Posts Tagged ‘artist’

Can A Visitor Record An Album?

Wednesday, October 3rd, 2012

By Brian Taylor Goldstein

So glad I found your page on the internet, so far it’s been the most helpful out of all my Google searches! I have just a couple of questions. We are from Australia and I have a 14 year old son who has signed a recording contract in the US. Currently we are traveling back and forward on the Visa Waiver Program. I understand he is not aloud to perform until he has an “O” visa. However, is he aloud to record music in his producer’s studio for the album and take label meetings in the hope of placing a major recording contract? When I say meeting, its meeting with music labels for an interview/audition and you normally have to sing a song so that they can hear you and see if they like you in their office.

First of all, congratulations on the recording contract. Those are NOT easy to come by these days.

The visa waiver program allows citizens of certain countries (with Australia being among them) to enter the U.S. for up to 90 days as a “visitor” without first having to obtain an actual B1/B2 (visitor) visa from a U.S. Consulate. Citizens of visa waiver countries only need to have a valid passport to enter the U.S. as a visitor. When an individual enters on the visa waiver program, he or she is subject to all of the same rules and restrictions as if they had an actual visitor visa.

A “visitor” to the U.S. is allowed to do all of the normal visitor activities (sightseeing, shopping, visiting friends, etc.) as well as have business meetings. Visitors cannot work or look for work. Artists who enter as visitors are allowed to attend competitions and auditions (which, as we all know, is a heck of an amount of hard work!), as well as have meetings with producers, agents, and other arts professionals. However, with limited exceptions, they are not permitted to perform in front of an audience–even if they perform for free and/or no tickets are sold! An artist must have an appropriate artist visa (either an O or a P) in order to perform. When it comes to recordings, there’s a limited exception: A recording artist is permitted to come to the U.S. as a visitor to use recording facilities in the U.S., for recording purposes only, provided the recording will be distributed and sold only outside the U.S., and no public performances will be given. Otherwise, when recording artists enter the U.S. to record albums, they are required to obtain an appropriate artist visa.

In your situation, it is perfectly fine for you son to enter the U.S. on the visa waiver program to meet with his agents, producers, and representatives of his label. He can even have interviews and auditions. However, he cannot record music in his producer’s studio for purposes of a publicly released and distributed album unless it’s for an album that will be sold and released outside of the U.S.

You’re fortunate in that Musical America just released a fantastic downloadable report on the complex issue of obtaining U.S. visas for artists, full of helpful tips and explanations. You’ll also want to check out artistsfromabroad.org which has become the definitive resource tool on the issue and which contains an exhaustive array of information and materials.

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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!

What Are You Trying To Hide?

Wednesday, September 26th, 2012

By Brian Taylor Goldstein

I run a small management company. In addition to our commissions, we bill our artists monthly for their share of expenses (conference fees, publicity materials, etc.) One of our artists is now refusing to pay unless we provide her with an itemization of expenses. Do I have to give her one? In the past, she has always paid and never asked for an itemization before?

Do you have a written agreement with your artists that requires an itemization? I once had a manager contact me with a similar question and she was unaware that the contract she had been using for years required all reimbursable expenses to be itemized. She never did, but a savvy artist eventually called her on it.

If you have a contract that requires you to provide an itemized invoice, then you are required to do so even if the artist has never asked for one before. However, lets assume your contract doesn’t have such a requirement or…perish the thought…you don’t even have a written agreement in the first place. Why not provide an itemization anyway?

Unless you’re trying to hide something, it’s not an unreasonable request. I don’t pay my credit card bill or even a restaurant check without checking the itemized charges first. (Ok, in the interest of disclosure, I don’t do math, so I rely on my wife to check these things, but the point remains the same!) It doesn’t mean someone doesn’t trust you when they ask for an itemization. People make inadvertent mistakes and, in today’s economy, every penny counts.

I realize that preparing itemized invoices requires an additional level of record keeping and bookkeeping, but, presumably, you are already keeping track of your expenses in some fashion. Besides, when representing an artist, whether as an agent or a manager, the artist is your client. They are the ones paying for your services. If you provide an itemization and the artist still refuses to pay for reasonable expenses that were knowingly incurred on their behalf, that’s a different matter. However, in any service oriented business, a happy client is a paying client.

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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!

When You’re Right, You’re Right!

Wednesday, September 19th, 2012

By Brian Taylor Goldstein

I wonder if you would mind giving me some advice on a visa situation with one of my artists. To summarise, I represent a British artist who was commissioned to write a 7 minute piece for a university in the United States which will be premiered in 2013. The artist will be traveling to the United States around the premiere for various events, including attending concerts and also one or two workshops led by the artist. Primarily, the new piece will also be conducted by the artist himself. In the past, this artist has always held an O-1 visa to work in the United States. However, the university is insisting that, because it is a university, the artist only needs a visitor visa and they are refusing to obtain an O-1 visa for him. The university is not only paying the artist for the commission (which has already been settled through his publishers) but for his visit and performance as a conductor. Therefore, I should think we need a visa and that it’s not really possible for him to travel on the visa waiver scheme – is that correct? If so, am I right in thinking that he really should get an o-1 visa as he always has before?

Because so many legal questions involve the application of broad legal concepts to issues of specificity and nuance, its customary to qualify certain answers by saying “it depends.” That is not the case here. Based on the details you have provided, you have made this extremely easy for me: you are correct. The university is wrong. Plain and simple.

Yes, he needs an O-1 visa. No, he cannot enter and perform on the visa waiver scheme. The visa waiver program allows citizens of certain countries (including the UK) to enter the US as visitors solely using their passports and without the need of obtaining an actual visitor visa. However, they are must abide by the same rules and restrictions applicable to all visitors—namely, no work. For artists, work is not defined by payment. ANY performance of any kind or nature, even if no tickets are sold and the artist receives no fee, is, nonetheless, defined as “work” While there are, indeed, certain exceptions, they are very narrow and limited and, in this case, are inapplicable. I suspect the university is relying on a narrow exception that permits individuals to enter the US as visitors in order to give a lecture or demonstration at an educational institution and receive travel reimbursement and an honorarium. However, that is not the case here. Your artist has clearly been “hired” to conduct. The fact that he is conducting an orchestra at a university does not qualify for a visa exception any more than the fact that music is being performed at a university exempts the need for licensing it (though many erroneously believe this to be the case!). The fact that the university may have convinced other artists to perform for them without the proper visa just means these artists did not get caught. Your artist may not be so lucky.

I would direct the university to www.artistsfromabroad.org. Also, Musical America is about to unveil a special visa issue which will be jammed packed full of insights and tips on bringing foreign artists into the US. Stay tuned!

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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!

Smile, You’re On Candid Camera!

Tuesday, September 11th, 2012

By Brian Taylor Goldstein

THIS WEEK’S BLOG IS BEING WRITTEN FROM THE MIDWEST ARTS CONFERENCE IN GRAND RAPIDS, MICHIGAN WHERE ROBYN AND I ARE TEACHING SEMINARS AND WORKSHOPS. HERE’S A SHOUT OUT TO THE INCREDIBLE STAFF AT ARTS MIDWEST!! And now back to our regularly scheduled blog…

We re-booked a popular classical artist to perform at our venue. In promoting the concert, we used a photograph of the artist that one of our staff took the last time the artist performed here. Then we got a nasty phone call from the artist’s manager saying that we could only use “approved” photographs. Is this true? Since we took the photograph in the first place, don’t we own it?

Personally, without some significant costuming and airbrushing available, I hate having my photograph taken. Fortunately, I’m not a public figure who needs to attract audiences or sell albums. However, for those who are, there’s a reason agents and managers want to control what images are used to promote their artists: not everyone looks good in a candid photo. And it’s not merely a question of vanity. Singers and musicians often contort themselves into considerably unnatural—and unappealing—positions to achieve just the right note or sound. How an artist looks during a performance, or even in candid shots taken backstage after a performance or during a donor reception, doesn’t necessarily reflect how the artist wants to be seen professionally. And that’s really the point. At the end of the day, it’s the artist’s decision, not yours.

Just because you took the photograph, doesn’t mean you have the right to use it. Legally, there are two sets of rights inherent in every photograph: the rights of the photographer and the rights of the person being photographed. In order to use a photograph for commercial purposes (which includes marketing and publicity), you need to have permission from both. Most booking contracts require the manager or agent to approve all photographs precisely so that the artist can control their publicity and image, but even if the contract doesn’t require this, you still have no right to use anyone’s image for publicity or marketing without their permission.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

Can I Cancel If They Perform In My Backyard?

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!

Can Newspapers Charge To Quote Reviews??

Wednesday, August 8th, 2012

By Brian Taylor Goldstein

Dear Law & Disorder:

I recently came across the website of an artist management agency in Europe where they had posted the following: “The press review is temporarily not available. German newspapers Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung recently started to pursue institutions and artists using texts (press reviews, interviews, commentaries etc.) published by those newspapers on their websites or in any other commercial context without having paid for them. We have been advised to remove all press quotations from our website as the same phenomenon seems to happen in other countries like Switzerland and Austria.” Is this a copyright trend that will spread to other European countries and the USA? Will agents, and artists have to start paying for the use of (press reviews, interviews, commentaries) used to promote an artists career? Also, if an American agency has press reviews, interviews, commentaries from Europeans newspapers on their websites, such as from the Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung, will these agencies be liable for payment of the use for this information, as well, as it is being used in a commercial context? (Thank you for your column on Musical America, and I also thank Ms. Challener for her leadership in including such information in the weekly email Musical America updates.)

Newspapers and magazines have always owned the exclusive rights to the articles, reviews, editorials, and interviews they publish. Just like you can’t make copies of sheet music, CDs, books, and other copyrighted materials, you cannot make copies of articles and reviews and re-post them without the owner’s permission. Even if you are not “re-selling” an article or review, anything that is used to promote, advertise, or sell a product or service (ie: an artist!) is a “commercial” use.” While “quoting” or “excerpting” a positive review is most often considered a limited “fair use”, making copies of the entire article or review is not. While it should go without saying, you also cannot “edit” or revise articles and reviews in an effort to make a bad review sound more positive. (That’s not only copyright infringement, but violates a number of other laws as well!)

The website you encountered was in response to certain German newspapers, in particular, who began making significant efforts to require anyone who wanted to copy or quote their articles or reviews to pay a licensing fee. In the United States, for the most part, most newspapers and magazines have not actively pursued agents or managers who have quoted articles and reviews on their websites to promote their artists. However, I am aware of managers and agents who have been contacted by certain publications where entire articles have been copied and made available for download. In such cases, the publication has demanded that the copy either be licensed or removed. I also know of agents and managers who have posted unlicensed images on their websites and then been contacted by the photographers demanding licensing fees.

As for the ability of an American agent to quote or copy articles from the Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung, under the applicable international copyright treaties, they could require American agents to pay as well. While I don’t necessarily see this becoming a trend among US publications, its certainly worthwhile to reflect that anytime an agent, manager, or presenter uses images, articles, videos, other materials to promote an artist or performance, there are copyright and licensing considerations that need to be taken into consideration.

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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!

What Attorneys Won’t Tell You

Wednesday, July 25th, 2012

By Brian Taylor Goldstein

I recently attended an arts conference where there was a panel discussion on music contracts. An attorney said that artists don’t really need to read or review contracts because you can always declare them null and void later and get a new contract. Is this true?

This is why 99% of most attorneys give the rest of us a bad name. No. It’s not true. That is, its bad advice. However, there are many attorneys out there who like to believe otherwise.

You may…or may not…be surprised to learn that any attorney with even the most minimal amount of skill can create some plausible “theory” on which to sue someone else. That’s all it takes to file a lawsuit in a US court: a plausible “theory.” Your theory might be the world’s dumbest theory, but everyone is entitled to his or her day in court. And, under what’s called the “American Rule”, unless there is a contract requiring the loser to pay for attorney’s fees and costs, everyone is responsible for their own attorney’s fees regardless of who wins or loses. So, unless you and I have a contract requiring the loser in a lawsuit to pay the winner’s attorney’s fees, I could technically file a lawsuit against you right now (assuming I knew who you were) and you would have to spend your own money to defend it. (If you don’t like the “American Rule”, blame George Washington. The “English Rule”, of course, is the exact opposite!)

Because of this situation, many attorneys believe that the answer to every conflict is to file a lawsuit and use that as leverage to get a better deal. The argument goes something like this: If an artist signs a contract and later wants to get out of it, just file a lawsuit claiming that the other side is in breach. Even if the artist has absolutely no legal basis for such a claim, the other side will need to hire their own attorney, file a motion, appear in court, and have the claim dismissed. As this will cost them thousands of dollars, the other side just might re-negotiate with rather than spend all that money. Here’s the catch: the artist will ALSO have to spend all that money hiring an attorney to file the lawsuit in the first place. And if you think that a large recording label, or a successful producer, or even a presenter with access to a free board attorney is simply going to roll over to avoid a lawsuit, think again. Why? Because their own attorneys will advise them to fight.

There’s another consideration, too: your reputation. One of my clients once received a letter from an attorney who represented an artist who was part of my client’s roster. Even though his contract was not up for another year, the artist wanted to be released early so he could negotiate a potentially lucrative deal directly with one of the producers we were already working with on his behalf. His lawyer raised several legally weak arguments and threatened a multi-million dollar lawsuit. After several efforts to resolve the matter ended in screaming phone calls and more threatened litigations, we decided to release the composer, even though, ultimately, I felt we would win in court. It simply wasn’t worth it. My client had other artists and business to focus on and could afford neither the money nor the time and distraction. While you may conclude that the artist got what he wanted and won, think again. There’s more: of course, we had to advise the producer that we no longer represented the artist and what had happened. As a result, the producer determined that the artist’s talents were not worth the risk of dealing with someone who sues their way out of a dispute and selected another artist for the project. It wasn’t long before word spread that this artist would sue anyone at anytime and other producers refused to work with him either. In the end, the artist’s lawyer wound up suing the artist for unpaid attorney’s fees. Not a happy ending.

If you haven’t figured out the game yet, an attorney will always advise you to file a lawsuit. However, regardless of the outcome, only the attorneys win. So, unless you have an endless supply of money, energy, time, and spirit do not play this game! Take the time to draft meaningful contracts, take the time to read them, and take the time to establish a relationship with the people you will be working with. You may not always get what you want in a negotiation, but at least you can make an informed decision by asking questions and evaluating the pros and cons of the deal before you. While there are many reasons you might agree to unfavorable terms, believing that you can sue your way out of a bad situation is not among them…unless you’re an attorney!

__________________________________________________________________

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!