speaking of testimonial letters, I am continuing to see USCIS request “independent evidence” establishing that each expert is, in fact, a “recognized expert.” Whether or not this means that the experts must now have experts, simply attaching the expert’s resume is no longer sufficient. USCIS is continuing to ask for articles and websites verifying each expert’s credentials.

In addition to targeting P-3 petitions and petitions for support staff in all categories, USCIS also appears to be focusing the all-seeing eye of Sauron on young artists, particular recent graduates who may still be in F-1 status. Any appearance of the words “young” or “rising” or “up and coming” will bring a certain RFE. You also need to focus on the “professional” work of the artist and put as much distance as you can between the artist and any school or training experience.

As for union consultations, letters from peer groups and service organizations have never been an alternative where a union covers the specific job title. However, while USCIS may have let this slip in the past, this is no longer the case. If they even smell the applicability of a union, then you must provide evidence of a union consultation (which could include a union objection. Remember, the unions do NOT have to approve any petition. They only have the right to be “consulted.”) In your case, USCIS is correct: AGMA is the appropriate union for a “Movement Coach.”

USCIS is also being remarkably inconsistent in processing times, as well. Just this week, I received an approval notice from the California Service Center three days after the petition was filed—and without premium processing! I’m not complaining, but the same service center took over three months to adjudicate a petition I filed in April. More recently, the Vermont Service Center approved a P-1 petition in two weeks, but lost the accompanying P-1S petition I had filed at the same time. This only serves to make an already unpredictable process even more unpredictable. The only thing I can say with certainty is that the “official” reported processing times that you will find posted on the USCIS webpage are about as reliable as a cheesecloth condom!

The best you can do at this point is exhaustively document your petitions, allow lots of extra time, plan for the worst, anticipate USCIS stupidity, and, with any luck and few talismans, be pleasantly surprised. In short, whatever you did in the past, all that changed after January 2014. Welcome to the new visa reality!

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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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agma, approval notice, artist, Brian Taylor, consultations, Goldstein, petitioner, petitions, processing times, rfe, support staff, Tour, uscis, visa petition, visa petitions, visas, work, young artist
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Is Ethics Only In The Eye Of The Beholder?

Thursday, July 17th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

An artist we have been representing for over 10 years just told us that he is leaving our roster and will be joining the roster of another management company. We didn’t have a written agreement, but we’ve never needed one as we’ve always believed that if you act ethically and professionally, others will do the same. While we think the artist is making a mistake, we are not interested in arguing his right to leave and want to make the transition amiable. The artist has agreed to honor our commissions for the dates we have booked. However, the question has come up as to whether we are obligated to give the artist all of the leads and contacts we have been pursuing on his behalf that have not been booked yet. That doesn’t seem fair. We have been working on some presenters for years, have invested a lot of time, and consider that to be our proprietary information. If we turn all of that over to his new manager, that’s just going to be a gift to the new manager who will follow up on all of our work and take the commissions. Are there any laws about this? If I am legally required to turn over all of my work, is there a way I can still refuse unless the artist agrees to pay me?

I’m glad to hear that you are “not interested in arguing his right to leave” as, without a written contract, there is nothing to argue. The artist has the right to leave whenever he wants. As for the issue of the artist’s right to the leads and contacts you have been pursuing on his behalf, even if you had a written agreement, it wouldn’t help you get the outcome you want.

Yes, there are laws that govern this scenario, but be forewarned: you aren’t going to like them.

Legally, anyone who represents someone else (attorneys, realtors, accountants, employees, artist agents and artist managers, etc.) are all considered “agents”. The people they work for are called “principals.” The Law of Agency governs the relationship between agents and principals. While the Law of Agency imposes duties on both agents and principals, for purposes of this discussion, there are four key concepts:

(1) An agent works for the principal and, while the agent can advise the principal, the agent must follow the instructions and directives of the principal.

(2) An agent can never put his or her own interests above that of the principal.

(3) All of the “results and proceeds” of the agent’s work on behalf of the principal belongs to the principal.

(4) Any contractual provision, written or oral, that contravenes rules (1) – (3) is null and void.

In short, when a manager represents an artist, the manager has no proprietary information. In other words, those aren’t your leads and contacts, they are the artist’s. While your leads and contacts may start out as your own, once you contact someone on behalf of an artist, the artist is legally entitled to know anyone you have spoken to on his or her behalf, including the details of such conversation. Moreover, unless there is an agreement to the contrary, the artist is also free to contact anyone directly on his own behalf. While I realize, at the outset, this might seem unfair, bear in mind that the Laws of Agency were designed to protect the agent in that, by complying with such laws, an agent is not liable for the actions of the principal. That’s important if an artist decides to cancel a date or breach a contract you negotiated. It is also important to know that, when entering into a relationship with an artist, the Laws of Agency do not prohibit you from negotiating whatever fees and payment terms you believe will compensation you for your time. You are not limited to seeking commissions on booked dates. Assuming the artist agrees, you can ask for commissions on potential dates as well as confirmed dates, repeat clauses, hourly fees, retainer payments, or any formula or terms that the parties agree to. (Indeed, the time is long overdue to start considering changes to the long standing paradigms and business models between managers and artists that, for many reasons and for all parties, are no longer viable.) However, if all you ask for is commissions based on booked dates, and there is no agreement, written or oral that entitled you to anything else, then there is no right to commissions based on dates “in the works” regardless of how much time and effort you have spent.

Despite a legal requirement to turn all leads and prospective dates over to the artist, you ask whether or not you can nonetheless “refuse unless the artist agrees to pay me.” Sure. You can always just refuse and force the artist either to spend the time and money to sue you, pay you for disclosing the leads and contracts, or sulk away angrily letting you keep what you believe—albeit, incorrectly—is rightfully yours. People refuse to honor legal obligations all the time. In fact, you may yourself be familiar with presenters who cancel dates and refuse to honor full-executed and legally binding engagement contracts claiming such things as “poor ticket sales” or “lack of funding.” Over the years, this blog has been replete with such tales and you can imagine the cries of “unethical” and “unprofessional” that arise from the managers who booked those dates.

You seem to be suggesting that, while you believe in acting ethically and professionally, you are also more than willing to consider acting unethically and unprofessionally if it is to your advantage to do so. I’m all for self-delusion, in fact, its one of my own cherished survival skills, but don’t confuse that with ethics.

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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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agent, artist, artist manager, attorney, breach, Brian Taylor, commissions, contract, Contracts, contractual provision, engagement contract, Goldstein, lawsuit, legal obligations, Liable, management company, payment, poor ticket sales, presenter
Posted in Agents, Artist Management, Contracts, Law and Disorder: Performing Arts Division | Comments Closed

When Is A “Work For Hire” Not A “Work For Hire”?

Thursday, July 10th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

An orchestra commissioned one of our artists to make an arrangement of a work for them to perform. We agreed that it would be a “work for hire.” Now, the orchestra wants to record their performance of the arrangement and has come to us asking for the artist’s permission. It was my understanding that a “work for hire” meant that the orchestra owned it. Is that not the case? If they own it, why are they asking us for permission? If they record it, can the composer still ask for royalties even though the commission agreement stated it was a “work for hire?” What am I missing?

You’re not missing anything. You are absolutely correct that when a commission agreement expressly states that the commissioned work will be a “work for hire”, then the commissioner owns it. In which case, the composer isn’t entitled to anything beyond the commission fee.

Apparently, however, the orchestra doesn’t understand what a “work for hire” means. The orchestra was either using a commission agreement template they didn’t understand or believed that the term “work for hire” meant they were hiring someone to do work. Regardless, playing with templates and “legalese” is like self-medicating—someone always winds up in the ER.

If the orchestra has come to you of its own volition asking for the artist’s permission, then I would offer to grant permission in exchange for a mechanical license or other appropriate royalty. If they agree, then you have just obtained royalties for your artist that he or she would not otherwise be entitled to. Just because the orchestra legally owns the arrangement doesn’t mean that it can’t make a subsequent and legally binding agreement to pay royalties to your artist even though they are currently under no obligation to do so. Would you be taking advantage of the orchestra’s misunderstanding if the rights it already has? Perhaps, but I would submit that keeping any royalty to the statutory minimum and allowing the artist to obtain what should have been negotiated in the first place mitigates the karmic debt. Besides, rationalization and self-delusion are among the vital cornerstones of the arts industry.

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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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, Brian Taylor, composer, Goldstein, license, mechanical license, music, orchestra, permission, royalties, royalty, work
Posted in Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings | Comments Closed

But I Don’t Want To Be A Producer!

Thursday, June 19th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We have booked one of our artists to perform at a venue. As we are the agent, our booking agreements are always between the venue and the artist, and we sign on the artist’s behalf. However, the presenter is insisting that, if we want to sign the contract and receive the engagement fee, as we do, then the contract must be between them and us. Is this correct?

If you are “producing” the artist—that is, you are being paid a fee by a presenter or venue to hire the artist and produce the performance—then, yes, the presenter is correct. However, if, as you say, you are the artist’s agent, then you are absolutely correct and the presenter is…well, confused.

Producers are paid a fee to provide the services of an artist. Typically, the producer will either accept a fee, use a portion of that fee to pay the artist, and pocket the difference; or invest his or her own money to hire the artist, and then keep the box office or other profits from the performance. Either way, a producer accepts a substantial amount of risk in exchange for a greater return. However, merely accepting payment on behalf of an artist, deducting your commission, and then paying the balance to the artist does not make you a producer. It doesn’t matter whether or not you use the word agent or producer in the contract. Rather, it all comes down to how the booking contract is phrased:

X is a Producer:

“Venue X enters into this Agreement with Agent Y to produce and provide the services of Artist Z”

X is an Agent:

“Venue X enters into this Agreement with Artist Z for Artist’s services, by and through Artist’s Agent Y”

Anyone who books a date on behalf of an artist, whether as a manager or as a booking agent, is working for the artist. The artist is your client. In legal parlance, the artist would be referred to as the “Principal” and the agent would be referred to as…get ready for it…the “Agent.” Under the Law of Agency (not to be confused with various state licensing requirements for booking agents—that’s something completely different), agents (ie: someone who acts for and on behalf of someone else) owe a variety of duties to their principals, including duties of loyalty, duties of care, and fiduciary duties. In exchange, agents are not liable for the contractual breaches of their principals, even if the agent negotiated the contract on behalf of the principal. This is important. If the artist decides to cancel at the last minute or otherwise causes damages to the venue or presenter, the agent is not liable whereas a producer would be liable…provided, however, that the agent did not inadvertently make themselves a party to the contract and agree to “present or produce” the artist. A booking contract, then, should always be between the presenter/venue and the artist. As the artist’s agent and representative, you can absolutely sign on behalf of the artist as well as accept money on behalf of the artist. However, the contract is between the presenter/venue and the artist.

I suspect your presenter is either suffering from the “That’s the way we have always done it” disease or the more common affliction of “I don’t know what I am talking about but will insist I am right.” It also could be a fatal case of “We are affiliated with a large university and must abide by arbitrary and inflexible rules that do not apply and no one understands.” Regardless, if they insist on having the artist sign the contract, I really don’t have a problem with that. In fact, in many ways, I actually prefer it as it eliminates the ability of an artist to come back to you later and claim they never approved the terms of the engagement. However, even if the contract is between the venue and the artist, the contract can still provide for you to receive all of the payments on behalf of the artist. Some battles aren’t worth fighting.

_________________________________________________________________

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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agent, Agreements, artist, booking agreement, breach, breaches, Brian Taylor, contract, damages, fiduciary duties, Goldstein, Liable, manager, payment, presenter, risk, university, venue
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Venues | Comments Closed

The Lost Art of Negotiation

Thursday, June 12th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

A longtime friend who is also a very successful artist who I greatly respect, asked me to do a project with him. He sent me a contract, but it doesn’t cover things like when and how I get paid. I want to mark up the contract and suggest some language, but I also don’t want to offend him and have him think I am being too difficult to work with and ungrateful for this opportunity. Is there some specific language I can put in the contract that he won’t find offensive, but will still protect me?

I had a client of mine call me today about a contract she had sent to a promoter who then struck out a specific term that my client needed and sent the contract back to her. Frustrated and desperate to make the deal happen, she wanted me to suggest another way to phrase the term in such a way that the promoter would agree to it. Both you and my client are asking very legitimate questions, but the answers have little to do with contracts and everything to do with business and negotiation skills.

Contracts exist to memorialize an agreement. You can’t memorialize something that doesn’t exist yet. That’s like trying to take a photograph of a place you’ve never been. Before a contract can be properly drafted, much less signed, the parties have to discuss all of the key terms. While you can certainly use a contract to begin the discussion, you can’t avoid the discussion by simply crossing out terms you don’t like and inserting the ones you do. More importantly, there are no magic words, standard terms, or compelling phrases that will take the place of the need to discuss and negotiate.

Too many people in our industry try to use a contract to avoid negotiation—most often for the very reasons you mention: they are too scared of offending the other party, of not getting the terms they need, or of losing a deal or opportunity they really want. However, if you approach a negotiation as a game of deception in which the goal is to use illusive or even deceptively simplistic language or aggressive tactics to cajole the other party into agreeing to something unreasonable or something to your advantage which they would not otherwise agree to (ie: Lawyering 101), then you most certainly should expect the other side to be offended and deserve to lose the deal. On the other hand, if the other party is offended by a legitimate expression of your concerns, sincere questions about a specific term, or proposals that would clarify something you find confusing, then its probably either a deal you don’t want in the first place or a party you don’t want to work with. Just as importantly, if someone doesn’t agree with a term you want, they are not going to agree no matter how you phrase it. Phrasing the same thing in a different way isn’t going to help either. Even if you manage to word it in such a way that they can’t tell what they are agreeing to (what a lot of people refer to as “legalese”), then you’ll have to sue them to enforce it. Instead, you’ll either need to negotiate a compromise or evaluate whether or not the deal is equally advantageous to you without that term.

I have been to many purported lectures on negotiation at arts conferences, only to find that the lecture was really just about how to get presenters to book artists. That’s important, of course, but the real art of negotiation involves far more than discussing date, time and fee. Whether it is a commission, a booking, a production, or a recording, you must discuss and negotiate not just the artistic and logistical elements, but all of those nasty and boring business elements as well—such as liability, insurance, rights, licenses, approvals, exclusivity, taxes, visas, etc. If you are unfamiliar with the necessary business elements of a deal, the time to learn them is before you negotiate, not during the process.

A negotiation does not mean you will get what you want. Rather, a negotiation is a process that allows you to evaluate whether or not you will get what you need. Some opportunities are just that—opportunities—and a good opportunity may require you to accept some risk. But without taking the time to talk and discuss, you won’t have the information you need to access that risk properly. In other words, the negotiation process will save you from disappointment and frustration later on.

As for an answer to your specific question, I would say: Protect you from what? If your “longtime friend who is also a very successful artist who [you] greatly respect” breaches your contract, are you prepared to sue him? I thought not. I suggest you call your friend and ask him when and how you get paid. Don’t ever be scared to ask a legitimate question—especially when dealing with a friend. In the bi-polar cocktail of simultaneous love and resentment we call the arts world, doing business with friends demands an even higher degree of mindful discussion than doing business with strangers.

_________________________________________________________________

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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, attorney, breach, breaches, Brian Taylor, contract, Contracts, exclusivity, Goldstein, insurance, lawsuit, lawyer, license, music, negotiation, presenter, promoter, recording, risk, visas, work
Posted in Acts of God, Agents, Artist Management, Arts Management, Contracts, Copyrights, Insurance, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Presenters, Publishing, Recordings, Taxes, Touring, Venues, Visas | Comments Closed

Licensing Video For A Tribute Show

Thursday, June 5th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We are in production of a new “Tribute” show with a video component. We are grappling with what type of media is public domain or where public domain photos or video can be found. None of the video production companies seem to have a definitive answer. I have been searching for pertinent federal statute that address this issue. Any thoughts?

There’s an old joke where a man encounters another man frantically searching for something in the middle of the street. The first man asks: “What are you looking for?” The second man replies: “My keys. I lost them in the dark alley over there.” “Then why are you looking for them out in the street?” “Because the light is better out here!” Ba da boom.

Like the man in the street, you’re looking for the right thing, but in the wrong place. There is no federal statute that addresses your issue…at least, not directly. If you’re producing a “tribute” show with a video component, then any copyrighted material you want to include in your video will need to be licensed. Any material that is not protected by copyright is in the public domain and is free to use. The question you need to ask then is: how do you tell if material is still protected by copyright? The federal copyright statute will give you a formula, but not the answer. The answer depends on when the copyrighted material was first published. Most often, copyright lasts for the life of the owner plus 70 years. But who is the owner?

The challenge with videos is that you are often dealing with multiple copyrights with multiple owners. Let’s say, for example, that you want to include a video of the original artist (since this is a “tribute” show) performing at a concert recorded in the 1960s. There is a copyright in the video itself as well as a copyright in the music being performed on the video. So, even if you were to determine that the video is in the public domain, the music being performed may still be protected by copyright—or vice versa. We once had an orchestra contact us about creating a DVD to celebrate their 50^th anniversary using old video clips from past concerts. Not only did we (well, to be fair, Robyn!) have to obtain licenses from publishers of certain contemporary works (as well as arrangements of older works), but we needed to obtain licenses from some of the original videographers who still owned the rights to the video footage. (Side note: ALWAYS take the time to get a written license or assignment from anyone whom you hire to photograph or videotape your or your performance—even volunteers!)

Photographs are similar. In every photograph are two sets of rights: the rights to the photograph itself (ie: the negative) and the person being photographed. The photograph itself may be owned by the photographer, but the photographer may or may not own or control the rights to the image or person in the photograph. While a person does not have a “copyright” in his or her own image, they do own rights of publicity, rights of endorsement, etc. So, for example, if you wanted to use a photograph of the famous artist you are paying “tribute” to, you would need to determine whether or not the photograph itself was in the public domain and whether or not you required any publicity or endorsement rights to use the image of the artist. (To make matters even worse, publicity and endorsement rights are controlled by state, not federal law, and can vary from state to state.)

Determining whether or not a photograph is the public domain is just like determining whether or not a video is in the public domain: when was it made? Who made it? Are they dead or alive? Even if the photograph or video is in the public domain, you still need to do a separate analysis of the contents or images on the photograph or video.

While we’re on the topic of “tribute” shows, its also worth mentioning that even if you are lucky enough to find all the videos and photographs you want, as well as the contents thereof, in the public domain, you still need to be wary of using the name and image of the original artist in the marketing and publicity materials of your tribute show. Things like names and even visual elements such as distinctive costumes or a physical characteristic of the original artist can trigger trademark issues that are entirely different from copyright and other rights. The good news is that with enough advance planning and thoughtful analysis, its entirely possible to create the type of video component you want. Many artists and producers successfully do this all the time, often with the blessing of the original artist.

__________________________________________________________________

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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, Brian Taylor, copyright, Copyrights, endorsement, Goldstein, image, images, license, Licensing, marketing, music, orchestra, photo, photograph, photographer, public domain, publicity, video footage, videographer, videotape, volunteer
Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Trademarks | Comments Closed

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Posts Tagged ‘artist’

Plan On It!

When Non-Payment Is A Crime

The Recipe For Confusion

Opening Pandora’s Box

Welcome To The New Visa Reality!

Is Ethics Only In The Eye Of The Beholder?

When Is A “Work For Hire” Not A “Work For Hire”?

But I Don’t Want To Be A Producer!

The Lost Art of Negotiation

Licensing Video For A Tribute Show

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