Posts Tagged ‘force majeure’

What Are Contracts for?; Non-Profit By-Laws Made Simple; Are Union Strikes Force Majeure events?; Artist Visa Updates

Wednesday, June 7th, 2023

LAW & DISORDER

Performing Arts Division

June 7, 2023 

INSIDE THIS ISSUE:

• What Are Contracts For? 

• Non-Profit Laws Made Simple 

• Are Union Strikes Force Majeure Events? 

• Artist Visa Updates

 

Legal Issue of the Month:

What Are Contracts For??? 

It’s no secret that a vast expanses of artists, venues, managers, presenters, and agents prefer to have engagement contracts with all the “fun stuff” (dates, fees, travel, repertoire, etc) confirmed and signed on the front and the “terms and conditions” left alone, shunned, cold, abandoned, and forsaken on the back. Such “terms and conditions” are often dismissed as “just all the legal stuff” or “the legalese” or “stuff we had a lawyer draft for us years ago and we have no idea what it means, but we can’t change it.”

First, whether it’s the time of the sound check, 4 bags of raspberry Haribo gummy bears the Artist wants in the dressing room, or the number of comp ticket, everything put in a contract becomes “legal stuff.” Second, though, indeed, boring (even for me), the “legalese” typically addresses important issues such as whether or not the venue can make an archival recording and what they can do with it, rights and licenses, cancellation terms and conditions, who’s responsible if someone gets injured, what constitutes force majeure/Acts of God (remember how everyone suddenly started reading those for the first time during COVID?), and other issues that everyone ignores until something goes horribly wrong, at which point they all start arguing over what they assumed these terms meant.
A contract in and of itself will not protect you. Contracts are not self-enforcing. There is no scenario in which a signed paper talisman with the right magic words will allow you to sleep embraced in the amble bosom of self-delusion that everyone will do what they are supposed to do, people will not act in their own self-interest and still claim the moral high-ground, and nothing can go wrong. Signatures do not guarantee that dates will not get cancelled even if the contract specifically says it is non-cancellable or even that you will get the fee everyone agreed upon.
If a date gets cancelled or you do not get paid, your signed contract merely becomes a coupon redeemable for a lawsuit to enforce it. However, are you really going to sue anyone? Is there such a significant amount of money at stake that it’s worth the cost and time, financially as well as emotionally? Are you willing to subsidize a trial lawyer’s $11,000 Japanese NEOREST toilet just for the self-satisfaction of proving a point? Do you ever want to work with that venue or artist again?
So why bother? What are contracts for?
Contracts are for managing expectations, both your own and the other party’s, by spelling out ALL of your concerns and requirements (not just the “fun stuff”) before music is composed, airline tickets are purchased, or recordings made. Contracts are for discovering and discussing unexpressed assumptions. Contracts are for planning and assessment. Contracts are for reading and discussion. Contracts are for knowing what the other party is and is not willing or able to do, and then deciding whether you can compromise or whether you are willing to proceed and accept the risks. Contracts are for starting a conversation and ending in a relationship.
If you’re just tossing unread papers back and forth through Docusign so you or your contract administrator can tick that box off the list, don’t complain when the artist trashes the dressing room and refuses to perform upon failing to find their gummy bears. 

Dear Law and Disorder:

Actual questions we get asked and the answers people actually don’t want

“Non-Profit By-Laws Made Simple” 

Dear Law & Disorder:
We are forming a non-profit. Can you recommend a good template for by-laws? We just want to keep it simple so we can get it set up right away and get started. We’ve already got some people willing to donate as well as serve on our board.
Aside from an outhouse erected on a popsicle stick over a tidal bore, non-profit institutions are, perhaps, the most precarious and dysfunctional of all structures ever conceived within which to conduct business. Without a strong set of by-laws, carefully and thoughtfully crafted to address your unique mission, stakeholders, goals, and challenges, your non-profit is likely to perish from such commonly fatal non-profit diseases as Foundersitis, Administrative Staff Infection, Systemic Committee Infarction, Micromanageitis, Consultant Dependency, Strategic Streptococcus, and Gangrenous Board Members.
Your by-laws are the foundation upon which your organization will be built. They determine how your non-profit is structured and managed. They will describe the roles, expectations, duties, and responsibilities of board members. It will set forth how decisions are made and conflicts resolved. At the same time, like strategic plans and business plans, by-laws are not commandments fixed in stone. They will provide a steady hand of direction within a flexible mechanism for addressing growth, challenges, and situations as they arise. In other words, whilst by-laws do not require a constitutional convention, they are also not something to be crafted with speed and indifference.
Assuming you are serious about forming a sustainable business and not merely hoping to circumvent having a viable business plan by hoping to supplement your income through a quick influx of donations and grants, you should gather as many different samples of by-laws from as many different organizations that have similar missions as yours. Analyse them to see how the successes, failures, and experiences of other organizations may apply to your own. Remember, when forming a non-profit, it is the board members who will ultimately control and run the organization, not you. So, just because someone wants to donate money does not mean they should also serve on the board. Ideally, those persons who are already willing to serve as your initial, founding board members should also be interested and committed enough to assist you in the process of crafting the by-laws.
Whether you are forming a Children’s Vuvuzela Choir or the Wilma Schiddy Centre for the Arts, simplicity kills the soul—or, in this case, a non-profit. 

 

Breaking the News!

Are Union Strikes Force Majeure Events? 

When concerts and performances started falling during COVID, it sent everyone into a delirium over whether, how, when, why, if a pandemic constituted a Force Majeure event allowing an engagement contract to be cancelled without penalty. As no one was happy with answers, everyone began re-drafting their contracts to deal with future pandemics.

Hollywood’s current Writers Guild of America strike has spotlighted yet another hidden Act of God: labour strikes. Many “standard terms and conditions” give a party the right to cancel a contract in the event of a labour strike. This means that if you are engaged to perform as a soloist with an orchestra and the orchestra goes on strike, the orchestra can terminate your engagement contract without penalty. This can apply to any situation where a union strike might impact the resources needed to fulfil a contract—such as booking an event at a university-based venue and the teacher’s union goes on strike or being booked to perform and your sets and props cannot be delivered due to a trucker’s strike. Imagine my own surprise when, as a person whose wife had to show him how to change the windshield wiper fluid in my car, I woke up one day as a member of an adjunct faculty and also found myself a member of United Auto Workers…which then went on strike!

You can read more about this issue HERE

 

Artist Visa News & Nausea 

• The Status of Proposed Petition Fee Increases.
There have been no new updates from USCIS regarding its proposed fee increases and other changes. Whilst our crystal ball remains cloudy, the runes tell us to expect “some” changes, we just don’t know when or to what degree. In the meantime, all fees remain the same and there remain no limits to the number of beneficiaries that can be listed on O-2 or P petitions.
• COVID Vaccinations Are No Longer Required To Enter The US
Effective May 12, 2023, the Biden administration lifted the requirement that non-US citizens and non-US residents have COVID vaccinations to enter the US. However, ye who enter here will continue to be required to abandon all hopes.
• No More Passport Entry Stamps
Also this month, US Customs and Border Patrol (CBP) confirmed that it will be implementing “stamp-less entries” for everyone arriving in the US. This means that when you enter the US on a visa, you will no longer receive a physical stamp and handwritten notation in your passport. Instead, your date of entry, your visa status, and the date by which you must leave will hereinafter ONLY be recorded on a digital entry/exit form called an I-94 which will ONLY be available on-line at the CBP I-94 Website .
Whilst CBP has been recording entry/exit information on digital I-94 forms for several years now, CBP officers continued to stamp passports. As it was not at all uncommon for the information on the I-94 to be incorrect, having a physical stamp meant that before you left the airport you could check and confirm that all of your information was correct. Now, for example, if you have a visa that expires on June 30, but the I-94 says May 30, you will need to leave by May 30 regardless—but you won’t know that a mistake has been made in your record unless you dash to the I-94 website as soon as you leave the immigration area and make sure your I-94 is correct. If it is not, you will need to find the CBP officer lurking betwixt the Cinnabon and Chick-Fil-A and ask them to correct it.
• There Is Nothing Graceful About US Visas  
…and speaking of entries and exits, please note that there are no automatic “grace periods”—10 days or otherwise—added before or after the validity dates of a visa. There never have been. This has always been a myth—or, at least, mischaracterized. When an individual enters the US, CBP officers have the discretion to allow them up to 10 extra days to remain in the US as a tourist. However, it is the burden of the visa holder to make the request to a CBP officer upon entry to the US. The extra dates are not automatically given.
If the officer approves (and they usually do), the approved extra days MUST be reflected on the I-94. So, if you want to claim the 10 extra days: (1) You must request the extra time; (2) the CBP officer must approve the request; and (3) the additional days must be reflected on your I-94 entry/exit form. However, as discussed above, as entry/exit information will henceforth only be recorded digitally, you will need to check the I-94 website before you leave the airport to make sure the extra days are reflected on the I-94. Otherwise, even if the officer verbally approved the extra days, you will be required to leave the US by whatever date is listed on the I-94.
The better practice is that if you know you or your artist plan to hang around after your show to attend the Toadlick County Monster Truck Mash-Up and Watermelon Bake-Off, just add those extra days onto the visa petition so your visa will be valid for the full time you want to be in the US. You can always still ask for the extra days on top of that to get even more extra time.
• Current USCIS Service Centre Processing Times:
Vermont Service Centre:      Standard processing: 6 – 8 weeks
                                              Premium processing: 9 – 10 days      
California Service Centre:    Standard Processing 3 – 4 months
                                              Premium Processing 13 – 14 days

 

 

Deep Thoughts

“Try not to focus too much energy on whether you can trust someone else. When a bird lands on a branch, it doesn’t trust that the branch will never break. It trusts its ability to fly away if it does.”

Anonymous

 

 

 

Send Us Your Questions! 

Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

 

OFFICIAL LEGALESE:

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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

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Posted in Acts of God, Contracts, Law and Disorder: Performing Arts Division, Non-Profits, Uncategorized, Unions, Visas | Comments Closed

Artist Visa Updates, Force Majeure Clauses, Streaming Licenses, and Deep Thoughts

Thursday, December 8th, 2022

 

LAW & DISORDER

Performing Arts Division

December 8, 2022

 

INSIDE THIS ISSUE

> Artist Visa Updates <

> Force Majeure Clauses <

> Streaming Licenses <  

> Congratulations! <

> Deep Thoughts < 

Artist Visa Updates 

• Current USCIS Service Center Processing Times

Vermont Service Center:

Standard Processing: 4 – 6 weeks

Premium Processing: 9 – 10 days

California Service Center:

Standard Processing: 2 – 4 MONTHS!

Premium Processing: 13 – 15 days!

•  Most US Consulates continue to experience significant backlogs with regard to visa stamp appointments. Some have no interview appointments for 60 – 90 days whereas others are granting interview waivers, but with no consistency between one consulate and another. Please factor this in when making bookings and budgets. In other words, if your conductor isn’t performing in the US until April 2023, but has only set aside 2 days in early January when he can make himself available to apply for a visa, start looking for a guest conductor. Specific information for each consulate can be found on that consulate’s website…and except for citizens of certain countries, anyone can apply for a US visa stamp at any US Consulate.

•  As of August 11, 2022, USCIS no longer requires petitioners to submit a duplicate copy of Form I-129 or a duplicate copy of any supporting documentation unless USCIS specifically asks for it. (Whilst I’d like to think this was to diminish the impact of deforestation on climate change, it’s more likely due to the fact that Sauron has discontinued his policy of allowing USCIS to toss its extra paper into Mount Doom.)

•  USCIS has issued a new edition of the I-907 form. Starting January 30, 2023, USCIS will only accept the 11/03/22 edition. There are no changes. It’s the same form with a different date at the bottom. However, accomplishing this critical assurance of national security required two filibusters, three Congressional hearings, and an armed insurrection at the Golden Corral in Bent Fork, Arkansas which dared to close its Sunday buffet an hourly early.

•  Yes, it is still possible to obtain artist visas for Russians. So long as they can get to a U.S. consulate, there are no bans or restrictions on Russians. The challenge is that there are no US Consulates in Russia, some EU countries will not allow Russians to enter, and the EU won’t allow any Russian planes to fly over its airspace. So, they just need to get to a consulate. If they are already in the EU, then they get to face the same visa insanity as everyone else.

Legal Issue of the Month:

Force Majeure Is Not The Same as Cancellation

If an engagement contract contains no option for cancellation or termination, then it cannot be cancelled or terminated without mutual consent. Otherwise, whichever party cancels will be in breach and potentially owe damages to the other party. Parties can always negotiate cancellation clauses under which either party can cancel an engagement under certain circumstances and by paying cancellation fees; but, if they don’t, they remain forcibly conjoined.

However, Force Majeure/Acts of God clauses are something different. These are contract clauses which say that if something happens beyond the control of either party (typically, fire, flood, illness, royal demise, etc.) which makes it impossible for one of them to honour the contract, then that party can void the contract without owing damages or fees to the other. In other words, whereas a cancellation clause may require a party to pay bail to cancel a concert, a Force Majeure/Act of God clause is like a “get out of jail free card.”

Parties can use a contract to define exactly what constitutes Acts of God (ie: a hurricane as opposed to a backed up toilet, illnesses supported by a doctor’s note, etc.). However, because of COVID, the economy, and genera insecurity, we are seeing more and more instances of parties trying to squeeze cancellation penalties or payments into Force Majeure/Act of God clauses. Presenters are claiming that poor ticket sales or lack of funding should be considered God’s fault whereas artists are claiming that if even if the concert hall is overrun by zombies, they are entitled to non-refundable deposits and penalties if the venue cancels. While parties should take every opportunity to explore and negotiate cancellation clauses with as many draconian conditions as they could possibly want, these are not Acts of God/Force Majeure clauses.

Why is this anything other than a miniscule, legalistic subtlety? Because if a party cancels an engagement contract because of a legitimate inability to present the engagement that could not otherwise have been foreseen, a court will not enforce penalties or damages regardless of what the contract says. Moreover, most state and local municipalities (particularly colleges and universities) are prohibited by State Law from having to pay non-refundable deposits or fixed cancellation fees, regardless of the reason for the cancellation. So, like everything else, if you believe the only force that separates your orchestra from insolvency is divine intervention, you’re going to need to talk this one through.

Dear Law & Disorder:

Actual Questions we get asked and the answers people don’t want! 

Streaming Rights & Licenses

Dear Law and Disorder:

We have two questions with regard to live streaming some of our concerts and recitals. We, of course, have paid the ASCAP and BMI licenses/fees to cover the rights for live performances. Does paying those licenses for live performances also cover streaming the concert live? The other issue involves archiving the recordings of the concerts, or leaving them on the website for a time after the concert so patrons (e.g., parents of students or any other interested parties) can view the concert at a later date if they had a conflict the day of the original concert and were unable to watch it live. Would this practice also be covered by the licenses or fees we’ve already paid? Is this a grey area in which the law has not yet caught up with the technology, or would this practice be a violation of copyright?

ASCAP and BMI are two of the many Performing Rights Organizations (PROs) which issue licenses to present live performances. Whilst some licenses for live performances also cover the right to stream the concert live, others do not. As with all rights, you only get what you ask and/or pay for. So, if your license also included the right to stream live concerts, then your license covers that. On the other hand, if you only paid for live concerts, then it does not. You need to check the license terms and agreement you received from ASCAP and BMI. (However, not all composers/songwriters below to ASCAP or BMI, so you may need licenses from other PROs as well.

With regard to the issue of “archiving the recordings of the concerts”, the good news is that it is not a grey area at all. The bad news for you may be that it is not a grey area at all. Making any audio or audio/visual recording of a concert is not covered by PROs at all. Such rights must be obtained from the performers and, unless they are performing their own, original music, the right to record the music must be obtained directly from the composer/songwriter or their publisher. There is no “inherent right” to make a recording of any performance or composition at any time under any circumstances for any purpose without the permission of (a) the composer/songwriter of the music and (b) the performers themselves.

CONGRATULATIONS! 

It is with exhilarating enthusiasm that we congratulate Monica Felkel, a legendary icon of the classical music and performing arts industry, on the establishment of her own boutique management and consulting firm.

Monica Felkel Creative Partners provides Artist Management, Artistic & Strategic Consulting, and Project Management & Development.

 

“Everything we do is guided by a passion for classical music and the performing arts and a commitment to providing each artist and cultural institution with the support, guidance, expertise, and innovation they need to achieve their artistic goals and aspirations.”
Monica J. Felkel, President

We look forward to working with her and her distinguished roster of creative partners in offering her clients a comprehensive range of services and expertise unparalleled in the field.

CLICK HERE LEARN MORE ABOUT MONICA FELKEL CREATIVE PARTNERS

 

Deep Thoughts 

 

 

“Everyone seems normal, until you get to know them.”

 

 

Send Us Your Questions! 

Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

 

OFFICIAL LEGALESE:

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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

 

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Posted in Contracts, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Uncategorized, Visas | Comments Closed

The Response of the Performing Arts to the World Premiere of the Coronavirus

Wednesday, March 4th, 2020

By Brian Taylor Goldstein

Let’s all step back and take a breath for moment.

As you can imagine, the coronavirus has overrun (dare I say “infected?”) our office with an ever growing stream of cancellations based on force majeur and concerns from venues, presenters, agents, and artists from around the world. As the situation has continued to develop (dare I say “spread?”) so rapidly, we have so far focused solely on dealing with issues on a case-by-case basis rather than take on the task of posting any advice or updates which might be outdated in 2 days.

However, as cancellations are becoming more frequent and more likely, we have increasingly begun to receive questions from all sides about what does and does not constitute a legitimate force majeure cancellation and who is responsible for lost income and covering expenses. While not at all unreasonable concerns, we get the sense that people are “preparing for battle” rather than accepting the reality of a shared crisis in which we all find ourselves. For instance, we have been told:

  • That no one can call off a concert unless the U.S. government “officially” declares a pandemic. (That’s unlikely given the regime’s current position that this can all be resolved through the power of prayer alone.)
  • That venues are “legally” required to educate their audiences not to be led by fear and racism. (Since when? I missed this in law school.)
  • That artists should not be allowed to cancel unless they come from the specific part of a country where there have been cases. (So it doesn’t matter that an audience is not going to come to see a South Korean artist regardless of what part of Korea they have just arrived from?)
  • “They cancelled a month ago, before there were any outbreaks, so they shouldn’t be able to get the benefit of that now!” (So, the fact that they wound up making the right decision is irrelevant?)
  • “The coronavirus cases in their state is not anywhere near where their venue is located!” (Do you live there? Are you planning on going to the concert yourself?)
  • “Airlines are still flying to the U.S. from that country, and the artist is willing to be quarantined, so the venue cannot cancel!” (So, just because someone has found a way to break into my house, I have to let them stay so long as they promise not to cough in my face?)

And I JUST heard an idea being tossed about of adding a Force Majeure “penalty fee” clause to contracts. (Why stop there? Why not a public shunning?)

Without a doubt, and not in the least to dismiss the gravity of potential, if not, devastating financial losses throughout the performing arts, these arguments miss the point. Everyone is facing difficult decisions and financial loss—and not just in the performing arts.

Whether you are anticipating a cancellation or it has already happened, you should take the following immediate steps:

STEP 1: Review Your Contract

Most contracts will actually spell out the situations that allow for a Force Majeure cancellation, including what the parties are and are not responsible for.

STEP 2: Prepare Martini (gin, slightly dirty, extra olives)

STEP 3: Discard Your Contract and Accept Reality

The legal concept of Force Majeure or Act of God anticipates situations where one or both of the parties to a contract cannot meet their obligations due to something outside of their control and which could not have reasonably been anticipated. A fire in the venue. An artist gets sick. A snowstorm closes an airport. Etc. However, there does not have to be a physical impediment to the performance for a performance contract to be permissibly cancelled due to a force majeure. Does a theater have to actually burn all the way down? Can the artist insist that they are still willing to perform on what’s left of the smoldering stage? What if the artist is sick, but not dead? Can the venue insist that the artist be dragged on stage with a portable oxygen tank?

At present, in the case of a new virus that has spread internationally and was previously unknown, while an official government declaration or ban on travel would certainly make things simpler, that is by no means a requirement. In just two months, we have long been overtaken by circumstances justifying both venues and artists to declare a force majeure for any number of reasons, including:

  • A show involving artists coming from or who have recently been to an infected area.
  • Travel restrictions or quarantine requirements imposed by a state or local government in the the U.S. and or any country in the world that might impact the ability of an artist or group to leave their own country and/or enter or leave the U.S.
  • An artist from one part of the U.S. traveling to another part of the U.S. where cases have been reported.
  • Venues deciding to close out of abundance of caution.
  • An artist wishing to cancel to avoid exposure or to avoid being trapped inside or outside the U.S. should official travel bans start to be put in place.

On their face, these are all a reasonable. Conversely, it may, in fact, be unreasonable for someone to insist on a performance taking place where there was even a “reasonable” risk of putting an artist or audience in harm’s way. If God (and/or Goddess and/or the universal cosmic energy) forbid, someone were to get sick, this could raise significant issues of liability for negligence.

The reality is that we are all facing the same situation (and our own office is no exception) which, without a doubt will impact some more than others. There are already several universities who have cancelled classes and performances out of an abundance of caution. Some venues in the U.S. have informed artists from China, Iran, South Korea, Japan, Italy, and Hong Kong (and that list will most certainly grow) that they will not be allowed to enter the venue for 14 days after arriving in the U.S. Others around the world have either imposed similar restrictions or closed completely, including major opera houses and concert halls. Are these decisions going to impact travel costs, tour dates, lost engagement fees, lost commissions, and even risk an artist exceeding a visa validity period? Of course.

However, even if you believe a cancellation is unreasonable or even if it goes so far as to violate the terms of the contract, what then? Raise contractual and legal arguments? Send snippy and condescending emails? Bring in a lawyer? Sue? While there are almost always legal arguments and threats one could through at any situation, doing so with regard to anyone’s response to an unknown and spreading virus which is causing world-wide fear and confusion is not merely delusional, but will certainly trigger ethical, professional, and PR concerns that will haunt you far beyond any lost income.

While not all of these will apply to everyone in every situation, here are some practical suggestions for dealing with an actual or threatened cancellation due to the coronavirus:

  • Anticipate and prepare financially for losses;
  • Explore options for mitigating losses, such as refundable tickets, cancellation policies, and the risks and liabilities of not cancelling sooner rather than later;
  • Listen to the fears and concerns of all parties;
  • Entertain any and all reasonable alternatives to a cancellation, such as checking constantly for updates from the CDC or WHO, as well as reaching out to local health and public safety experts either in the location of the performance or in the location from which an artist will be traveling.
  • Entertain any and all reasonable proposals to share losses, taking into consideration a fair, honest, and truthful assessment of who is in a better position to bear them;
  • Consider the professional and ethical considerations of pressing an argument, making demands, or simply acting like a jerk;
  • If a deposit has not been paid, consider it no longer due. If a deposit has already been paid, apply it towards actual, non-refundable expenses (such as airline tickets, rental fees, etc.) and return the rest; and, of course;
  • Try to re-book the date.

In addition, here are some websites with calm, cool, and well-thought advice, including suggestions of how to prepare and what to consider:

www.artsready.org

www.americanorchestras.org

However rightly or wrongly you may think someone’s decision may be, and how deeply you fear the effects on your own economic health, this is not the moment to judge, argue, or act impulsively. Rather, now is the moment to test the performing arts industry’s so oft-toted (and even more often self-proclaimed) reputation for being able to support one another in surviving a time of crisis and to coalesce as a community in working towards a greater and larger mission. I know you can do it without suing on another!

…And now, to throw some bleach on my keyboard and sage the office!

____________________________________________________________________________

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

THE OFFICIAL LEGALESE:
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, Law and Disorder: Performing Arts Division, Uncategorized | Comments Closed

Can A Union Walk Away With My Contract?

Tuesday, November 29th, 2016

By Brian Taylor Goldstein, Esq.    

Dear Law and Disorder: 

Is it legal that a presenter can put “strike, lock-out or other labor controversy (including, without limitation, the picketing on the theater by representatives of any labor union having or claiming to have jurisdiction over theater’s employees” into a force majeure clause? I mean, it doesn’t seem fair that an artist that is ready, willing and able to perform should be held “hostage” to a theatre who cannot strike a deal with its stagehands, right? I can’t believe this is a commonly accepted practice. Surely, holding out for a better contract (on either side) is a willful action and the responsibility of those parties to solve so they can fulfil their commitment to the artist, yes?

When you ask “is it legal” do you mean “is it a crime?” No. Assuming you’re not taking out a contract on someone’s life, then anything two parties negotiate and agree to in a contract is perfectly “legal”

Is it common? Absolutely, particularly with professional theaters or any large presenters or theaters who have collective bargaining agreements with various performing arts unions—such as most major orchestras and large concert halls and performing arts centers. In fact, I’ve never seen an engagement contract with a major orchestra or presenter that didn’t have such a clause.

It is appropriate? In my mind, yes. If union stagehands or artists make unreasonable demands and walk out, that’s not always the theater’s or orchestra’s fault. On the other hand, compromise on the party of either party is not always a reasonable possibility at the outset. Neither party should be held “hostage” to the threat of a breach of contract to compel one side or the other to agree hastily to an ill-advised collective bargaining agreement. Regardless, a union or labor issue is almost always a force majeure event. I even include that in my own contracts.

Another consideration is that if the artists you represent are themselves a member of a union—such as a musician who is a member of AFM—then, as a union member, they will be prohibited from crossing the picket line regardless of what the engagement contract says. Indeed, I had a group that had been hired to perform with a major orchestra last year and tried the same approach you a posited—they presented themselves at the stage door claiming that they were ready, willing, and able to perform. However, it turned out they were also AFM members and AFM said that they may be ready and willing, but were not “able.”

Is it fair? That depends on how you feel about the role of unions in the performing arts. I will say this: I have seen just as many artists shoot themselves in the foot as I have presenters try to pass off the losses of their own mismanagement and poor business planning onto their artists. And I know from my own experience that artists are not always their own best representatives in the marketplace. Nonetheless, I, for one, have never believed that the Arts are well served by the same “winner take all” approach that one finds in other industries.

Do you have to agree to it? No. You never have to agree to anything you think is unfair or unreasonable. If the issue is important enough to you and your artist, you can always either walk away or try and negotiate something all parties can accept. Just like a union.

________________________________________________________________

For additional information and resources on this and other legal, 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.

__________________________________________________________________

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, Contracts, Law and Disorder: Performing Arts Division, Unions | Comments Closed

The Divine Right To Cancel

Thursday, February 12th, 2015

By Brian Taylor Goldstein, Esq.   

We were in the process of booking one of our singers with an orchestra, when we encountered the following Force Majeure clause in the orchestra’s contract: “If, as a result of any event beyond the control of the Orchestra, including, but not limited to, war, national calamity, strike, labor relations, lack of funds, poor ticket sales, or other Acts of God or force majeure of any kind or nature, Orchestra determines it necessary to suspend, cancel, or terminate the giving of any of the performances specified herein, then the Orchestra, in its sole discretion, shall have the right to do so by giving notice to the Artist. Upon such notice, the Orchestra and Artist shall be relieved from any further obligations under this Agreement without any liability of either party to the other for any damages arising from such suspension, cancelation, or termination.” We asked if they would strike the reference to “lack of funds” and “poor ticket sales”, but we were told that their contracts must be approved by their board of directors and, as such, nothing can be changed. Have you encountered this before? Do you have any advice on how to respond?   

Telling someone that a contract cannot be changed because their board of directors says it can’t be changed is the equivalent of a parent telling a child “because I said so.” As I am frequently reminded when faced with the manifest irrationalities of my own parents: do not engage and back away.

I actually don’t doubt that the orchestra’s board of directors did, in fact, suggest and recommend such language. It’s just the type of thing a poorly formed board of wealthy corporate donors with no actual arts experience would come up with. (It brings to mind an occasion when I was called in to consult with a board of directors who was insisting that no season could be planned or programmed unless the artistic director was willing to guarantee exactly how many tickets would be sold to each performance!) Regardless, such language is absurd and quite frankly, insulting and unprofessional.

It is absurd because, as I have previously written, a force majeure clause is supposed to be limited to events truly beyond anyone’s control: floods, snowstorms, terrorist attacks, etc. Ticket sales and funding are not determined either by serendipity or the intervention of divine energies (though I often suspect many strategic plans are based on such notions.) I find it insulting and unprofessional because the orchestra’s board of directors is trying to obfuscate a cancellation provision under the pretext of a force majeure clause. By defining force majeure to include “lack of funds” and “poor ticket sales” the orchestra is attempting to give itself the luxury of being able to cancel at any time for any reason with no liability or consequence. Contractually, this would render the Agreement terminable at will by the orchestra and, thus, meaningless for the Artist.

As a compromise, I would propose amending the force majeure clause and adding to the agreement a proper cancellation clause whereby, if the Orchestra felt that it needed to cancel due to “lack of funds” or “poor ticket sales” then they would have the right to do so by paying a specific, pre-determined cancellation fee. If the orchestra refuses such a reasonable alternative, then I would simply thank the orchestra for its time and walk away.

I realize, of course, that, in practical terms, artists are not always in a position to walk away. Just like good art always requires risk, occasionally this applies to deals and negotiations as well. Perhaps the artist is young and needs engagements. Or perhaps the engagement presents an artistic or resume-building opportunity to the artist. Those might be reasonable reasons to take a risk. However, such risky transactions must be entered into with eyes wide open as opposed to wide shut. As the artist’s manager, it falls to you to make sure the artist understands the risks and that both of you understand that, should the orchestra avail itself of its contractually unfettered right to cancel, you will accept that and, whilst reserving the right to swoon, sway, and cry foul, resist the temptation to threaten a frivolous lawsuit.

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

What’s The New Normal In Contract Practice?

Thursday, March 20th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

What’s the new “normal” in reviewing and exchanging contracts? We are receiving an increasing number of contracts that had been issued as PDF files coming back as word files or even revised PDF files which means I have to read every single line of the agreement (along with an original version open beside it) in order to approve what is essentially a new version of the instrument we painstakingly crafted. Isn’t the presenter obligated to sign what we send or at least tell us they are amending our contract? We scratching our heads trying to understand what constitutes the “new normal” in contract practice.

I am the last person to proclaim what is and what is not “normal”. Normal is boring. Normal lacks imagination. Normal is not what the arts are all about. Nonetheless, when it comes to contract practice, many people in our industry continue to look for rigidity in a process that is intended to be quite fluid.

When you send a contract to another party, regardless of how brilliantly or painstakingly crafted the contract may be, you are sending them a “proposal” of the terms for their review. After all, unless you’re working within the structure of a pre-negotiated collective bargaining agreement, negotiating the terms of an engagement is not merely about agreeing on the date, time, and fee.   Everything about the engagement is negotiable as well: insurance, force majeure terms, technical requirements, warranties, licenses, recording rights, approvals, publicity restrictions, exclusivity, cancellation, taxes, visas, etc.

While, as a general rule, a contract should never be presented until both sides have at least agreed to all of the most important terms, there are bound to be additional terms and requirements that were not discussed—and even if they were discussed, chances are the wording or phraseology in the contract may or may not comport with a party’s understanding of what was agreed upon. The contract is the way to present and memorialize all of the additional terms that are important to the engagement, but may not have been clearly discussed at the outset. Many people call all of these additional term “legalese” or “boilerplate” terms, but, remember, nothing is standard…everything is negotiable. Even if you find yourself in the enviable position of being able to say “take it or leave it”, no one is ever obligated to agree to anything. As a result, unless you have somehow managed to discuss and agree upon each and every term ahead of time, the presentation of a contract is often how the negotiation continues, not ends.

Both professional courtesy and common sense would suggest that, before anyone starts making contractual amendments, the party proposing or requesting such changes should bring them to the other party’s attention either by highlighting them or discussing them ahead of time. While marking up a contract with handwritten comments has long been the practice, technology makes it relatively easy to take a PDF, format it into an editable word document, and make changes. However, most word processing programs also allow you to “compare” two documents. So, rather than having to painstakingly read every single line of an agreement, you can just as easily ask your word processing program to compare the old and new versions and it will automatically highlight all of the changes for you.

Personally, because my handwriting often looks like a headless chicken ran through a puddle of ink, I love being able to make changes and edits directly to the text of a contract. However, I then use my word processing program to compare the old version with my version, rename the document, and send it to the other party with all of my proposed changes clearly marked. I also like to add a watermark that says “draft” on each page. Its only when all the terms have been agreed upon by all the parties that is time to remove the watermark, PDF the document, and get everyone to sign it.

________________________________________________________________

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

Rattle Sabers, Not Contracts

Thursday, February 27th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

We recently had a presenter call us and cancel an engagement “due to inclement weather” because the company’s flight was canceled and they could not arrive the day before the performance as required. The company offered to fly the next day and arrive on the afternoon of the performance.  However, the presenter expressed that they were not comfortable with this because they felt the company would not arrive at the theater in time to run a tech with their team and also had the fear that the company would not arrive in time to perform. The engagement contract has a Force Majeure clause that says:

In the event that the performance of any of the covenants of this agreement on the part of the Company or the Presenter shall be prevented by…act of God, illness, physical disability, acts or regulations of public authorities or labor unions, labor difficulties, strike, war, epidemic, interruption or delay of transportation service, or any other causes beyond the reasonable control of such party, such party shall be relieved of its obligations thereunder with respect to the Performance(s) so prevented on account of such cause.  If the Performance(s) shall be prevented due to a Force Majeure event, neither the Company nor the Presenter shall be under any obligation to present the Performance at a different time, except that if the Performance(s) shall be prevented for any of the foregoing causes, the Presenter shall use its best efforts to re-engage the Company within a twenty-four (24) month period on the same terms and conditions set forth herein, subject however to Company’s availability…In the event that the performance is cancelled due to Force Majeure on the Artist’s behalf, all deposit monies will be returned to Presenter. In the event that the Presenter cancels the performance for any reason other than those described in the preceding paragraph, then the Presenter is responsible for the full fee.

Do we have to return the deposit since the company was willing to fly in the next day, but Presenter decided to cancel anyway? Can we ask for the full fee? We have not yet spoken to the Presenter, but wanted to be forearmed before we do so we can stand our ground.

“Forearmed” for what? Has the Presenter asked for the deposit back? Are you planning on initiating this “battle”? A contract is a tool, not a weapon to be rattled like a sabre. If you approach this as a “battle”, here’s how it will likely play out:

Presenter: Great to see you at APAP. Thanks for the drinks. I’m afraid we’re going to need the deposit back because the artists couldn’t get here due to weather. The force majeur was theirs.

Manager: But they were willing and able to come the next day. You didn’t want to take that risk. So, you cancelled. In fact, you owe us the rest of the performance fee. And, thanks for the birthday card. That cat was adorable.

Presenter: It’s industry standard for the deposit to be returned when there is a cancellation due to weather.

Manager:  But you cancelled and its industry standard that the artist gets paid if the presenter cancels.

Presenter: The company’s flight was cancelled because of the snow. That’s a force majeur.

Manager: The weather prevented the artist from arriving the day before the concert. They could have arrived on the day of the performance. You didn’t want them, so you cancelled and the contract says if you cancel we get to keep the deposit and you owe the full fee.

Presenter: But that’s not industry standard

Manager: It’s what’s in the contract.

Presenter: We were forced to cancel the performance and refund the tickets, which didn’t sell that well anyway. I just didn’t want to say anything about that earlier because of our good relationship. We can’t take those kinds of losses. We are a non-profit.

Manager: The artist had losses, too.  And if you weren’t selling tickets, then you should have told me sooner so I could help with the marketing. If you had marketed better, the show sells itself.

Presenter: No show sells itself. Did I mention we are a non-profit?

Manager: We can’t give the deposit back and the company can’t afford to take a loss on this tour. It’s not their fault it snowed.

Presenter: It’s not our fault either, which is why we need the deposit back.

Manager: I spoke with an attorney and we will have to turn this over to legal counsel if we have to. It not personal.

Presenter: I understand. This isn’t personal on my end either, but we have a free attorney on our board and they will sue you to get our money back…and I won’t ever hire any artist on your roster again.

Manager: Fine

Presenter: Fine

…and scene…

Unless you are dealing with the cancellation of the road tour of “Spiderman”, neither of the parties will…or should…be willing to spend the money, time, and energy necessary to sue each other, so they will just stew over this, avoid each other at conferences, and write nasty things about each other on social platforms.

The point of having an engagement agreement, or any contract, much less as force majeure clause, is to identify problems ahead of time and articulate in advance how disputes will be resolved. In your case, based on the engagement agreement, both parties knew that, in the event of snow or other unforeseeable issues, either could be facing losses they might not be able to recover. A force majeure operates like an “excuse.” It gives each party the right to cancel under certain conditions without having such cancellation become a breach. However, because it isn’t a breach, neither party is going to emerge unscathed. Someone is either going to have lost out-of-pocket costs they can’t recover, or a deposit they can’t get back, or both. However, knowing this, hopefully, allows you to budget and plan for various eventualities.

In this scenario, the phrase “due to Force Majeure on the Artist’s behalf” isn’t really defined. However, a reasonable interpretation is that the cancellation of the artist’s flight constituted a force majeur event on the part of the artists—in other words, it was their flight that was cancelled. The fact that the artists were willing to travel on the day of the performance was a reasonable solution, but it was just as reasonable for the presenter not to want to take that risk. The more important issue is that the engagement agreement requires the presenter to use its “best efforts” to try and re-book the date within the next two years. That’s the first place to start. If you can find a mutually agreeable date, problem solved—you keep the deposit and they presenter pays the balance of the fee after the next performance date. (No, you can’t ask for a higher fee if it’s the same performance!) If you can’t find a date within the next two years, then its reasonable for the artist to keep the deposit, but the presenter not to have to pay the remaining fee. “Reasonable” doesn’t mean that everyone will agree or be happy. “Reasonable” usually means that everyone walks away with less than what they wanted, but more than there were probably entitled to, which, for me, is a much better solution any day than mutually assured self-destruction.

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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, Non-Profits, Presenters, Touring, Venues | Comments Closed

Not Even God Can Act Without A Contract!

Wednesday, November 14th, 2012

By Brian Taylor Goldstein, Esq.

No sooner had Super Storm Sandy begun crashing into the East Coast when my phone started ringing with cancellations. The most common question went something like this: “The presenter needs to cancel, but they already paid a deposit. Do we have to give it back? What the protocol?” The second most common question went something like this: “We booked an artist and paid a deposit. We’re being evacuated and need to cancel. Can we get the deposit back? Naturally, I always ask to see the contract. As I suspected, in almost each case, while the contract contained an Act of God clause, it merely stated that either party could cancel “in the event of an Act of God.” In an effort to “keep things simple” the parties also kept their contracts fairly worthless!

In essence, an Act of God provision in a contract (also sometimes called “force majeure” is a contractual provision which permits one party to cancel or breach the contract without having to pay damages or incurring any liability to the other. So, if an Act of God forces an artist to cancel, he/she is not liable to the venue for the venue’s lost ticket sales, lost out of pocket costs, or the costs of hiring and advertising another artist or performance. Similarly, if the Act of God forces the venue or presenter to cancel, it is not liable to the artist for the artist’s lost fees or out of pocket costs. However, nothing in the arts is ever that simple! Many people, incorrectly, assume that there is a common understanding or standard of Acts of God and that, in the event of a fire, blizzard, flood, or other unforeseen event, there are automatic protocols which will govern the situation. In fact, you will find that presumptions and assumptions differ wildly when it comes to Acts of God and that people, in the midst of a crisis, tend not be at their most rational. I’ve had presenters argue that poor ticket sales were Acts of God or that the death of an artist’s mother didn’t mean that the artist herself could not perform. I’ve also had an artist claim that an unexpected opportunity to perform at a better venue was an Act of God entitling her to cancel. I even know of a manger who claimed that the failure of his artist to obtain a visa was an Act of God and the artist should still receive her full fee even though she could not legally enter the US!

While no contract can even contemplate every possible scenario, you want your Act of God clause to do more than simply state that “either party can cancel “in the event of an Act of God.” Rather, you want your clause at least to provide some basic definitions and parameters: Let’s assume the venue is open, but the artist cannot get there due to a storm. Does the artist have to reimburse the presenter for any of its lost marketing expenses or costs? If the artist had already received a deposit, does it have to be returned? What if it’s the presenter’s venue is flooded, but the artist is ready, willing, and able to travel and perform? Does the presenter have to make a good faith effort to re-book the artist at a future date? Can the artist keep any deposits or advanced payments to offset the cancellation? Can an artist use an Act of God Force clause to cancel an engagement due to the death or injury of a family member or relative? Can a venue claim an Act of God if it experiences an unexpected budget shortfall or a financial crisis? What if the engagement is for a series of performances and a fire, storm, or flood forces the cancellation of only some of the performances? Is the artist’s engagement fee reduced on a pro-rata basis? What if the artist is a group and a member becomes sick or injured? Does the group have the option to find a replacement or can the venue claim an Act of God and cancel? Does it make a difference if it’s a key member of the group?

As I frequently like to remind everyone, in the arts world nothing is standard and everything is negotiable! Anyone who tells you otherwise, just wants you to do things their way. However, while there is no legally enforceable list of standard protocols or procedures which governs how things are “supposed” to happen in any given crisis, I’d like to believe that relationships are more important than contracts and, ultimately, what you are entitled to may be less important than what you have to offer.

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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