Posts Tagged ‘enforceable contract’

Don’t Be Late For Dinner

Thursday, January 16th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder,

About six months ago, a venue booked one of my artists and then sent me a signed contract with language requiring the artist to arrive the day before the concert rather than the morning of the concert. The venue was not willing to pay for an extra night of hotel and the artist already has a concert booked the night before, so I struck the language, signed it, and sent it back. The presenter never said anything, but now they are claiming that they never read the contract after I sent it back and are insisting that either the artist arrive the day before or else they will cancel. They claim that this policy is necessary to protect them from a cancellation in case it snows and the artist can’t arrive. The concert is in one month. Are they correct? Do they have the right to cancel?

You had every reason to object to this the language. There are many reasons for an artist to arrive the day before a concert—such as rehearsals, flight schedules, or travel time—but merely allaying the venue’s fears of a weather-related cancellation are not among them. Even if the artist didn’t already have a concert booked for the prior evening, he is being asked to give up what could otherwise be a bookable performance date as well as to incur his own hotel expenses. That’s unreasonable. It’s like inviting someone to dinner, but insisting that they arrive five hours early and wait outside while you cook. However, when you crossed out the language, signed the contract, and sent it back, your actions constituted a counter-offer, potentially rendering the contract null and void.

To make a binding, enforceable contract, all the parties must agree to the same terms at the same time. If one party changes anything in the contract and the other party does not expressly agree to such changes, then the contract is void. This is why, as a general rule, it is unadvisable for one party to send another a signed contract until after all parties have had a chance to discuss and negotiate all the terms. Instead, whoever is drafting or initiating the contract should send an unexecuted draft of the “proposed” contract to the other party. The contract should then be executed only after all discussions, negotiations, and final changes (if any) have been agreed upon.

In this case, you should have contacted the venue and discussed your objections before unilaterally editing the contract or striking the objectionable language. Nonetheless, by not objecting to your changes, by relying on the fact that your artist had scheduled their concert on his calendar, by waiting six months, and, presumably, by advertising and selling tickets to the concert, the venue accepted your counter-offer and the contract became legally binding. As far as their claim that they didn’t notice your changes and just assumed you had signed the contract, that’s their problem. Never assume. Consequently, under the terms of the contract, the artist is not required to arrive the day before, so the presenter has no right to demand that he do so. If the presenter were to cancel at this stage, it would constitute a breach of contract.

While a legal analysis is always only half the analysis, and all reasonable solutions should first be explored, should the venue cancel the engagement, it would be liable for the artist’s full engagement fee. Cancellation insurance would probably have been a simpler and more cost effective alternative.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Your Move or Mine?

Wednesday, June 19th, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: If I am booking an artist, whose job is it to draft the contract? Some venues ask me to send them my contract, but other venues seem to have their own. What’s the normal practice? Since you asked for the “normal” practice, I shall tell you: the normal practice is that some venues will ask you to send them your contract and other venues will have their own. It all depends on the circumstances and the venue. You should always have a basic engagement contract that you can tailor for each artist and send to a venue who wants your contract. However, you should expect larger venues to prefer to use their own contracts just as most venues understand and expect that major artists will insist on using the artist’s contract. It really doesn’t matter as both parties will need to review the proposed contract and, if necessary, proposed changes, additions, and amendments. Its unrealistic to presume that the venue’s contract will address all the issues important to the artist and that artist’s contract will address all the issues important to the venue. Negotiation is not just about date, time, and fee. Negotiations include ALL of the terms which will be in the final contract. What you want to avoid at all costs is a situation where, in lieu of taking the time to review and negotiate a single contract, the manger or agent just attaches the artist’s contract as a rider to the venue’s contract (or visa versa) and the parties proceed. Almost always the two contracts will have conflicting terms which will operate to negate the entire contract, making neither one legally enforceable. (And, no, it doesn’t help to use a rubber stamp that says “in the event of a conflict, mine governs.” That only benefits the folks who sell rubber stamps.) Even more important, regardless of who goes first, is to never ever ever ever ever send anyone a signed contract at the outset. The contract should be signed only after all parties have had a chance to review, make comments, propose changes, attach riders, and agree upon a final version. Otherwise, the party receiving the signed contract will simply strike out or amend the language they don’t like…or, worse, attach a rider…sign it, and return it…which, legally, constitutes a counter-offer and not an enforceable contract. (Actually, it “could” be enforceable, but this gets into complex legal issues which could all be avoided if everyone just sent one another blank contracts and waited until all issues had been resolved before anyone signed anything!) I realize that it takes time to review, negotiate, and amend every contract. However, that’s what contracts are for. It gives each party a chance to make sure that all important issues have been addressed and that there will be no unstated expectations or assumptions. Contracts are not about enforcement…they are about avoiding conflicts and disappointment. Without question, life would be easier if there were standard contracts and terms that worked for every engagement. However, we work in the arts. Nothing is normal and nothing is customary. If you are looking for consistency, go work in a bank. Otherwise, learn to embrace the chaos. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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

Pre-Nuptial Management Agreements

Wednesday, June 5th, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: I just received an email that an artist is leaving my roster for another manger, effective in two weeks. I’ve been working with this artist for over five years. We’ve never had a signed contract because we’ve never needed one. Isn’t it customary to give at least 3 months notice? Also, the new manager is offering to let us keep our commissions on any engagements that are “contracted.” What does that mean? Everyone knows that engagements are often confirmed without their being contracts! Help! Actually, you’ve always needed a signed contract. You just didn’t realize you needed one until now. A contract is your opportunity to memorialize all the terms of a relationship…including how to get out of one. An artist/manager relationship is like a marriage and, when it ends, it’s like a divorce—all too often a bitter and nasty divorce. If there is no pre-nuptial agreement, then any disputes will be resolved by the application of legal rules and concepts. In these situations, such rules are quite basic: what you didn’t negotiate for in advance, you don’t get! Many in our industry like to believe that there exists a magic book of customs, traditions, and rules which govern everything from artist-manager relationships to engagement cancellations, and that, in the absence of a contract, this book will determine how everyone should behave. Nothing can be further from the truth. What may be “customary” for one person or situation may not be “customary” for another. Nor would you want it to be otherwise. The arts and entertainment industry is too diverse, too broad, and too delightfully fluid for that degree of uniformity. To the extent there exists a set of rules which govern relationships in the absence of a contract, such rules consist of the laws of contracts, agency, and a myriad of other legal concepts—all of which are fairly arbitrary and none of which will provide an outcome better than the parties could have devised for themselves through advanced contractual negotiation. Whether its exclusivity, the right to be reimbursed for expenses, the authority of the manager, or the calculation of the manager’s commissions, such issues need to be agreed upon…in advance…and memorialized in a written contract. If you want an artist to be required to give you three months notice before leaving your roster, that needs to be agreed upon and written down as well. (While an agreement does not have to be written to be enforceable, its very hard to prove the terms of any agreement without something in writing—especially when you’re in the midst of a bitter divorce when everyone’s memories will suddenly and conveniently become quite spotty.) In your case, without a written contract setting forth a specific length of time an artist is obligated to remain on your roster (ie: 1 year, 2 years, etc.) and without a requirement that the artist has to give you advance notice before terminating the agreement, then the artist can leave your roster whenever they want with no notice at all. As for the new manager’s offer to let you keep your commissions on any engagements that are “contracted”, this, too, is something that should and could have been defined in an artist management agreement. Otherwise, the definition of “contracted” will be the legal definition: a “contracted” engagement is one where there is an enforceable agreement (either written or oral), which means there has been an offer and an acceptance of that offer and the parties have agreed upon all key terms. While its true that engagements are often confirmed without their being contracts, a confirmation of an engagement may not necessarily constitute a “contracted” engagement. A “hold” may or may not be an enforceable contract. If the parties have agreed upon the date and the fee, it may not be “contracted” if there are other important issues that have not yet been agreed upon—ie: insurance, licensing, technical requirements, etc. In other words, what you consider to be “contracted” may or may not be what the law of contracts considers to be “contracted.” In the absence of a written agreement with defined terms and obligations, your best and most practical course of action is to accept that this is a bit of a mess and enter into a dialogue with your “former” artist and his or her new manager to come up with a mutually agreed upon list of “contracted” engagements on which you will receive your commissions. I can almost guarantee that such a list will have fewer dates that you believe is fair and more dates than your former artist and his/her manager believe is fair. However, if everyone believes they are giving up too much, its probably a fair settlement. Then, focus your time on getting agreements in place for your remaining artists. Pre-nuptial agreements are never sexy, but neither is finding yourself sleeping with the enemy. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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

They Can’t Do That To Me!

Tuesday, October 9th, 2012

By Brian Taylor Goldstein

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

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

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

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

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

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

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

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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