Posts Tagged ‘lawsuit’

« Older Entries

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!

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

Gambling With Contracts

Thursday, March 17th, 2016

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We had an artist leave our roster who is now refusing to reimburse us for expenses we incurred on her behalf. We charge all of our artists a flat monthly fee to cover expenses, but this particular artist refused. So, we agreed to reimburse ourselves out of her engagement fees in addition to our commissions. We do not have any written agreements with our artists, but we never would have agreed to waive our monthly fees if we though she was going to leave and we were not going to get any further commissions. It doesn’t seem fair. Shouldn’t she at least have to pay us the expenses we incurred on her behalf?  

Should she? Yes. Will she? Probably not. Does he legally have to? No. Could you sue her? Sure. Will you win? Probably not. Will you learn from this experience? That remains to be seen.

One of the most frustrating aspects of practicing law within the performing arts is dealing with the fact that people want to have the protection of contractual obligations without the bother of actually entering into contracts. I recall attending an arts conference where someone commented that what the industry needs is for ethical obligations to have “teeth” such that if a colleague or artist acts unethically, there are consequences. While I cannot disagree that there certainly should be professional consequences for unethical behavior, the flaw with enforcing ethics is that ethical obligations with “teeth” are called contracts.

Contractual and legal obligations are very different from ethical and professional expectations and aspirations. If you decide to enter into a business relationship based on trust or expectation, and someone breaches that trust or expectation, you cannot then resort to a legal or contractual solution where there were no contractual obligations to begin with. (Unless, of course, you have the resources to file frivolous lawsuits.) There are many legitimate reasons to dispense with contractual formalities. However, to do so is a business decision and if you make that decision, you have to live with the legal consequences.

If you ask your artists to pay you a monthly fee to cover your expenses and this artist refused, you could have stood your ground and dropped the artist from your roster. The fact that you decided to make an exception for this particular artist suggests that you felt that the value of having her on the roster outweighed the risk of not getting your monthly expense fee. I understand that your decision was based on your expectation that the artist would remain on your roster. That is all very reasonable. However, the fact that you elected not to have a written agreement setting forth your expectations means you felt the risk was worth it. Otherwise, you would have had the artist sign a contract clarifying that he or she would be responsible for all unpaid expenses should they ever leave your roster.

To be fair, even if you had a signed a contract, it doesn’t mean that it would be easy or even cost effective to enforce that contract. More often than not, the money at stake is rarely worth the time and effort of a legal proceeding to enforce a contract. But at least you would have had an argument. The real value of a contract is not in its ability to be enforced, but in its power—assuming people actually take the time to read it—to force the parties into risk assessment, discussion, and self-reflection. Nothing can ever take the place of your own business savvy and acumen. Until someone finds a new model, it is inherent in the performing arts industry that agents and managers risk the investment of their time and money on the expectation of a return on such investment. How you manage and assess such risk is entirely up to you. Like gambling, you never want to risk more than you can afford to lose.

__________________________________________________________________

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

 

 

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

Understanding Legalese

Thursday, May 28th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

Every time someone sends us a contract, its always a lengthy document with lots of legalese that no one understands. Is there anything wrong with having a simple, one page agreement that everyone can easily understand and will sign?

A lot of people mistake “legalese” for language and terms they either don’t understand or haven’t considered. They see words on a page and immediately assume they can’t possible understand them.

This is legalese:

The party of the first part, which party has previously and hereinafter shall continue to be referred to as the Presenting Party, in and for the mutual obligations, conveyances, and other considerations contained herein, the sufficiency of which are hereby acknowledged, does for itself and on behalf of its officers, directors, employees, agents, and assigns (hereinafter the “Presenting Parties”), which the Presenting Party does herein attest, warrant, and represent that it has the authority so to represent and bind under the terms of this agreement, does herein and hereby concur, agree, and consent to prohibit, prevent, proscribe and preclude, so the best of its reasonable ability, the degree and extent of such “reasonability” to be determined herein as the term “reasonable” is defined in this Agreement hereunder, the recording and/or memorialization through any and all visual and/or audio and/or audio-visual means and methodologies now existing or hereinafter discovered, invented, or devised, including, but not limited to photography, analog and digital sound recordings, videotaping, screen captures, and any other human or machine-readable medium, the performance of the party of the second part, which party has previously and hereinafter shall continue to be referred to as the Performing Party, including, but not limited to, the performance or any portion of the performance of the Performing Party, including, but not limited to, excerpts, samplings, moments, movements, scenes, rehearsals, outtakes, or other manifestations of the performance or any portion of the performance of the Performing Party, for any purposes of any kind or nature, including, but not limited to…well, you get the idea.   

 This is not:

The Presenter agrees to prevent any unauthorized broadcasting, photographing, recording, or any other transmission or reproduction of any performance(s) or residency activity of the Artist, or any part thereof, by any means or media now known or hereafter invented, including, but not limited to audio, visual, or audio-visual means, and including any “archival” recordings, unless the express prior written consent of the Artist has been obtained.

The difference is that the first example uses unnecessary verbiage, poor grammar, and confusing structure. The second example just has a lot of detail. Don’t confuse “legalese” with “detail.” Whereas you don’t want legalese, you do want detail. Why? Because the whole point of a written document memorializing the terms of an agreement (also known as a “written contract”) is to convey information—not just to have a piece of paper that everyone signs.

Too many people want contracts that are “simple” and “brief” so that the parties will sign them, but that’s pointless. Merely having a signed contract does not mean that an engagement won’t get canceled, that commissions will get paid, artists won’t leave, or that any number of nasty things won’t happen to you. Signed contracts are not self-enforcing. If a dispute arises that cannot otherwise be resolved, the only way to enforce the terms of a contract is with a lawsuit. Lawsuits, as you know, achieve nothing other than making trial lawyers ecstatically happy and wealthy. No one in the performing arts can afford that, either personally or professionally. You don’t want to wait until a dispute arises to find out that you and the other party had vastly different assumptions about what was and was not expected and allowed. Instead, you want to make sure that everyone understands all of the aspects of a project or engagement at the outset and, hopefully, can discuss and evaluate the risks, challenges, advantages, obligations, and expectations of the relationship before they agree to it. In other words, you use a contract to educate, not to enforce.

What determines the length of a contract is the complexity of the project or engagement itself. An agreement for a single artist to perform a single recital is going to be shorter than an agreement for an orchestra to perform a world tour. Similarly, an assignment or transfer of all rights is going to be less complex than a recording agreement or an agreement to re-orchestrate an existing work.

Our industry is blessed with amazingly creative and dynamic professionals who are second to none when it comes to creating imaginative collaborations and engaging performances. However, they become slightly less than stellar when it comes to understanding the business and legal arrangements necessary to effectuate these plans. It’s one thing to discuss dates, repertoire, scheduling, and fees. It’s quite another to consider all of the various details, challenges, and misunderstandings that might come into play: will music or other copyrighted materials need to be licensed? If so, whose responsibility is this? Can either party cancel? Under what circumstances? What if someone gets sick or there is a fire at the venue? Who bears the loss of expenses cannot be recovered? Who is responsible if an artist is injured? Who is responsible for someone in the audience gets hurt? Who is responsible if an artist or crew member damages property of the venue? Who is responsible if someone from the venue damages property of the artist or show? Will visas be required for any artist? Whose responsibility is this? Is the engagement fee to be paid in dollars, pound sterling, euros, or other currency? Which exchange rate will apply? Who is responsible for taxes? Are deposits non-refundable?

This is where a contract comes into play. Yes, it takes time to create and read all of this detail. However, a detailed contract can be filled with all sorts of interesting and mutually beneficial revelations. For example, when recently negotiating the terms of an engagement for one of our own artists, I presented our engagement contract to the presenter—which contains a clause, much like the one above, prohibiting any recordings, including archival recordings. The presenter wanted to make an archival recording and assumed, incorrectly, that these were always permitted. We were able to find a workable solution and adjusted the contract accordingly. We also discovered that while the presenter had not factored in meals and transportation into the budget, we had misunderstood when the presenter actually wanted the artist to arrive. We were able to adjust all of these issues, none of which would have been discovered had we not taken the time to think through all of the various details. In the end, it didn’t matter whether or not the contract was even signed because going through the process itself allowed the presenter and I to discuss all of the details. The contract served its purpose.

In short, a more detailed contract that makes people stop and say “wait, I didn’t agree to that” or “what exactly do you mean by this?” is far better than an artificially simplistic one that everyone signs now and then squabbles about later whilst lashing out such cherished and time-worn drivel as “but that’s industry standard” or “that’s the way its always done.”

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, 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, 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!

 

 

Tags:, , , , , , , , , , , , , , , , , ,
Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Insurance, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Presenters, Touring, Venues | Comments Closed

When Happy Cookies Lead To Bad Decisions!

Thursday, January 22nd, 2015

By Brian Taylor Goldstein, Esq.   

We recently had an incident where the Executive Director of an organization that presented one of our artists gave him a cookie with a controlled substance in it at a reception after the performance. Admittedly, the substance was legal in the presenter’s state, but it made the artist (who was young and didn’t think to ask) very ill. The artist recovered and because nothing serious happened, we didn’t want to make too big of a deal out of it because we frequently book artists with this presenter. However, it got us thinking, are we liable if someone injures one of our artists at an engagement?

As you can imagine, while we have the privilege of working with some of the most respected professionals in the arts industry, we are also often confronted with the denizens of the lower fathoms of the gene pool: from the children’s theater who knowingly hired an actor listed on a sexual predator list (because the Artistic Director agreed to “keep an eye on him”!) to a diva who offered an immigration officer sexual favors in exchange for letting her into the US without a visa (cash would have been more prudent!) And now, we can nominate this Executive Director for this year’s award. He or she has demonstrated not merely a lack of judgment, but a lack of common sense at the most basic and rudimentary level, putting everyone at risk.

Offering an artist, or anyone, candy or food containing any substance not reasonably expected to be in food not only constitutes a reckless disregard for safety, but could also constitute criminal negligence. What if the artist had been on medication that interacted with the illegal substance? Or what if the artist had an allergy? Had, God forbid, the artist died as a result, this would have constituted a felony. It has nothing to do about the legality or illegality of the particular substance. Glass is legal, but you can’t put broken glass into a cupcake without a label saying “Warning, this cupcake contains bits of glass.” The fact that the artist was young and didn’t think to ask is also irrelevant. No one, child or adult, is expected to ask: “Excuse me, are their drugs in this cookie?” It’s one thing if someone is allergic to peanuts or is lactose intolerant. More or less, it’s up to them to make the necessary enquiries. However, it’s another scenario entirely if someone is offered aspirin, snake venom, staples, paper clips, or bat wings—all of which are legal substances—masquerading as common baked goods.

It’s great that the artist recovered and was not seriously ill. And I’m not suggesting that you overreact. However, you also can’t simply ignore the situation. Moreover, as an artist representative with a legal, as well as moral and ethical, duty to protect the interests of your artist above all others, which do you think takes precedence: your own, personal and professional relationship with the presenter or the fact that the presenter could have killed your artist? (Don’t answer this. Its rhetorical.)

You are not liable if one of your artists gets injured at an engagement unless you knowingly expose them to a risk, disregard a negligent or dangerous situation, or otherwise fail to exercise a reasonable duty of care. Assuming you or your organization had no reason to suspect that the Executive Director was dabbling in kitchen chemistry, then you would not be liable. However, should you book another artist with this presenter, and should this same Executive Director offer another artist a “happy cookie”, causing another artist to get sick, and you failed to warn your artist in advance not to eat anything, then by disregarding the prior situation, and knowingly exposing your artist to a potentially dangerous encounter, not only would your organization be liable, but you could be personally liable as well.

At the very least, assuming the presenting organization is a non-profit, you should contact the Chairman of the Board and let them know what happened. It would then be the responsibility of the Board of Directors either to fire the Executive Director or take steps to prevent a future occurrence. If the board decides that having an Executive Director who makes terrible decisions is the right person for the post of ultimate decision maker, and this happens again, then not only would the presenting organization be liable, but the individual members of its Board of Directors could be liable as well. Arts organizations, both for-profit and non-profit, should be organizations that foster, encourage, and support the very best and brightest in our industry, not refuges that provide job security to those who simply can’t find employment elsewhere.

_________________________________________________________________

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!

 

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

“Leave Here and You Die!” Unenforceable Non-Compete Agreements

Thursday, November 13th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

The management company where I work has asked me to sign a non-compete agreement saying that, if I ever quit or am fired, I would be prohibited from working as a manager or agent anywhere in the world for one year after I leave. The owner also contends that the names and addresses of all venues belong to him and that I cannot contact any presenters or venue where I booked an artist for him. Do I have to sign this? Is this reasonable?  

You never have to sign anything. Can an employer require an employee to sign a non-compete or be fired? Under certain circumstances, yes. Are the terms you describe reasonable? Hardly. More importantly, even if you signed it, I doubt very much that such an agreement would be enforceable.  

In most instances, parties can use a contract to negotiate and agree to just about anything: how and when artists are paid, how commission are calculated, how rights are transferred or licensed, who files and pays for visa petitions, how royalties are calculated, whether the artist gets still or sparkling water in the dressing room, liability, insurance, benefits, salaries—the list is practically endless. However, there are certain instances—albeit rare—when a contractual term will be rendered void or unenforceable. Such instances include:

(1) When a contract either requires a party to do something which would be illegal or refrain from doing something which they have a legal obligation to do.

(2) When a contract term violates an existing law or policy which courts have decided cannot be altered.

Contracts are governed by state laws. In this case, most state laws (particularly the State of New York) will not enforce a non-compete agreement which a judge determines to be “unreasonable” or “over-reaching”—even if the parties agree to it. Reams and reams of case law have determined that prohibiting an ex-employee from working with current clients of the employer is reasonable, but only for a reasonable amount of time—such as a year or two (sometimes longer depending upon the specific circumstances.) However, unless an ex-employee was also the CEO or President of the company, prohibiting an ex-employer from being able to work in the industry in which they earn a living is considered inherently un-reasonable and never enforceable. Simply put, no employer ever has the right to force an ex-employee to move to a different state, change careers, or be rendered unemployable. If the situation were otherwise, too many employers could use the threat of termination to induce or force employees to sign unreasonable non-compete agreements.

As far protecting the confidential or propriety information of an employer, a court will enforce such an agreement provided the information was confidential or proprietary to begin with. Under the Law of Agency, when someone represents someone else, all information belongs to the person they represent. With regard to the arts and entertainment field, any information pertaining to an artist—engagement agreements, the names and contact information of any venues or presenters a manager or agent has contacted on behalf of the artist, the terms of any engagements under negotiation or discussion, etc—all belong to the artist, not the artist’s manager or agent. Moreover, names and addresses are never “proprietary.” The term “proprietary” refers to something unique created or invented by an employer and specific to that employer—such as the colonel’s secret chicken recipe, internal operating procedures or budgets, mark ups, etc. Simply because a manager or agent writes down the name and address of a venue does not make it proprietary. To be sure, an employee, much less an ex-employee, is never permitted to take the physical property or download the files of an employer. However, if something such as names and addresses can be found elsewhere—such as on the internet, in a published list, or is otherwise publically available—then you are free to compile your own list of such information.

As for not being able to book or contact any venues or presenters where you booked artists for a former employer, once again, whether or not this would be enforceable would depend on the “reasonability” of the restriction. If were are talking about a prohibition against contacting particular venues in a particular region for a reasonable period of time, that would probably be enforceable. However, if enforcement of such a restriction would prohibit you from being able to book any artists at any venues in the United States or world-wide that would never be enforceable.

It’s frustrating enough when an artist leaves a roster—its even more so when a trusted employee quits and takes an artist with them. In a highly competitive and risky business, its understandable that artist managements and agencies are looking for ways to protect their interests and livelihoods. However, draconian contracts, strong arm tactics, and paranoia, though frequently embraced, are never appropriate or productive solutions.

Just because an agreement may be unenforceable does not mean you should sign it anyway. An angry and emotional ex-employer may still try to enforce it, requiring you to spend legal fees and court costs getting a judge to throw it out of court. You never want to enter into any agreement knowing at the outset that it will lead to a lawsuit—even if it’s a lawsuit you believe you will win. Certainly, if you are ever asked to sign such an agreement as a condition of employment, run away. However, if your current employer is insisting that you either sign or face unemployment, and a calm discussion offering reasonable restrictions and alternatives falls on deaf ears, you may have no choice but to run the red light and tear up the ticket later.

__________________________________________________________________

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!

 

 

 

 

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

Whose Lawsuit Is It Anyway?

Thursday, October 30th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

I’m dealing with a presenter who wants to cancel two weeks out due to poor ticket sales. While it’s not a huge engagement fee, my artist has already contracted its performers and paid out expenses for the date as its part of a bigger tour. I have a cancelation clause in my contract and I’ve explained what canceling would mean and that the presenter will be on the hook. However, he still wants to cancel. Its been a rough year and I can’t afford legal counsel. Do you have any suggestions?

At least the presenter is not trying to claim that poor ticket sales constitutes an act of God. While I am familiar with many organizations whose strategic plans require some degree of divine intervention to stay operational, God rarely takes an interest in ticket sales.

If you have a cancellation clause in your contract, then that will govern the legal remedies for the situation. Contractually, the presenter either has the option of either proceeding with the engagement or cancelling and abiding by the terms of the cancellation clause (which, I am hoping, spells out how much the artist is owed in the event of cancellation). If the presenter elects to cancel, but refuses to honour the terms of the cancellation clause, that would constitute a breach of contract…which really just gives the artist the right to sue the presenter, obtain a judgment, and, hopefully, collect the judgment. Whether or not attorney fees, interest, or court costs would also be part of the judgment depends on the terms of your contract as a judge has no authority to awards such costs unless the contract requires them. However, regardless of the terms of your contract, a lawsuit should always be the last resort under any circumstances.

Have you tried discussing with the presenter any solutions for increasing ticket sales or promoting the performance? Does your artist’s shows typically sell at the last minute? Has the artist ever performed in this market before? Don’t presume the presenter knows its own market or how to sell your artist in that market better than you do. You may have ideas for selling tickets that the presenter has not considered.

Is the person you are dealing with the final decision maker in the organization? If not, don’t hesitate to go over their head. Don’t threaten—just do it! If the presenter is a non-profit organization, then even the president or executive director reports to the board of directors. Contact the board president or an officer of the board. Often board members are far less cavalier about breaching contracts than an organization’s administrative staff. Its very possible that the board doesn’t even know about the situation as many presidents and CEOs are quite proficient at keeping their boards on a need-to-know basis.

If the presenter refuses to honour the cancellation clause, resist the urge to scream, threaten anyone’s reputation, or toilet paper the venue. While tempting, those options rarely work and will almost always make the situation worse. Ultimately, the decision as to whether or not to file a lawsuit, along with costs and expenses of filing the lawsuit, belong to your artist, not to you. Regardless of whether or not you signed the contract, if the contract is between the presenter and your artist, then all legal claims belong to the artist and only the artist can file a lawsuit and appear in court. You should not be paying or incurring any legal fees out of your own pocket. Unless you, too, are operating as a charitable institution, if the artist wants to pursue a lawsuit, that is their cost burden to bear, not yours.

__________________________________________________________________

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!

 

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

When Non-Payment Is A Crime

Wednesday, September 24th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

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

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

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

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

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

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

___________________________________________________________________

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!

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

Is Ethics Only In The Eye Of The Beholder?

Thursday, July 17th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

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

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

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

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

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

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

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

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

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

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

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

_________________________________________________________________

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 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!

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

The Lost Art of Negotiation

Thursday, June 12th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

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

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

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

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

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

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

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

_________________________________________________________________

For additional information and resources on this and 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!

 

 

Tags:, , , , , , , , , , , , , , , , , , , ,
Posted in Acts of God, Agents, Artist Management, Arts Management, Contracts, Copyrights, Insurance, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Presenters, Publishing, Recordings, Taxes, Touring, Venues, Visas | Comments Closed

The Hogwarts School of Contracting and Wizardry

Thursday, May 15th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

I had a signed agreement with a promoter to present my artist. The contract provided for two deposits and a final payment on the day of the performance. I worked for over a year with this promoter to put this deal together. Not only did he not pay either of the deposits, but one month before the performance, he called to say he hadn’t sold enough tickets and that it was no longer economically feasible. And he is refusing to pay the money he owes. What am I supposed to do? Sue him? Why should I have to spend the time and money to sue him when we have a signed contract? What’s the point of having a contract in the first place if its not going to protect me?

For many years now I have been climbing the stairs to my secret laboratory trying to create the self-enforcing contract. Upon anyone breaching the terms of such a contract, a magical enforcement beast will materialize, forcing the breaching party into compliance. Sadly, my efforts thus far have proven unsuccessful, resulting only in a few sparks, a bit of ectoplasm still dripping from the ceiling, and a hapless paralegal I may have inadvertently turned into a newt. Until I perfect my spells and enchantments, you’ll have to settle for the fact that contracts are only as valuable as the time, effort, and common sense that goes into them. They do not exist in a vacuum. They do not self-enforce.

The point of a contract is not to get signatures on some form or template littered with extraneous terms that everyone believes are “industry standard”, but no one really reads or understands, in the hopes that it will somehow, in and of itself, stalwartly protect you from the other party cancelling your engagement, refusing to pay, or performing any other courser of unpleasantness. Rather, the point of a contract is the opportunity it creates for you to enter into deals, negotiations, collaborations, engagements, and other relationships knowingly and intelligently. Among other things, it allows you to make sure everyone is on the same page (ie: Do you define net profits the same way I define net profits? Can I cancel if I don’t sell enough tickets?). It allows you to create benchmarks by which you can judge performance and good will (ie: Did the other party pay the deposit on time? Did the check clear?). It allows you to “test the waters” before jumping into a new relationship by first seeing if you and the other party can work together to resolve differences and challenges in the creation of the relationship in the first place.

Sometimes, having a contract can also provide you with leverage. If you can point out that the other party clearly did or didn’t do something which they clearly agreed to do or not do, that pressure alone can often be enough to force compliance. However, if the leverage doesn’t work, you are ultimately left with the sobering fact that the only way to enforce a breached contract is though a lawsuit (or arbitration, if your contract provided for that.) Even then, if you win a lawsuit, you still have to collect the money. A judgment does not automatically guarantee payment. (I’m working on a self-paying judgment, too, as soon as figure out how to change lead into gold.)

The key is not to let the situation get to the enforcement stage in the first place. While some contractual breaches are unavoidable, most are the result of one the parties ignoring warning signs or not taking advantage of the contractual process. For example, a recent client of mine negotiated the terms of an engagement which included the standard items such as dates, time, repertoire, and fees. Everyone agreed. However, when she sent the contract to the presenter, the presenter discovered that the artist expected additional costs to be paid for transportation. My client, on the other hand, discovered that the presenter wanted the artist to obtain insurance to cover all the members of his orchestra. Neither of these topics had been discovered during the initial discussions. Fortunately, both my client and the presenter took the time to read the contract. Even more fortunately, both parties scheduled a time to talk about their respective concerns, worked out compromises, re-drafted the contract, and everything worked out great. Similarly, I was recently negotiation a recording contract on behalf of an artist. When I tried to discuss certain contractual discrepancies and concerns with the other party, rather than engage in solutions, they merely insisted I should trust them and enter into the deal based on “good faith.” That made me trust them even less. My artist really wanted this deal, but I convinced them not to take the risk. In the end, we wound up finding a better deal.

In your case, if your contract provided for two deposits, and the promoter didn’t pay either one, at what point did you not realize that this train was going to jump the tracks? That’s like sending off a contract, not getting a response back from the presenter or manager, having the other party  ignore your phone calls and emails, and the pretending to be shocked to find out the deal is being cancelled…you can’t cancel what was never a deal in the first place. At the time the deadline for the first deposit came and went, that was your time to stop and evaluate whether or not to proceed. If, your professional judgment, it was worth waiting until the second deposit was due, great. However, by the time the second deposit deadline came, that should have been the time to bail. If you decided to rely solely on the contract to protect you, then you were also accepting the fact that if the presenter didn’t pay or cancelled at the last minute, you would have to enforce payment by filing a lawsuit. There are many times that rolling the dice makes legitimate business sense, but you have to accept that for what it is—gambling. Unless you want to incur legal fees and court costs, not to mention lost time, if you gamble and lose, move on.

This is inherently a risky business. Contracts allow you evaluate and, in some instances, minimalize risk, but never eliminate it. Only you can protect you. You and a little pixie dust.

_________________________________________________________________

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!

 

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

« Older Entries