Posts Tagged ‘bookings’

It’s Time To Set Your People Free!

Wednesday, February 3rd, 2016

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

What would be your response to an artist who re-books themselves in venues that an agent previously booked for them? Is that legally allowed? We booked this particular group to a major venue 2 years back and now they have re-booked themselves at this same venue by contacting the presenter directly. I can’t really justify holding the presenter responsible or expect them to remember who they booked an artist through 2 years ago. I have been told by other managers and agents about respecting a “presenter of record”, but what about an artist having to honor the “agent of record”?  

If you have (or had) a contract with this group that gives you the exclusive right to re-book them at certain venues for a specific period of time, then my response would be that the group is in breach of your contract. If you have (or had) a contract with this group that entitles you to a commission from any re-bookings at venues where you originally booked them, then my response would be that they owe you a commission. On the other hand, if there is no contractual obligation for the group either to re-book through you or to pay you a commission, then my response to the group would be “well done!”

Other than the fiduciary obligations and duties imposed on agents and managers who represent artists, and the obligation for an artist to pay for services knowingly rendered and accepted, there are no other legal obligations inherent in the relationship. An enforceable obligation for an artist to re-book only through the original agent or to pay a commission for re-bookings must either arise contractually or it does not exist at all. In other words, concepts such as either “presenter of record” or “agent of record” have no legal consequence or validity. While some might argue these are, nonetheless, inherently ethical or professional obligations, the whole idea that someone inherently “owns” either a presenter or an artist is more of a quaint feudal concept than a practical one for today’s cultural marketplace.

I appreciate that it can be incredibly time consuming and laborious to sell an artist to a presenter or introduce an artist to a new venue. However, presumably you received a commission for doing so. That was your fee. Charge more next time or move on. If you want to require an artist to book only through you in the future or require a commission if they re-book at a venue where you first booked them, then you need to have a contract with the artist that spells that out. However, be forewarned that no contracts (not even the ones I craft!) are self-enforcing. If an artist elects to breach your contract anyway, you will still need to weigh the pros and cons of enforcement. In many instances, suing an artist only results in an un-collectable judgment and a waste of time that could have been better spent booking other artists.

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For additional information and resources on this and other GG_logo_for-facebooklegal, project management, and business issues for the performing arts, visit ggartslaw.com

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

All questions on any topic related to legal, management, 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!

 

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

Showcasing: A Rare Visa Exception

Wednesday, August 28th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

Do non-US artists need artist visas when they come in to perform a showcase at a booking conference? They don’t get paid. Its just to get bookings. In fact, the artists lose money doing this. Can they enter on a tourist visa or do they have to spend even more money and go through the process of getting an artist visa?

Its rare that someone asks us an immigration question where they actually might like the answer…this may be one of those instances.

However, its first always worth remembering that, under current U.S. immigration law, whether or not a foreign artist is required to have an artist visa (almost always either an O or a P) is not related to payment. What triggers the need for an artist visa is performance. Whether or not an artist is paid, whether or not tickets are sold, whether or not the performance is public or private, whether or not the performance is for a non-profit educational or a cultural organization, if an artist performs, and there is someone watching the performance, he or she is required to have an appropriate artist visa.

Except for rare and limited exceptions, an artist can never perform on a visitor visa or, if applicable, under the visa waiver program. One exception is a competition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of participating in a competition where there is no payment other than expenses and a prize, monetary or otherwise. Another exception is an audition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of auditioning or meeting with producers or presenters in the hopes of being hired to perform in the future.

While there is no official codification of a showcase being regarded as an audition, the U.S. State Department in conjunction with U.S. Citizenship and Immigration Services have long taken the position that a showcase is regarded as an audition if it meets the following criteria: The showcase is not open to the public, no tickets are sold or available, attendance is open only to registered members of the booking conference, and the artists are not paid and are responsible for their own expenses. Also, the artist cannot perform any other engagements in the U.S. while on the same trip. In other words, they need to get in, perform the showcase, and get out. If these criteria are met, then an artist may enter the U.S. and perform at the showcase on a visitor visa or, if applicable, a passport issued by a “visa-waiver” country.

Be forewarned: simply calling a performance a “showcase” is not sufficient. Nice try, but that won’t work. If an artist books a venue, sells tickets or otherwise makes tickets available to the public, but allows booking conference attendees to attend free, that is NOT a showcase for purposes of the artist visa exception and the artist will be required to have an appropriate artist visa. Similarly, booking an engagement with a low fee simply because the artist or the artist’s agent/manager believes such engagement will be an opportunity to showcase or introduce the artist’s talents to the U.S. market in the hopes of getting future bookings is also NOT a showcase.

If you believe that you or an artist you represent may qualify for the showcase exception, then, if the artist is traveling on a passport from a “visa waiver” country, he or she needs to travel with a letter from the artist’s agent/manager or, even better, from the booking conference itself, confirming that all the elements of the exception are met. If the artist is traveling on a passport from a “non-visa waiver” country, then he or she will need to apply for a visitor visa at a U.S. consulate, but should bring the appropriate letter with them explaining that the showcase exception applies.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | 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!

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