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

Wednesday, June 7th, 2023

LAW & DISORDER

Performing Arts Division

June 7, 2023 

INSIDE THIS ISSUE:

• What Are Contracts For? 

• Non-Profit Laws Made Simple 

• Are Union Strikes Force Majeure Events? 

• Artist Visa Updates

 

Legal Issue of the Month:

What Are Contracts For??? 

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

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

Dear Law and Disorder:

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

“Non-Profit By-Laws Made Simple” 

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

 

Breaking the News!

Are Union Strikes Force Majeure Events? 

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

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

You can read more about this issue HERE

 

Artist Visa News & Nausea 

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

 

 

Deep Thoughts

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

Anonymous

 

 

 

Send Us Your Questions! 

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

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

 

OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

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

Backlogs at US Consulates, New USCIS forms, Contract Entirety Clauses, and Board Term Limits

Wednesday, June 15th, 2022 
LAW & DISORDER:

Performing Arts Division

June 16, 2022

INSIDE THIS ISSUE

» Backlogs at US Consulates «
» New USCIS forms «
» Contract Entirety Clauses «
» Board Term Limits «

Current USCIS Service Center Processing Times:

Vermont Service Center: 
Standard processing: 4 – 8 weeks
Premium processing: 9 – 10 days

California Service Center: 
Standard Processing 2 – 4 MONTHS! 
Premium Processing 13 – 14 days!
US Consulates Are Significantly Backlogged!
The current slow down at the California Service Centre notwithstanding, the real bad news is that many—not all, but many–U.S. Consulates continue to experience significant backlogs. Artists approved for visas are finding that it can take weeks or months to have their visa stamps issued by a U.S. Consulate. Just within the last few weeks, an artist approved for an O-1 visa found she could not get an appointment for a visa stamp at the Paris Consulate until January 2023!

Whilst some consulates have expanded their interview waiver programme, many continue to be wildly inconsistent with regard to how this is implemented, including whether to grant interview waivers at all. For example, an artist was recently informed by the U.S. Consulate in London that, though he qualified for an interview waiver, it could take “several weeks or months” before he would be able to submit the application and get his visa stamp. Others have found it has taken 3 – 4 weeks for Consulates to return passports with visa stamps. Consulates also continue to be wildly inconsistent in how they grant requests for emergency appointments, with arts visas, of course, sedimenting to the bottom of the bin.

Whilst it is still “officially” possible for anyone, regardless of citizenship, to apply for a visa at any U.S. Consulate in the world where one can get an appointment, some consulates—purportedly to manage workload—are only accepting applications from citizens or residents of the country in which the Consulate is located.

In response to manifold complaints and queries from all sectors, the U.S. Department of State has issued several urgently indeterminate statements, a synopsis of which essentially being as follows:

“Yes, we know there’s a problem. We are very sorry. We are doing our best. We have a lot on our plates rights now. We are currently implementing many solutions which, due to national security, we cannot divulge other than to re-assure you in the vaguest possible terms that these new solutions will be more effective than our previous solutions which in hindsight should have been seen as imprudent in the expectation of their efficacy. Will it help if we continue to blame COVID? We care about you. Really. Every effort is being made towards prioritizing a scheme pursuant to which visa applications will be prioritized based upon a system of discretionary prioritization. The wizard says go away!”

Devastatingly, we are increasingly encountering engagements having to be cancelled or rescheduled where visa petitions were approved, but artists could not get their visas in time to travel. As such, please take this into consideration when planning your timelines and budgets. If you are planning anything for fall 2022 which depends upon a non-US artist, you would be wise to (1) check the current application procedures and timelines for the consulate where the artist will be applying for their visa stamp and (2) seriously consider premium processing at the outset so as to get the petition approved quickly and allow for as much time as possible for the visa stamp application process.

USCIS Has Issued Updated Forms

On May 31, 2022, USCIS released new editions of Form I-129 (used to file for O and P visa Petitions) and Form I-907 (for Premium Processing). Both of these forms are identical in all respects to the prior forms, except with new dates at the bottom. Why did they bother, you say? What was the point? No point. They’re just a bunch of crazy kids.

Legal Issue of the Month:
Contract Entirety Clauses

Look out for what are sometimes called “superseding agreement” or “entirety” clauses. They appear in almost all contracts, usually buried amongst the “legalese” that no one wants to read. They usually say something like this: “This Agreement constitutes the entire Agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.” It means that emails and discussions are not binding once the contract becomes binding.

So, if you had a series of emails with a presenter confirming that your artist must have a dressing room free of feather pillows, but that never made it into the final engagement contract, and the contract contains an “entirety clause”, then she’s going to need some extra-strength Zyrtec. I encountered this situation in the context of travel arrangements, but the issue is the same–and, no, sending me the chain of emails and texts did not help two days before the date! 

Dear Law and Disorder
Actual Questions We Get Asked and The Answers People Don’t Want

“BOARD TERM LIMITS”

Dear Law and Disorder:

We are a small non-profit that runs a performing arts center. In up-dating our by-laws, its been recommended that we establish term limits for our directors and officers, as well as a formal nominating committee. Do we really need such formalities? We’re very small and don’t have any other committees. Can’t the board itself select its own members and officers? And it seems a mistake to force directors to leave when they are willing to continue to serve on our board. What do you recommend to your clients?

While I am a strong advocate of fixed terms, I never recommend term limits for board members. Why? Because among the most challenging aspects of running a successful non-profit is finding and keeping healthy board members who through wealth, work, or wisdom (as opposed to whining, wasting staff time, or wrongheadedness) contribute to the success and productivity of the organization. Once you are lucky enough to find such pearls, the last thing you want to do is force them to leave! However, at the same time, you need to have a mechanism through which malignant board members can be removed. Such members, if left to metastasize, can quickly chase all the healthy ones away, burn out the staff, and poison the entire operation. Fixed terms where board members can then be re-nominated and re-elected provides you with such flexibility.

On the other hand, term limits for officers can be more appropriate. Why? Because with no term limits, even a beloved president or board chair can quickly become a feared dictator that no one wants to cross, or, just as worse, a benevolent, but ineffective leader who spurns all attempts at needed growth or change. At the end of the president’s term, they can still serve on the board, but no longer gets to wield the mace of supreme authority. Also, in my experience, I have found that those you most want to serve as board presidents or chairs will also be those who do not want to serve more than a few years year whereas those you want to avoid will be those looking to establish a hereditary fiefdom.

Deep Thoughts

“The nicest thing about not planning is that failure comes as a complete surprise and is not preceded by a period of worry and depression.”
John Harvey Jones.”
Send Us Your Questions
Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.

 

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

OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!
.

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

HOW TO FIX EVERYTHING

Thursday, January 28th, 2021

EXPLORING NEW BUSINESS MODELS AND PRACTICES IN THE PERFORMING ARTS IN A POST-COVID WORLD

By Brian Taylor Goldstein

Aside from thwarting a clown car coup, 2021 is certainly not off to the auspicious start we all had hoped for. Nonetheless, it is with trepidatious optimism that we find ourselves crawling out from our burrows like traumatized cicadas as we look towards re-establishing and re-building the world of live performing arts.

We have lost treasured venues, ensembles, businesses, and colleagues. Much, if not most, of the scorched earth we find will be attributable to the ravages of COVID. However, much will also be due to old and outdated business models and practices that were just waiting for an unperceivable pufflet of wind to topple them, much less the ravaging hurricane of a global pandemic. As we survey the damage, now is the time to consider rebuilding and reimagining those business models and practices. There’s nothing like the opportunity of a disaster to build a toppled house back on a better and stronger foundation than that on which it was built before.

As such, it was with the greatest enthusiasm and exhilarating gratification that I have of late been asked to weigh-in on numerous proposals from various groups and interests within the performing arts industry wanting to change the way business is done. This has quickly been followed by the resounding despair and blinding dismay of having repeatedly found myself reviewing not imaginative and daring visions of the future, but attempts to re-clothe and re-animate the cadavers of the past. Proposal after proposal has been premised upon the belief that changing the business “model” in the performing arts industry means finding a way in which various parties—presenters, venues, artists, managers, producers, promoters, labels—can come together to agree upon common practices and contractual terms so that we can all go back to “business as usual.” There have been cries of “we need to change the way the business works” and “we need to get everyone together and implement new industry standards and practices to which the vast majority of people would agree to implement.”

 The prevailing thought appears to be that if we can all just agree on “standard” terms for things such as insurance, cancellations, minimum booking fees and formulas, recording rights, and even timing for issuing and returning contracts, then everyone can breathe a collective sigh of relief and go back to negotiating and focusing only on fees, dates, planning, and repertoire—in other words, the more inspiring and fulfilling parts of the business.  I’ve read proposals that include such suggestions as “all engagements should provide for deposits and rehearsal fees” (I agree) to “there should be standard media terms that would automatically allow for streaming rights and recordings” (I do not agree) to finding new Force Majeure language that would “…make sure future pandemic events are not cause for cancellation” (Seriously?).

None of these proposals focus on the true crisis before us: the exploration of whether or not the business structures, plans, and methodologies upon which venues, presenters, producers, managers, agents, labels, etc. are run and managed need to be re-thought and re-imagined for a new age and new realities. Instead, what I have seen thus far is not unlike neighbors in a beach community finding their homes devastated by a hurricane and deciding not to rebuild on stronger foundations further away from the shore, but to put everything back exactly the way it was before, except, this time, mutually agreeing to paint their shutters all the same colour.

These concept of implementing standards and practices that everyone will agree upon arises from the long-cherished delusion that there exists a legendary grimoire of industry standards and practices that merely needs to be dusted off, amended, and updated for the 21st century. If everyone merely agrees to abide by this book, then peace will be restored to the kingdom. The trouble is…no such book exists…and no such book has ever existed. The only industry standards in the performing arts industry are that there are NO standards! To be sure, there are opinions. Strong opinions. We’ve all encountered comments such as “this is how the opera world does it” and “this is not how we do it in jazz” and “that’s not how commissions work.” However, if you polled a cross section of any segment of the performing arts about any given topic, you will find a significant divergence of opinion as to what is and what is not “standard.” What any one person believes to be standard may simply be based on their own limited experience in their own tiny corner of the industry.

To be sure, there are ways to structure some deals and transactions that are more common than others, and there is no reason to reinvent wheels where others have already figured out reasonable ways to build them, but there will always be circumstances warranting different arrangements for different organizations, individuals, projects, and budgets. More often than not, the term “industry standard” is thrown about in lieu of admitting “this works for me and I’d rather not change.” Worse, it’s often employed as a form of peer pressure to circumvent negotiation or compromise by making the other party feel that they are either too ill-informed or ill-experienced to realize the absurdity of whatever very reasonable proposal they may have just made.

So, if there are no industry standards, why can’t we all just get together and create some? If enough people agree on common contract terms and procedures, then wouldn’t that compel everyone else to fall in line and do it the same way? If everyone agrees to abide by what we all agree is fair, doesn’t that take away the risk of anything being unfair?

First, there are the practical challenges of defining even sub-segments of an industry as diverse as the performing arts, much less getting them all together and mutually agree upon  common procedures for how anything works: bookings, recordings, commissions, rehearsals, etc. There are large and small venues and presenters. For-profits and non-profits. There are different genres. Different audiences. Different goals and missions. Commercial and non-commercial producers. Etc. Etc.

Second, but by no means least, in most countries this is also illegal.

Let’s say that we all agree amongst ourselves that artists should be paid deposits (which, again for the record, I agree with—if you can’t hire a wedding caterer or a building contractor without a deposit, why are artists expected to be paid only after work is done?) What if a huge, prestigious producer or orchestra offers an engagement, but refuses to pay a deposit? Are you going to walk away and refuse to accept the date? Probably not. The reality, of course, is that unless an artist has enough prestige and clout to demand their own terms, then there are always more artists than there are venues and presenters. This, naturally, gives stronger negotiating power to presenters, producers, and venues. This is also called “Show Business.” But what if all the artists or their representatives get together and agree that they will all demand the same terms for all artists? If all the artists and their representatives stick together, then venues and presenters will be forced to comply, right? Not so fast. If a group within any industry unifies to set standard terms and practices with which all members of the group will be required to abide and with the purpose of coercing or compelling other businesses to agree to such terms and practices or else be excluded, this is called “collective bargaining.” In the United States, at least, only authorized unions or organizations are allowed to do that. In addition, any group of businesses within an industry that teams up or forms a monopoly in order to set the terms and conditions within that industry can be held to be in violation of various anti-monopoly and trade practices laws. In the U.S., for arcane historical reasons, these are called anti-trust laws.

So, does this mean we all just throw our hands up and surrender ourselves to a world of unfettered, Darwinian capitalism where ticket sales and popularity alone determines the future of the performing arts? Absolutely not! It is and will always be critical for the various groups and interests that comprise the performing arts world to come together to discuss mutual concerns and issues and how best to address them collaboratively. However, in any business enterprise, whether it exists within the performing arts or any other business sector, exploring new business models means looking inward to how you currently conduct your own business—not someone else’s. What services do you provide or offer? Is there a demand for those services? What are those services worth? What are your streams of income and revenue? Are you too reliant on either passive or active income? Who is your competition? What is your sustainability? What makes you unique? Are you over staffed or understaffed? Do you need to learn new skills? Are there better ways to fulfill your mission, goals, or creative aspirations?

Exploring a new business model is not a group activity. It is purely an inward journey. An act of self-introspection and challenge that cannot be done by committee. It is done in the depths of the night, alone, often with Slipsmith gin and two olives. Any business facing an existential challenge of survival does not address the problem by reaching out to other businesses with suggestions of what they should be doing to help the field or make your life easier. Rather, what are YOU doing that may need to be changed, rethought, or reimagined and what can YOU do to help yourself? Are there treasured customs, practices, presumptions, and assumptions that you are loathe to give up? Perhaps it is YOU who needs to turn away from industry standards (whatever you believe them to be) and try something different. For example, are the traditional roles and services of agents and managers still relevant? Do we need to continue planning concerts and performances around a fixed “season?” Does an artist really need a label to release and promote a recording? Are there other ways to monetize and promote artistic and creative services to create more diverse streams of income for artists as well as venues, theaters, and producers? Are performing arts unions today advocates or hindrances for their artists? Is there a role for more immersive experiences in theatre and concerts? Does the commission model continue to make sense for artists and their representatives? Is there a continued role for booking conferences? Are you still sending out paper press releases? Are you ignoring the role of social media and other interactive technologies? Are there diverse faces and voices in your audiences or on your stages? Are there more ways for popular and less popular genres to collaborate? Should dysfunctional non-profit organizations continue to be the default business structure for certain artistic genres? Do all classical concert and recital halls have to be an anesthetizing mélange of browns and beiges? Perhaps the time has also come to bridge the ancient abyss between arts and entertainment and explore aspects of entrepreneurialism that can be borrowed to further the sustainability of our highest artistic standards and endeavors.

There are no right or wrong answers to these questions. In fact, these are all questions that have long been proposed, discussed, tossed about, disputed, debated, and then dismissed into the rubbish bin to be addressed another day. However, that day has come. This is it. The tide of COVID has swept our businesses off their foundation. Do we build them back better and stronger than before, or build them back the same, but with colour-coordinated shutters?

_________________________________________________

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

VISIT OUR NEW WEBSITE: ggartslaw.com

 

 

__________________________________________________

THE OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.

 

Posted in Artist Management, Arts Management, Contracts, For Profits, Law and Disorder: Performing Arts Division, Non-Profits, Publishing, Recordings, Unions, Venues | 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.

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

The Divine Right To Cancel

Thursday, February 12th, 2015

By Brian Taylor Goldstein, Esq.   

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

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

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

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

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

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

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

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

Bring Out Your Dead!

Thursday, October 9th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

Many years ago I hired an attorney to create an LLC for me, but I wound up never using it. Recently, I was presented with another business opportunity, but I’d like to have an LLC to do this. Can I still use the original LLC even though it would be for an entirely different purpose? I’d hate to have to hire an attorney to create a new one as the last one was very expensive.

When you create a corporate entity, such as a Limited Liability Company (LLC), a C-corporation or S-corporation, its like creating a living creature. It has its own legal identity, pays its own taxes, and can sue and be sued entirely separate from its owners. However, like leaving a fish abandoned in a fishbowl, if you ignore it, don’t feed it, and don’t change the water, it will die.

Corporate entities such as LLCs are created and formed in the state where they are located. Once formed, most states require the payment of a yearly registration fee to keep the entity “alive.” If the fee is not paid, the entity will be listed as “inactive” (ie: put into a medically induced coma.) While you can often pay the past due fees and make it “active” again, if it stays “inactive” for too long it will be removed from life support and you will have to start all over again. Also, even if you could somehow resurrect a dead corporate entity, unless they were originally created to be generic, such entities can’t be used for different purposes than those for which they were originally created. For example, if you created an LLC to represent artists, you can just use the same entity to operate a record company or produce a play.

However, whether you are creating a new corporate entity or resurrecting an old one, the process does not require an attorney and should never be “very expensive.” I have heard of people paying attorneys $5000 – $10,000 for this process which is, quite frankly, insane. Creating an LLC, C-corporation, or S-corporation in most states only requires a simple form or two (most of which can almost always either be downloaded or completed on-line) and the payment of a registration/filing fee. Often, its advisable to consult with an attorney or an accountant (or both) about the various legal and tax implications of different corporate entities, as well as to flag any potential business or legal pitfalls. Also, if your entity will involve more than one owner or partner, then you will want an operating agreement or shareholder agreement, and possibly even some by-laws to make sure everyone knows who’s in charge, how decisions are made, how to bail out, etc. However, unless you are creating an entity which will be involved with complex securities and exchange transactions or plan to do a corporate takeover of Apple or AT&T, the forming of the entity itself is quite simple. If you can complete your name and address (which I do acknowledge is more challenging for some that others), you can create and register an LLC.

___________________________________________________________________

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 Arts Management, For Profits, Law and Disorder: Performing Arts Division, Limited Liability Companies, Non-Profits | Comments Closed

Hypothetically Speaking About Liability

Thursday, May 1st, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

If a hypothetical rental company is hired, either by a venue or by the client using a venue, to supply the sound and/or video system for a corporate, non-profit or association event; and this hypothetical rental company is asked to provide “top 40” music to be used during “walk in”, dinner, award winner walks up to the stage, etc. where in the liability chain would this rental company be? What if the end client hands the hypothetical rental company a stack of CD’s or worse, a drive full of MP3’s and requests/insists that they be played? If “ultimately” the owner of the venue is responsible of verifying that proper licensing has been obtained but “everyone involved” is at risk of being named in a lawsuit if proper licensing has not been obtained, how does the vendor in the middle point to either the venue or the end client as the responsible parties?  Is it enough to spell out specific language in the rental agreement? <sarcasm> I know that you are, no doubt, shocked to hear that this scenario might be possible.  However, IF it were to become “common practice” among rental companies to happily play whatever they and/or their client wanted without so much as a hesitation, it would be difficult for any hypothetical rental company to compete if they were the one’s constantly harping on usage rights with their clients. </sarcasm> 

In truth, I’m less shocked by the possibility of the scenario you propose than astonished—nay, agog—by your desire to be proactive about it—even hypothetically. It’s a welcome reprieve from the “let’s not call GG Arts Law until we’ve actually been sued by Disney” approach we are more familiar with.

Merely being named in a lawsuit doesn’t mean that you will necessarily be found responsible—or, as lawyers like to say “liable.” Liability requires that you had a duty to do, or not do, something which you did or did not do. In your hypothetical, its not entirely accurate to say that “ultimately the owner of the venue is responsible for verifying that the proper licensing has been obtained.” Rather, if licensing is required, everyone involved in the performance has a duty to make sure that the proper licenses are obtained—not just the owner of the venue, but the hypothetical rental company and the rental company’s client. Its more accurate to say that, while, ultimately, the owner of the venue is more likely to get sued, everyone involved could be held responsible.

However, you are correct that the hypothetical rental company can put language in its rental agreement that says that whomever is hiring the company (either the venue itself or the person renting the venue, or both) agrees to obtain all necessary licenses and, in the event the rental company is sued and found to be liable for copyright infringement, will cover all of its legal costs and expenses, as well as any damages it might be ordered to pay. The technical term for such a clause is “indemnification and hold harmless”, but there’s no need to use magic legal terms so long as the meaning is clear. While having such a clause in its rental agreement will neither protect the hypothetical rental company from getting sued nor protect it from being liable, it will give the company a contractual basis to turn to the party that signed the rental agreement and say “you agreed to take care of this problem. Fix it!”

Even with an indemnification and hold harmless clause in its pocket, whether or not the hypothetical rental company can happily play whatever it and/or its hypothetical client wanted without so much as a hesitation really depends on the venue where the company has been hired to provide services and where such venue lies on what I call the Risk-O-Meter.  On the low end of the meter lies most for-profit venues (hotels, rental halls, restaurants, conference centers, etc) which more often than not will have obtained the necessary blanket licenses from the major performance rights organizations (ASCAP, BMI and SESAC) to permit that stack of CD’s or a drive full of MP3’s to be played. So, no worries. On the high end you will find the non-profit venues, schools, community centers, and social halls which either don’t know they are supposed to get performance licenses or incorrectly believe that because they are non-profit they are also non-commercial and are exempt from the statutes, rules, laws, and other social orders by which the rest of us must abide. (While not all commercial venues are non-profit, almost all non-profit venues are also commercial.) Your need to harp on usage rights is directly proportionate to where you lie on the Risk-O-Meter—hypothetically speaking, of course.

__________________________________________________________________

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 Artist Management, Arts Management, Contracts, Copyrights, For Profits, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Recordings, Venues | Comments Closed

Rattle Sabers, Not Contracts

Thursday, February 27th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

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

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

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

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

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

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

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

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

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

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

Presenter: But that’s not industry standard

Manager: It’s what’s in the contract.

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

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

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

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

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

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

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

Manager: Fine

Presenter: Fine

…and scene…

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

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

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

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Back Away From The Email!

Wednesday, December 4th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

I recently had to cancel an engagement. We had a signed contract with the venue, but circumstances arose where we had no choice. I sent a very cordial and professional email to the venue, but got a very threatening and aggressive response. I wrote back and explained our situation, then I received a nasty email from the venue’s attorney threatening to sue us. This doesn’t seem very professional to me. We could have worked this out and now they are demanding either a written assurance that we will perform or else they will sue us for damages.

In an industry that depends on relationships and communication, email, more often than not, facilitates neither. Too many folks use email as convenient way to avoid what they perceive will be difficult or unpleasant conversations. What you perceived as a “cordial” and “professional” email may have been misread as dismissive and aggressive. Why? Because emails cannot convey tone or emotion or sincerity.

This is yet another example of why everything I needed to learn, I learned in theater. Emails are like scripts. Without an actor or stage directions to assist in interpreting them, they are just words on a page and subject to multiple interpretations and readings. “I loved your performance” can be read equally with deep sincerity or with eye-rolling sarcasm. Even something as simple as “I’ll respond as soon as I can” could be interpreted as “This isn’t important enough to me to demand my immediate attention.” Especially when you are delivering information you know the listener will not be receptive to hear, don’t be surprised when they do not give you the benefit of the doubt. Emails are great tools for confirming information or clarifying understandings, but lousy for any communication that calls for nuance or delicacy at the outset.

In this situation, if you had a signed engagement agreement, then you probably had no right to cancel. Thus, regardless of legitimacy of your circumstances, a cancellation is a breach of contract. Using an email to notify someone that you intend to breach your contract is like texting your wife that you want a divorce. How did you expect them to respond? It was unrealistic to think that your missive would be met with joyous rapture and a “thank you” note.

However, the venue is equally as culpable in the escalation. When the venue received your email, they could just as easily have responded with a phone call rather than respond with their own email. Certainly, when you received the venue’s angry response, you could have used that as an opportunity to reach out to them with a personal phone call rather than yet another email. There is no guarantee that a personal phone call would have resulted in a better outcome, but more often than not the sound of a plaintive voice acknowledging responsibility accompanied by contrite offers of reasonable solutions will offer both parties better odds of avoiding unproductive conflict. You can always follow up with an email after you have had a chance to make a personal connection.

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

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