Posts Tagged ‘risk’

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Termination For Convenience

Thursday, April 28th, 2016

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I recently received the following clause from a performing arts venue in a contract they sent:

TERMINATION FOR CONVENIENCE: Either party may terminate this Agreement at any time upon written notice to the other party. If this Agreement is terminated before the performance, the University shall have no obligation to pay Artist. If this Agreement is terminated during the performance for any reason other than the Artist’s breach of this Agreement, the University shall compensate Artist on a prorate basis. 

I told them that, in my mind, this makes the contract virtually worthless.  They came back with this: 

TERMINATION FOR CONVENIENCE:  Either party may terminate this Agreement at any time upon written notice to the other party. If this Agreement is terminated before the performance, the University shall have limited obligations to pay Artist, as defined below. If this Agreement is terminated during the performance for any reason other than the Artist’s breach of this Agreement, the University shall compensate Artist on a prorate basis.  Under no circumstances will either party be liable to the other for indirect, consequential, or incidental damages, including but not limited to anticipatory profits. The University may from time to time, under such terms and conditions as it may prescribe, make partial payments and payments on account against costs incurred by the Artist in connection with the terminated portion of this contract whenever in the opinion of the University the aggregate of such payments shall be within the amount to which the Artist shall be entitled hereunder. 

I feel that I wouldn’t be doing my due diligence as a Manager to sign this, but it’s a very important venue to me and I do quite a bit of business with them.  But I think this is unconscionable. Am I wrong?

“Unconscionability” implies a certain level of moral indignation is generally unwarranted in a simple engagement negotiation. The venue is merely proposing terms that are in its own best interest, not demanding that you sacrifice a sack full of kittens! If acting in one’s own self-interest were unconscionable, then most artists would have an incalculable amount of karmic debt. However, you are quite correct that the terms they are proposing are unfair to your artist. I’ve seen more and more presenters and venues trying to give themselves the unilateral right to cancel. I get it. Times are tough. Tickets are hard to sell. But it’s unreasonable and unfair to expect an artist to bear the entire loss of a cancellation. The venue’s proposed compromise is basically to reimburse the artist for any out-of-pocket costs, but not to pay the artist for the lost performance or the fact that the artist may have turned away other engagements. That’s not exactly what I would call an equitable compromise.

Regardless, the point of a contract is not to provide some false sense of security or protection, but, rather, to enable the parties to identify any issues that need to be negotiated, evaluate the pros and cons of a deal, and determine whether or not to proceed. In this regard, this contract has proven to be extremely valuable in that the venue has made it quite clear that they want to have the right to cancel without consequences. You have done your due diligence in reading and evaluating the contract. Now comes the hard part. What to do? You need to determine whether or not to engage in further negotiations, to accept the venue’s terms and sign the contract, or walk away and find another engagement. Ultimately, the decision is up to your artist. Your job as the Manager is solely to evaluate and advise your artist.

All art requires risk. The performing arts business requires a certain amount of risk as well. As the Manager, its your job to help your artist evaluate reasonable risks from unreasonable risks. Obviously, I don’t know enough about your specific artist or the specific venue to render an opinion. However, I can tell you that what is completely irrelevant to the analysis is whether or not the venue is important to you and whether or not you do “quite a bit of business with them.”  As a Manager, the focus of all managerial decisions must be what is best for your artist, not you. Is the venue particularly prestigious or important to the artist? Is the fee is particularly large? Does the engagement offer your artist a particularly advantageous opportunity? Then it may be worth advising the artist to take the risk. Otherwise, the artist should decline the engagement. The impact of the artist’s decision on your own relationship with the venue, past or future, is beside the point.

If your ongoing relationship with the venue is more important to you than the relationship with your artist, then you should drop the artist. I have often heard Managers say that artists come and go, but venues are forever. However, I don’t necessarily believe this. In my experience, if an artist is popular and in demand, and especially if an artistic director wants the artist, the presenter or venue won’t care if the artist is represented by Satan himself.

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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!

 

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

Dodging A Bullet With A Contract

Thursday, March 31st, 2016

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

I am a classical concert pianist and booking representative for my small ensemble. I just finished the negotiation of a performance contract with a presenter and, unfortunately, we could not reach an agreement. In my three years of working as a self-presenting artist, it was the first time when a contract became an issue. To summarize the situation, I didn’t agree to sign the presenter’s one-page contract because it didn’t have any terms dealing with such things as cancellation or the date we would be paid. So, I provided my own, more detailed, contract. I also provided a technical rider for such things as piano tuning and how much space our group needed to perform. The presenter claimed that their contract was “standard” and that they engage lots of artists and that no manager or artist had ever objected to their one-page standard contract. So, I offered to propose changes to their contract instead, but then withdrew their offer to engage us, saying that we were obviously too hard to work with and that they had dodged a bullet. Quite a number of series send us one-page agreements and some of them react with frustration when I present a more detailed contract. I start to have a feeling that maybe while I am building my network, I have to play by the rules of the presenter and just hope that everything should be OK. However, in some ways it contradicts what I have learned from reading your blog. It also doesn’t help if its true that most managers are happy to sign these simple contracts creating a way out for a presenter to say: “we never had a problem with our one-page contract” before.

I’d like to say that these are the perils of dealing with small, unsophisticated presenters. But, alas, you have stumbled into one of the dark corners of the entire performing arts industry: at all levels it’s a business run by people who prefer to pretend it’s not a business until someone doesn’t get what they want and then they will all pretend to be experts on business contracts.

In your case, the presenter’s claim that other artists or managers may or may not have had a problem with their one page contract should be disregarded for several reasons: (1) it may or may not be true; (2) many artists and their managers are so happy just to get an engagement that they are happy to sign anything; (3) many artists and their managers often know less about contracts than presenters; and, most importantly, (4) nothing is “standard”. As for your suggestion that you have “…to play by the rules of the presenter and just hope that everything should be OK”, I disagree.

A career in the arts and entertainment in inherently based on risk. So, yes, there may be instances where an engagement or an opportunity presents itself and you may just have to take a risk. However, you can’t make this your standard policy. You need to be judicious. The only way to evaluate the risks and advantages of any offer or opportunity—whether it is an engagement or a recording contract—is through the contract process. You may not always be in a bargaining position to get what you want, but the process itself can be vital. Even if someone refuses to agree to a specific request or a contractual you may propose, that information in and of itself can be essential in helping you evaluate whether or not proceed. However, any presenter or venue that won’t even take the time to discuss your concerns should be avoided.

Nevertheless, while its fantastic that you have taken the time to devise your own contract and technical rider, you also need to know your audience. Its very different to negotiate with Carnegie Hall that it is with a group that operates out of a church basement with a broken upright. If you don’t want to unnecessarily scare off unsophisticated presenters and venues, there are things you can do to make sure your concerns are being addressed without having to send a formal contract with a rider. One approach may be just to send an email or a list confirming your specific concerns. Or you can avoid email altogether and have an actual conversation. Remember, a contract does not have to “look” like a contract. At the end of the day, its less about the wording and format than communicating your concerns, expectations, and clarifications. In short, it doesn’t mean you have to be less flexible in what you need, but more flexible in how you communicate it.

Ultimately, I think you were the one who “dodged a bullet” on this.

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For additional information and resources on this and other legal, project management, and GG_logo_for-facebookbusiness 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 Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Presenters, Venues | 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!

 

 

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

Who Has To Pay The Likes of ASCAP, BMI, Etc?

Thursday, February 18th, 2016

By Brian Taylor Goldstein, Esq.   

I haven’t found an example that matches the situation of a 501(c)(3) I am familiar with. They throw a once-yearly art festival that spans a weekend (2days). They don’t charge the public any admittance. They raise money by charging fees for booth (10×10) spaces for (visual) arts vendors to sell their merchandise. They raise money for: their operating expenses, student art scholarships, member art scholarships, honoraria for program presenters at meetings, a fund for a permanent “home” for the 501c3 where they can hold meetings and store various gear for the meetings between times. They also have an open air music stage at that festival where local musicians perform. The musicians are paid under $150.00 for a 2 hour performance that includes 5 minutes each for set-up, a break, and stage clear-off. Most, but not all of the pieces performed are written by the performers. The “audience” is anyone who wanders by and stays to listen for a while. So, who, if anyone, has to pay fees to the likes of ASCAP, BMI, etc.?

It sounds like the 501(c)(3) organization in your scenario is trying to raise money for some very admirable and worthy goals: art scholarships, arts education, and even providing a place for local musicians to perform. In fact, these goals sound so worthy that I’m sure you wouldn’t object to the organization using your house for meetings or taking your car whenever they needed it to transport students to art classes, all without your permission and without paying you any fees. While you might be more than willing to donate your home or car on occasion, my suspicion is that you’d at least like to be asked first. As a general rule, the involuntary donation of other’s property without their permission—even if it’s for a really good cause—is also called “stealing.”

A musical composition—just like a home or a car—is considered property. It is no less valuable—indeed, I would argue, it is of greater value—than anything else you are required to pay for that has a physical price tag attached. A musical composition belongs to the composer who wrote it and/or the composer’s publishing company. Under U.S. Copyright Law, whoever owns a musical composition also has the absolute right to control and determine all uses of the property—this includes the right to perform the music live, record the music, play a recording of the music for the public, change the lyrics, make arrangements, or just about anything else you can think of to do with music; including the right to determine whether or not to donate the use of the composition for a worthy cause or project.

This means that any time a musical composition is performed live or a recording of the composition is played—whether it’s at a theater, concert hall, or out-door street festival (for-profit or non-profit)—“someone” needs to obtain the composer’s permission and, in most cases, pay a usage fee called a “Performance License.” ASCAP, BMI and SESAC are not roving bands of brigands waiting to pounce on unsuspecting non-profits who are merely trying to promote the arts. Rather, these organizations are trying to promote the arts too—primarily by reminding people (including other artists) not to take music for granted as a valueless commodity. ASCAP, BMI, and SESAC are organizations that represent composers, issuing performance licenses and collecting fees on their behalf.

If musicians are performing original music they composed themselves, then they can certainly agree to perform their own music for free. That can be a condition of hiring them to perform in the first place. However, if a musician or band is playing (“covering”) music composed by others, then just because the musicians agree to perform for a reduced fee, or even for free, doesn’t mean that the composers have allowed their music to be performed for free as well. A performance requires a performance license.

As for whose responsibility it is to obtain the necessary license, its legally everyone’s responsibility. If an unlicensed song is performed at a festival (even a free festival), then the U.S Copyright Act allows all the parties involved in arranging the performance—the artist as well as the venue or festival, and sometimes even the promoter, producer, or booking agent—to be liable for copyright infringement. So, while you could require the musicians to obtain their own licenses with regard to any music they are performing which they have not composed themselves, in my opinion that is a foolish policy. Why? Because most musicians will simply not bother and elect to take the risk of not getting caught. However, if they do get caught, it is the venue or festival who will be liable as well. It doesn’t matter that the festival may have required another party to obtain the license. That simply entitles the festival to sue the other party. The festival itself will remain liable to the composer.

So, in your case, while there are a number of factors that can determine the cost of obtaining performance licenses—the size of the venue, the price of tickets (or lack thereof), the number of performances, etc.–ultimately, it’s in the festival’s or organization’s best interest to ensure that the necessary permissions and licenses are obtained. While it might be tempting to proceed under the expectation that no one will get caught or the publishers and copyright owners will not sue small artists or struggling non-profits, that’s the same as robbing a bank and hoping the police won’t find you. Not to mention, in an industry where so many purport to operate under the noble purpose of promoting the value of art and artists, I can’t imagine the rationalization of stealing it for any purpose, regardless of how noble.

__________________________________________________________________

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!

 

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Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Venues | Comments Closed

The Damaging Truth About Cancellation Damages

Thursday, March 12th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

A presenter wants to breach our engagement contract by cancelling. Our cancellation clause says that, in the event of cancellation, we get 50% of the engagement fee or actual damages. They are offering 50%, but at this stage want the full fee.

If you have an engagement contract that has a cancellation clause, and a presenter cancels, then the presenter is not breaching your contract. A contract breach only occurs when someone fails to do something the contract requires (such as pay a deposit) or does something the contract does not permit (such as record a performance). In this case, if your contract has a cancellation clause, then you have given the presenter the right to cancel. So long as the presenter complies with the terms of your cancellation clause, then they are not in breach. They are merely exercising the right you gave them to cancel. If you don’t want them to cancel, don’t give them the right to do so.

According to your cancellation clause, if a presenter elects to cancel, they have to pay you either 50% of the engagement fee or actual damages. However, your actual damages may or may not be the full engagement fee. To determine whether or not you are entitled to the full engagement fee, you first have to calculate your “actual damages.” Actual damages are simply that: your actual out-of-pocket losses from the cancellation of that particular engagement. No more. No less. Calculating “actual damages” involves taking the full engagement fee and subtracting any costs or amounts you saved or did not incur as a result of not having to perform.

In some instances, the “full engagement fee” might include the performance fee as well as other costs, such as the value of travel and/or hotel that the presenter was covering. However, for the sake of simplicity, let’s assume that the full engagement fee was $5000, of which you needed $2000 to cover costs such as travel and equipment, leaving $3000 for profit. If by cancelling, you did not have to incur the travel and equipment costs, that means you saved $2000, and your “actual damages” are $3000. You would only be entitled to the full fee of $5000 if the engagement were cancelled too late for you to save or recoup any of your costs.

However, “actual damages” can never exceed the total value of the full engagement fee. As we all know, sometimes a single cancellation in a larger tour can also have residual implications. What if you were counting on the travel and hotel from a larger presenter to “underwrite” the costs of a smaller engagement fee from another presenter or run-out? If the larger engagement gets cancelled, that may necessitate the cancellation of the smaller one as well, or even the entire tour. Sadly, those losses are not “actual damages.” That’s just called bad planning.

Just because you were counting on something to make an entire tour break even, does make the loss “actual damages.” If the loss of a single engagement will trigger a domino effect, such as the cancellation of the entire tour, then, in addition to “actual damages”, you have suffered “consequential damages.” I know, that doesn’t make sense, but lawyers came up with these concepts hundreds of years ago and contracts still use the same broken terminology. This is the risk inherent in using contractual language you copy from someone else or don’t fully understand. You may inadvertently be using language that makes sense to you, but has a different legal meaning. The solution is simple: use English and be specific—even if it means (perish the thought!) using more words. For example, rather than write “we get 50% or actual damages” write what you mean:

If you cancel the contract, we get either a minimum of 50% of the engagement fee or all of the damages we actual incur as a result of the cancellation, including the cancellation of other engagements and/or any additional costs we must incur for travel, hotel, or other tour expenses, whichever is greater.

Wordier? Yes. Clearer? Indeed. An even clearer solution? Specify at the outset that the engagement is non-cancellable.

__________________________________________________________________

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!

 

 

 

 

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

 

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

Opening Pandora’s Box

Thursday, September 4th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

Loved your recent Musical American newsletter article on ethics.  As a manager, I was very interested when you wrote: “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.”  Any chance I could get you to expand on that comment a bit? 

Must I? It’s only going to get me in trouble! Oh, well, here goes….

It’s hardly a secret that everyone throughout the arts industry is working harder and harder and earning less and less—and searching for both solutions and as well as excuses. Managers and agents are increasingly becoming frustrated with artists who they perceive as making unreasonable expectations and demands in exchange for paltry commissions. Artists are increasingly becoming frustrated with managers and agents who they perceive as earning large commissions but are unable or unwilling to provide the additional skills and services that they feel are necessary in today’s arts and entertainment marketplace.

While some managers are exploring different options (ie: fixed retainers, hourly rates, reduced commissions for more successful artists, etc.) others are wedded to the strict commission model. As I sit here typing this on my computer keyboard surrounded by my collection of quills and antique ink wells, I am the first to admit that I am a staunch traditionalist, resistant to change, and have even been described as “a walking ritual.” However, change is inevitable and merely continuing to claim that what worked in the past will work in the future, ignores the present realities. Assuming that there is some sort of “industry standard” that has and will survive the test of time is both unrealistic and short sighted.

Under the traditional agent or management relationship, managers and agents literally advance their services on the expectation that they will be compensated with an engagement commission at some point in the future and that, if the artist sticks around long enough and is successful, the agent or manager will recoup the initial investment of their time and efforts. While it’s intended to be a mutually beneficial partnership, is this still the case? Are the risks still equitable? While most certainly there are issues to consider far beyond mere economic and business challenges, being an impresario doesn’t always pay the bills. Part of what makes the performing arts industry so unique is the personal passion most agents and managers share for the work of the artists they represent. Nonetheless, even where the goal is to introduce an artistically important artist to new audiences and perpetuate critical art forms, selling tickets, booking engagements, and discovering new programming opportunities are all commercial enterprises. If the end result is that managers and agents simply cannot afford to stay in business, then everyone loses.

One often overlooked factor is that agents and managers are not used to thinking of their time as a valuable commodity. However, like attorneys, doctors, and others who provide personal services, managers and agents are primarily “selling” their time, expertise, and experience and the traditional commission model doesn’t often adequately compensate for the value of the time actually spent. Similarly, because artists think in terms of results, they often don’t have a realistic understanding of how much time and effort it takes to provide them with the services and results they require and often conclude they can find better deals elsewhere or on their own. In other words, a manager’s own success can often undermine the perception of how hard they are actually working.

It’s one thing for an agent or manager to advance their time, but I’m also increasingly seeing agents and managers advancing their own money to cover artist expenses with the expectation of being reimbursed by the engagement or tour fees. When did an agent or manager’s business plan including being a bank? I’ve even seen many managers and agents advance costs for airline tickets or tour expenses, including visas and taxes, out of their own pockets only to have the tour cancelled or an artist leave the roster. At what point is a tour or artist not worth saving?

All of this leads to some important questions: is a demanding artist actually “worth” the time and effort that they require? How do you deal with a demanding client base without killing yourself?  Is the commission model still viable? What services do artists really want, need, or expect? (Remember, at least from a legal perspective, the “client” of an agent or manager is always the artist, never the venue.)  Is there a more efficient or cost effective way of providing those services? Are managers and agents spending too much time learning new skills at the expense of focusing their time on those areas where they already have expertise? While in many instances, the traditional an arrangement is the only way a new or young artist can afford management or an agent, does this arrangement continue to make sense with more established and successful artists? Does it ever make sense for an agency or management company to become overely dependent upon commissions from top artists to underwrite the less successful artists on the roster? Are there other viable options to earning revenue than simply charging higher commissions? Hourly rates? Retainers? Fixed fees? Merging smaller agencies and companies into larger and larger behemoths? Are there different arrangements that might better serve artists as well as agents and managers?

While I obviously have my own thoughts and opinions on these topics, they would hardly be dispositive or universally applicable. There is never going to be a single solution that works for everyone and, ultimately, each agency or management is going to need to develop different solutions that work for them, their business plans and goals, and their artists. Still, I’d love to see more serious consideration and exploration of these topics on multiple levels. Frustratingly, whenever I am a party to workshops and discussions about “new business models”, it almost inevitably winds up being a discussion of how to “sell” artists to presenters and, rarely, if ever, an honest assessment of the field of management and artist representation itself. In other words, the focus of exploration tends to be outwards—how to sell better, package better, market better, and, in short, reach venues and presenters in different ways. While those issues are unquestionable important, there remains a perception that it’s the marketplace that needs to fixed. If you really want to examine new paradigms in a changing environment, agents and managers, as well as artists and presenters, will also need to look inwards and examine themselves as well.

Have a great season everyone!

__________________________________________________________________

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

But I Don’t Want To Be A Producer!

Thursday, June 19th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We have booked one of our artists to perform at a venue. As we are the agent, our booking agreements are always between the venue and the artist, and we sign on the artist’s behalf. However, the presenter is insisting that, if we want to sign the contract and receive the engagement fee, as we do, then the contract must be between them and us. Is this correct?

If you are “producing” the artist—that is, you are being paid a fee by a presenter or venue to hire the artist and produce the performance—then, yes, the presenter is correct. However, if, as you say, you are the artist’s agent, then you are absolutely correct and the presenter is…well, confused.

Producers are paid a fee to provide the services of an artist. Typically, the producer will either accept a fee, use a portion of that fee to pay the artist, and pocket the difference; or invest his or her own money to hire the artist, and then keep the box office or other profits from the performance. Either way, a producer accepts a substantial amount of risk in exchange for a greater return. However, merely accepting payment on behalf of an artist, deducting your commission, and then paying the balance to the artist does not make you a producer. It doesn’t matter whether or not you use the word agent or producer in the contract. Rather, it all comes down to how the booking contract is phrased:

X is a Producer:

“Venue X enters into this Agreement with Agent Y to produce and provide the services of Artist Z”

X is an Agent:

“Venue X enters into this Agreement with Artist Z for Artist’s services, by and through Artist’s Agent Y”

Anyone who books a date on behalf of an artist, whether as a manager or as a booking agent, is working for the artist. The artist is your client. In legal parlance, the artist would be referred to as the “Principal” and the agent would be referred to as…get ready for it…the “Agent.” Under the Law of Agency (not to be confused with various state licensing requirements for booking agents—that’s something completely different), agents (ie: someone who acts for and on behalf of someone else) owe a variety of duties to their principals, including duties of loyalty, duties of care, and fiduciary duties. In exchange, agents are not liable for the contractual breaches of their principals, even if the agent negotiated the contract on behalf of the principal. This is important. If the artist decides to cancel at the last minute or otherwise causes damages to the venue or presenter, the agent is not liable whereas a producer would be liable…provided, however, that the agent did not inadvertently make themselves a party to the contract and agree to “present or produce” the artist. A booking contract, then, should always be between the presenter/venue and the artist. As the artist’s agent and representative, you can absolutely sign on behalf of the artist as well as accept money on behalf of the artist. However, the contract is between the presenter/venue and the artist.

I suspect your presenter is either suffering from the “That’s the way we have always done it” disease or the more common affliction of “I don’t know what I am talking about but will insist I am right.” It also could be a fatal case of “We are affiliated with a large university and must abide by arbitrary and inflexible rules that do not apply and no one understands.” Regardless, if they insist on having the artist sign the contract, I really don’t have a problem with that. In fact, in many ways, I actually prefer it as it eliminates the ability of an artist to come back to you later and claim they never approved the terms of the engagement. However, even if the contract is between the venue and the artist, the contract can still provide for you to receive all of the payments on behalf of the artist. Some battles aren’t worth fighting.

_________________________________________________________________

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 Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Venues | 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!

 

 

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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 Elephant and The Frog

Thursday, May 29th, 2014

By Robyn Guilliams     

Dear Law & Order

I’ve been hearing a lot about a recent U.S. ban on ivory that will prevent string players from transporting their instruments in and out of the country.  However, I recently travelled to Europe and back with my cello (my bow has a small ivory inlay in the frog), with no problem.  What’s the story?

What a great question!  There has been a lot of press lately about the “new” ban on ivory, which will affect musicians whose instruments contain even a tiny amount of ivory.  Although a number of issues related to the ban are yet unresolved, here’s what we know thus far:

The ban is not really new. U.S. law has prohibited items containing ivory, Brazilian rosewood and tortoiseshell from being brought into or taken from the U.S. for a number of years. (Many other countries have similar laws.)  While these laws haven’t been enforced in the past, the U.S. recently signed the Convention on International Trade in Endangered Species of Wild Fauna and Flora (known as the CITES treaty) with 189 other countries.  The purpose of the CITES treaty is to ensure that international trade in specimens of wild animals and plants does not threaten their survival.  Save the elephants and the sea turtles!

Fortunately, the governments participating in CITES realized that the treaty rules would make it impossible for some musicians to travel internationally with their instruments.  For this reason, CITES provides that musicians may obtain a certificate (or “passport”) that will allow them to transport internationally instruments that contain ivory and/or rosewood, and other banned materials (such as certain types of wood and sea turtle shell).  The passport, which is good for three years and is attached to the person, not the instrument (i.e., it’s not transferable), will allow the musician to travel with his/her instrument throughout the 189 countries without any problems (in theory).

There is no question that, at some point in the future, musicians with instruments containing ivory, rosewood, etc., who wish to travel internationally with their instruments must obtain this passport. However, at this point, there still are serious problems with the passport system:

  • The passport currently is accepted at a very limited number of US ports.  There currently are 18 ports that permit items relating to “endangered species” (ivory and tortoiseshell) to be brought into the country.  There are 15 ports that allow items related to “endangered wild fauna” (rosewood and other banned woods).  Only nine of these ports overlap.  I.e., if your instrument contains both ivory and rosewood, there are only nine ports at which you may enter the U.S.
  • In theory, one may request entry into a non-designated U.S. port.  However, the process for obtaining this permission is a mystery right now, and will vary from port to port.
  • The process for obtaining an instrument passport in the U.S. are still a bit in flux, as this is something quite new that the U.S. Fish & Wildlife Agency is dealing with.  In other words, we are dealing with a government agency working out the kinks of a brand new procedure—which means, if you plan to obtain an instrument passport in the very near future, expect delays and (potentially) other problems.  In fact, if you don’t plan to travel in the near future, you may want to sit back and relax, and concern yourself with obtaining your passport later (after the government has worked out its procedural problems on other poor souls!)

Obviously, one must obtain an instrument passport from their own country, so the rules may be different in various countries.

The great concern at this point is enforcement – when will it begin, and how?  Will there be any sort of grace period?  Unfortunately, these questions remain unanswered by U.S. Fish & Wildlife.  The good news is that, at present, we know of no cases of instruments being confiscated and/or destroyed.  (Let us be grateful for what we have…)

More details on the ban, the instrument passports, and potential enforcement are available at the  League of American Orchestras’ website: http://americanorchestras.org/advocacy-government/travel-with-instruments/endangered-species-material/ivory-ban-impact-on-orchestras.html

So the question for musicians is this:  Do they continue to travel with their instruments internationally with no passport, and hope for the best until enforcement begins?  Or do they go ahead and apply for a passport?  If they choose the first route, there is the risk (though minimal at this point) that their instrument will be confiscated.  If they choose the latter route, they risk enduring extra scrutiny from airport personnel who aren’t yet familiar with the new regulations and procedures.  Each person must weigh the pros and cons, considering their individual circumstances and.

Finally, I want to give a shout out to Heather Noonan at the League of American Orchestras, who has devoted an enormous amount of time an effort to this cause.  Many of you know this already, but Heather has been at the forefront of this issue and others, working tirelessly on behalf of musicians and orchestras.  Whenever I speak to her, she is on the move, on her way to meet with yet another charming legislator to advocate for musicians affected by the ivory ban, or for orchestras and other arts organizations affected by the latest kerfuffle with USCIS, or on other issues that affect our industry.  She works constantly to remind our elected officials that the arts, and artists, matter.  Thank you Heather!

__________________________________________________________________

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!

 

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

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