Posts Tagged ‘artist management’

• A National Ban on Performance Exclusivity Clauses   • Posting Recordings on Websites • Artist Visa News, Nausea & Updates  • Your Contract Playlist    

Monday, June 24th, 2024

LAW & DISORDER

Performing Arts Division

June 25, 2024  

INSIDE THIS ISSUE:

• A National Ban on Performance Exclusivity Clauses  

• Posting Recordings on Websites

• Artist Visa News, Nausea & Updates 

• Your Contract Playlist    

 

Legal Issue of the Month:

Will a New National Ban on Non-Compete Agreements Also Apply to Performance Exclusivity Clauses? 

 

 

You may recall (or not, that’s ok, too) that in our last newsletter we discussed that on April 23, 2024, the Federal Trade Commission (FTC) issued a nation-wide ruling banning non-compete clauses in all employment contracts, regardless whether an individual is hired as an actual “employee” or as an independent contractor, paid or unpaid, an intern, or a sub-contractor hired to provide service to another party’s client or customer. You can read the announcement HERE.

Further review and analysis have shown that this new ruling, should it go into effect, will also prohibit venues and presenters from including any language in their engagement agreements restricting or prohibiting where an artist can perform before or after an artist’s performance. In other words, should the Grunion Run Performing Arts Center engage the Willy Tugger Jazz Band, they could not prohibit the band from performing two days later at the Annual Grunion Run Mayonnaise Festival where admission is free. Of course, regardless of the future contractual enforceability of a performance exclusivity clause, any artist who actually did this would be hammering a nail deep into the coffin of their touring career. 

Whilst the official effective date has yet to be announced, unless the new regulation is pre-empted by a lawsuit or other judicial action, then the ruling will likely go into effect sometime in Fall 2024.

 

 

 

Dear Law and Disorder:

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

“With thanks, your friendly, neighbourhood car thief”

Dear Law & Disorder:

I want to post a video on my website that I found on the internet that would be perfect for my new project. I will give full credit to the musician, including the musician’s original link, would this be legal? And can you please specify on what full credit means.

A “copyright” is literally the right to make copies. A copyright “infringement” is when you make a copy of something without the owner’s permission. Almost everything you can find on the internet (photos, images, videos, text, etc.) is someone else’s property. Part of the challenge of understanding digital rights is that the ease with which we can download and copy materials on the internet tends to make us forget that copying any materials without permission is still copyright infringement. Without question, many people post pictures, videos, and other materials and are more than happy to have others repost and share them; but that decision is entirely up to the person who owns the materials. In other words, just because a car is parked on the street, doesn’t mean it’s free for the taking. As for giving “full credit,” that’s like stealing a car, but leaving a thank you note on the owner’s door. It doesn’t make it any less a crime.

If you want to get actual permission to post a video, photograph, or any other copyrighted material on your website, then you need to get permission (aka “a license”) from the owner—which may or may not be the artist. The better option would be for you to post a link to the video rather than post the video itself. In other words, you would be inviting your readers to go to YouTube or the artist’s own website to view the video. This way, the owner can control whether or not they want the video to be shared.

And now, the part you’ve all been waiting for……

Artist Visa News, Nausea

& Updates

 

Most of you know by now that between December 2023 and April 2024, USCIS implemented a number of new filing fees and policies purportedly designed to “maintain adequate service.” Please Note: I did not make that part up. This is direct quote from the preamble to the Final Rule issued by USCIS on January 31, 2024 in which it sets out the goals of its new rules and policies: Not to “improve service” or even “increase processing times,” but to aspire to the lofty and inspired goal of “maintain adequate service.” You can read it for yourself HERE. That’s only slightly less disingenuous than a mobile service touting a 6G upgrade of two tin cans and piece of string.

USCIS, far from its delusions of adequacy, instead has taken an already broken system, smashed it into more pieces, glued it back together with spit and crushed graham crackers, and tossed it into a soggy carboard box of berserk cane toads. After two months in the toad box, here’s where we are:

 

1. Standard Processing Times Are Getting Slower 

Processing times are getting longer, slower, and more intense, which is good news only for those of you who fantasize about USCIS visa examiners. Though we have seen a few instances of standard processed petitions taking 4 months or longer, most seem to be taking 2 – 4 months from the date of filing. Whilst the Vermont Service Center appears to be processing more quickly than the California Service, as USCIS is no longer assigning petitions to service centers based on jurisdiction, there is no way to know where your petition will wind up or exactly how long it will take to be processed.

Premium Processing appears to be taking 7 – 15 business days, with, again, Vermont processing more quickly than California.

2. USCIS Is Losing P Petitions

For those of you unfortunately forced to file multiple P petition to cover large groups, such as four P-1 Petitions to cover an orchestra of 80 musicians, USCIS is splitting them up and sending them to different service centers who adjudicate them at different times. Even when a single P-1 Petition is filed concurrently with a single P-1S Petition or an O-1 Petition is filed with an O-2 Petition, USCIS is splitting them up and sending them to different examiners at different service centers. In the interest of further proving that they aren’t even competent enough to trust with scissors, USCIS is also losing a few along the way. In one particular case, three P-1 Petitions for a large group were filed concurrently with premium processing. USCIS approved 2 and lost 1. Eventually, they found it 30 days after it had been filed, emailed the receipt notice with a thoughtful note saying, “thanks for your patience,” and approved it 2 days later. (Yes, USCIS has to refund the premium processing fee for that one.) So, allow even more time when filing petitions for large groups.

TIP: If you do not receive an I-979 Receipt Notice for a filed petition, then go to your bank and see if USCIS cashed the filing fee check. If so, on the back of the cancelled check will be the receipt number for the petition. You can then use this to deride them when they try to claim it was never filed. 

3. USCIS Is Improperly Rejecting Petitions

There have been numerous instances reported of USCIS rejecting petitions for incorrect filing fees even where the filing fees were correct. This appears to be due to the fact the separating the total filing fee of a petition into multiple different fees based on the business status of the petitioner has not worked as seamlessly as they had hoped. USCIS reports that this is a “training issue,” which presumably means this will improve with rolled newspaper and better treats.

TIP: If you are a non-profit of an employer of 1 – 25 employees, then be sure to address this in your cover letter and explain why you qualify for a reduced fee. Also remember to provide the appropriate documentation of your status.

REMINDER: To qualify as a “small employer” you must have at least 1 full-time employee on a payroll and from whose pay checks taxes are withheld. Otherwise, you are a “small business” or “self-employed” and must pay the maximum filing fees.

4. USCIS Is Issuing Barmier RFEs

USCIS has always been renowned for issuing tragically comical Requests for Evidence (RFEs) when it comes to displays of their obliviousness of anything that occurs on a stage—which, of course, always raises the question of whose idea it was to give them the final say on the casting and booking decisions of major opera companies, theatres, and presenters in the first place. Nonetheless, unattended USCIS Examiners have recently been burrowing into new depths of obtusity in their soiled sand box and issuing more preposterous RFEs. In particular, we have seen a disturbing increase in RFEs for P-1S (Essential Support Staff) Petitions in which they are asking for individual employment contracts for each person with specific employment terms and conditions, more information on why the services provided are necessary for a performance, and why the group can’t just hire US workers to do the same thing. To pluck just a few pearls:

  • What do stage managers do and why are they necessary for a performance?
  • Why can’t an orchestra engage a US-based Orchestra Manager to manage their orchestra when they perform in the US?
  • If the group is performing in New York City, will the group’s lighting designer and stage technicians be providing their services at the same venue at the same time?

Other notable RFE’s we have seen over the last few months include USCIS contending that:

  • An “audience prize” given to an artist at a competition does not count as an “award” because he was selected by the audience and not by experts, critics, or judges in his field.
  • Competitions for “Young Artists” do not count as significant awards or competitions because young artists are only competing against other young artists. For such an award to be “significant”, the competition must include older artists.
  • An opera conductor is not in the same field as an orchestral conductor because one conducts orchestras and one conducts operas, thereby requiring two union consultation letters.
  • An artist performing at a festival cannot be a “lead and starring artist” if there are other artists also performing at the same festival. To be a “lead and starring artist,” the artist must be the only artist performing at the festival.

And my personal favourite: a request for “independent, third-party proof” of the formal name and full street address of Carnegie Hall, as well as proof that, just because the artist has been engaged to perform at Carnegie Hall they will physically be performing on-site.

Fortunately, all of these petitions were ultimately approved, but not without extra expense, lost time, and digging ever deeper into the repository of linguistic condescension in responding to the RFEs—including printing out Google Maps driving directions from the address of the California Service Center to the front door of Carnegie Hall.

TIP: Trying to explain or induce USCIS to appreciate the impact of their ineptness on the Performing Arts will produce only slightly less meaningful results than a zip log bag of toenail clippings. Rather, work around them. Know that they are extraordinarily paranoid, as well as painfully literal. Never explain or make them think. Give them what they want to know, regardless of how stupid or rudimentary it may seem, and in the simplest of terms possible. If what they want doesn’t exist, draft simple, specific documents just for USCIS that addresses the specific things they want to know.

 

Want To Listen To More About Contracts?

 

My friend and longtime client, Laura Colby, a performing arts manager based in New York City, hosts a podcast entitled The Middle Woman. In The Middle Woman, Laura discusses best practices for managing, touring, and presenting the performing arts from the lens of a working artist and shares her collected learnings with the new generation of performing arts professionals.

She recently invited me to join her in a discussion about contracts in the performing arts.

Here are the links to access the episode on Spotify, Amazon Music, Audible, and Apple Podcast.

Whilst it may or may not be the best thing to listen to before going to bed, it was a great discussion.

 

 

 

Deep Thoughts

 

“Remember, when you are dead, you do not know you are dead. It is only painful for others. The same applies when you are stupid.”

― Ricky Gervais

 

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.

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 Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Presenters, Uncategorized, Visas | Comments Closed

Contractual Effrontery; Not Paying Artists is a Crime!; How a Government Shutdown Will Impact US Artist Visas

Tuesday, September 26th, 2023

LAW & DISORDER

Performing Arts Division

September 27, 2023 

INSIDE THIS ISSUE:

• Contractual Effrontery  

• Not Paying Artists Is A Crime!

• How A Government Shutdown

Will Impact US Artist Visas 

 

Legal Issue of the Month:

Contractual Effrontery  

Recently, I was contacted by an agent regarding a new artist that was joining his roster. In response to receiving a copy of the agent’s managerial contract, the artist responded with a terse missive that they found the contract to be “unfriendly.” The artist complained that they were expecting a simple, written confirmation that the parties would be working in a mutual spirit of collaboration and partnership and not, as the artist opined, a “harshly written” and “aggressive” formal document with requirements, restrictions, terms, and conditions. The agent asked me to take a look at the contract.

I took a look. Whilst not a model of light-hearted whimsy, the contract contained the typically dry and prosy terms one would expect to find in an Artist/Agent contract: how commissions are calculated and paid; the agent’s booking territory and exclusivity rights; termination provisions; etc. Was it peppered with frippery and bagatelles? No. But neither did it hurl insults at the artist nor identify the contractual parties as “Manager (hereinafter referred to “He Who Must Be Obeyed”) and Artist (hereinafter referred to as “Scum”).” In short, there was nothing to find “unfriendly” or aggressive.

Make no mistake, I find it commendable that the artist actually read the contract. Indeed, given the fact that most in our industry avoid words and contracts as if reading anything that cannot fit on a post-it note will send their eyeballs exploding out their elbows, I was delighted. What is discouraging is that the artist took the contract as a personal affront rather than what it was: the agent’s proposal of the terms, definitions, and conditions that would define the “collaboration and partnership” between them. It was nothing more than an invitation for the artist to review the contract and respond with their own questions, clarifications, and proposals for alternative terms and conditions—though, in this case, the problem seems to have stemmed from the fact that the artist was anticipating no terms or conditions of any kind, presenter a deeper existential issue.  

The very core of any successful collaboration or partnership is making sure that all the parties are, in fact, working with the same playbook. And that’s the whole, entire, and sole point of a contract: that before any work is done, engagements booked, or music composed, the parties have exhausted every effort to root out unexpressed concerns and fears, unclog misconstrued conversations, and extract hidden expectations from the crevices of unspoken assumptions.

Whenever I am asked to review a contract, the first thing I do is ask my client to express their own understanding of what has already been discussed, outlined, or orally agreed upon. Then, I can draw back the covers to see how close or far apart the parties actually are. Discovering that the other party has expectations and assumptions that are contrary to your own makes them neither nefarious nor contemptible. It just means that you and they are not yet on the same page (both literally and figuratively) and that further conversations, clarifications, and discussions will be needed to assess whether or not to proceed with the relationship. However, if at the outset any reasonable proposal or question results in the other party clutching their pearls and gasping at such brazen impertinence, that is a good indication that any collaboration or partnership is not going to go well without an intervening therapist. 

Dear Law and Disorder:

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

“Not Paying an Artist is a Crime!” 

Dear Law & Disorder:
Our company got a bad check from a non-profit venue for a performance we did. We called them and they sent us a new check, but that bounced, too. Now they won’t return our phone calls. Is there anything we can do?

I once had an artistic director of a dysfunctional non-profit tell me that, although they were unable to pay the money owed to an artist, the artist should be satisfied having already been paid ten-fold in the goodwill and joy they brought to the audience. Sadly, I have yet to find landlords and grocery stories willing to accept payment in goodwill and joy. 

Almost every state has a statute that allows a person who receives a bad check to sue the issuer of the check and not only receive two to three times the value of the check, but recover attorneys’ fees and court costs as well. In addition to suing the non-profit itself, most states will also allow you to sue the individual who signed the check even if they were acting as an officer, employee, board member, or volunteer of the non-profit. While it’s true that suing an organization that has no money is often a waste of your own time and money, it’s also a crime in most states to write a bad check. You will want to do some research on the laws in your particular state.

Regardless, your first step should never be to file a lawsuit or run to the police. Besides, both civil and criminal laws require some form of “intent” on the part of the issuer of the check. There is no liability for inadvertently writing a bad check or in situations where the check merely crossed with the available funds. If the mismanagement of a non-profit were a crime, most of the 2023/2024 season would be presented at the Rikers Island Centre for the Arts. If the non-profit is not returning your calls, try other forms of communication such as emails or even formal letters. If necessary, send letters to the Chairman of the Board or to individual board members reminding them of their potential exposure to personal as well as criminal liability. If they continue to ignore you or fail to make payment, then at least you will have written proof of their intent not to honour the check and then you can consider whether to contact a local attorney, file a claim in small claims court, or contact the local prosecutor’s office in the city or town where the venue is located. Regardless, do not, under any circumstances, post anything on social media in an effort to shame them into paying you. Whilst public shaming worked for the Puritans, it will backfire on you for a number of reasons.

 

Artist Visa News & Nausea 

• How A Government Shutdown Will Impact Artist Visas

In the fantastically remote and implausible event that the US Congress cannot cast aside the ponderous chains of party and ideological differences, sipping from the communal grail of public service thereby discarding their own personal goals and aspirations to rapturously ascend the alchemical mountain into the prima materia of the common good, and in so doing pass the spending bills necessary to keep the government open beyond midnight on October 1, 2023, then certain US government agencies will cease operations.

As USCIS is mostly funded by petition filing fees, they will continue to review visa petitions—albeit processing may slow due to outside contractors not being paid. However, depending on how long the shutdown lasts, certain US Consulates around the world could experience delays in being able to process visa applications or cease all but emergency operations. Even when the government re-opens, the resulting backlogs could see delays continue for a while. So, again, whilst an unlikely scenario in a highly functioning democracy that owes no apologies to King George III, one may want to plan for contingencies, nonetheless.

• New Edition of the I-129 Form

Starting November 1, 2023, USCIS will only accept the new 05/31/23 edition of the I-129 Form. They have made no changes to the form itself. They merely changed the date of the form. Whilst some may consider this pointless, I have found myself enjoying new depths of restful slumber cradled in the knowledge that the Department of Homeland Security is tireless in its efforts to ensure malicious hordes of foreign orchestras do not employ date compromised forms to breach our borders. Until November 1, 2023, you can continue to submit the old 11/02/22 edition, but you might as well start using the new edition now. You can find the edition date at the bottom of the page on the form and instructions. As a general rule, if you make a habit of always downloading the I-129 form directly from the USCIS website whenever you prepare a petition, you will always have the most current edition.

• Using Consultation Letters from Peer Groups instead of Unions

We have recently seen an uptick in USCIS issuing a Request for Evidence (RFE) in response to petitions in which the Petitioner has provided a consultation letter from an artist peer group (such as Opera America, Fractured Atlas, or the League of American Orchestras) as opposed to the applicable performing arts labour union (such as AFM, AGMA, or AGVA). Whilst the applicable USCIS regulations allow for consultation letters to come from unions OR peer groups, not all Examiners are able to find this on their Fisher Price Lil’ Examiner Regulation Spin-a-Wheel pull toy. As a result, the petition will be put on hold until you can either present the Examiner with the citation to the regulation or get a union consultation letter. Depending upon whether you paid for standard or premium processing, this could cause a delay of 15 days to 3 months. As, in my experience, the most inane RFEs are only ever issued in response to petitions that are also the most time sensitive, in instances where you are on a short time you’re better off spending the extra money to get the union letter at the outset. The $300 consultation fee you try to save today could cost the cancellation you face without a visa being approved in time.

• Current USCIS Service Centre Processing Times:

There have been signs of slower processing times at the Vermont Service Center, though they are still faster than the oozing pace maintained at The California Service Center.

Vermont Service Centre:

Standard processing: 8 – 10 weeks

Premium processing: 9 – 10 days

California Service Centre:

Standard Processing 3 – 4 months

Premium Processing 13 – 14 days

 

Deep Thoughts

“If the wise elders of the village don’t teach the children, the village idiots will certainly do so.”

African Proverb 

 

 

 

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

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

Thursday, November 13th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

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

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

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

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

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

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

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

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

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

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

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

 

 

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

Pre-Nuptial Management Agreements

Wednesday, June 5th, 2013

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

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Exceeding the Limit on the Freeway

Thursday, March 22nd, 2012

By: Edna Landau

To ask a question, please write Ask Edna.

Dear Edna:

I have been working for the past five years as an assistant in the admissions office of an American conservatory. I would like to embark on a new direction – perhaps artist management or artistic administration at an orchestra. I know some people to whom I feel I can turn for advice but I’m not sure whether I should be offering to pay them or whether this is the sort of thing that people do for free. Can you please let me know how I should approach this and what one can expect from them? —R.S.

Dear R.S.:

Thank you for writing in with this excellent question. Happily, the world of the performing arts is a very nurturing one. Individuals who are in established positions are happy to share their expertise and insight with young people who are still building their careers. They probably benefited themselves from such input when they started out and this is one way for them to give back. They do not expect to be paid for their time, which typically will not exceed an hour. Nevertheless, one should not take this largesse for granted and there are certain guidelines that you might want to keep in mind:

1)    When you approach someone for this purpose, it is advisable to indicate as concisely as possible why you have approached them and to express your gratitude in advance for their consideration of your request, in light of their very busy schedule.

2)    It is best to avoid making an open-ended request. Be specific about the information you are seeking. For example, it is ok to ask someone if they think you are suited for a particular position but it may not be ok if you ask them to review your resume and tell you the kinds of jobs for which they think you might be qualified. It might be more suitable to address that to a paid consultant.

3)    Avoid putting time pressure on the person you are approaching. Try to make your request sufficiently in advance of the date by which you need the information. This is even more critical if you are asking for a letter of recommendation. If your need is sudden and unexpected, express your understanding that it may not be possible for them to respond in such short order.

4)    In general, if you are asking someone to share their expertise and they are not a family friend, colleague, former teacher, director of the alumni office of a school you attended, or someone with whom you have regular give and take with regard to sharing information, it is advisable to offer to pay that person for their time. Let them decide whether to offer their counsel for free.

5)    If someone has given you free advice in the past, perhaps as part of a mentoring program at a trade conference, do not assume that they will continue to advise you going forward. If they promised to follow up on some things, they will undoubtedly be true to their word, but do not expect or request any further action on their part without offering to pay them. For example, if they have agreed to let you use their name in expressing support for a project you are undertaking, that should not send a signal to you that they are happy to assist with your pitch letter or marketing materials unless they specifically indicated that in advance. Here, too, there are consultants who can provide such services.

6)    If someone agrees to give you free advice over a cup of coffee, try to grab the bill before they do. If they insist on paying, it’s OK to let them pay. A handwritten thank you note following the meeting is always welcome. If they happen to mention something that is important to them during the course of the meeting, with which you are in a position to assist, surprise them by following up on it. They may not have time to look for the perfect yoga teacher but if you know someone really good who is located near their home or office, send them the contact information. They will surely be impressed with your thoughtfulness.

To ask a question, please write Ask Edna.

© Edna Landau 2012

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Crossing Over to the Other Side

Thursday, September 22nd, 2011

By Edna Landau

To ask a question, please write Ask Edna.

Dear Edna:

I read your blog regularly and am happy that you welcome questions from people of all ages and all corners of the arts world. I have worked in the orchestra sector, in the area of arts administration, for the past seven years. I enjoy the work that I do in securing guest artists for our orchestra, working closely with our music director, and planning their visits. However, I have recently begun to think that I might be happier working more closely with the artists themselves as an artist manager. Can you please tell me whether it would be logical for me to move to the artist management side and what sort of preparation I might need. Thank you very much. —a curious arts administrator

Dear curious arts administrator:

Your contemplated move from arts administrator to artist manager is certainly not illogical. Others have made that move, although not frequently. The biggest challenge in making such a move is going from a buying mentality to a selling mentality. In your current position, your goal is to secure guest artists for your orchestra at the most reasonable price possible. As an artist manager, you will need to fight for the fee that you know your artist is expecting and there may not be any flexibility in the negotiation. In your current position, you need to perform various tasks which are pretty straightforward: engage a certain artist on dates that work for the orchestra, with a conductor or music director who wants to work with them, in repertoire that will work in the particular season, at a fee that falls within the orchestra’s budget. As a manager, you will be taking direction from the artist, who may or may not be flexible about all of these things. The confidence and apparent power you may have displayed in making an offer to an artist, knowing that others could just as well fit the bill, will not sit well with an artist client who wants the engagement but relies on you to negotiate slightly different terms than those on offer. This could range from a higher fee to different repertoire, to a modified rehearsal schedule or media clause. An artist manager actually finds himself or herself trying to please two clients – the artist and the presenter, with whom they hope to book many artists in the future. Ultimately, it is the artist who must remain your top priority. The agility that is required in this balancing act is best learned by observing how the finest managers work and asking for their counsel.

In thinking further about this possible career move, ask yourself whether you are a good listener, consider yourself to be very flexible, have the patience to tackle each challenge that could come with getting all the conditions right, and the humility to accept a non-compromising established artist’s point of view.  Do you have the sense of protectiveness, perseverance and long-term vision that are required to build an emerging artist’s career? Can you derive the same satisfaction from turning down an engagement that you and your artist thought was unwise at a given time as going to contract for a date that seemed just right? If you are not sure, try to speak in confidence to a few managers whom you might meet at conferences or who accompany their artists to engagements with your orchestra. Ask them to describe their day to day responsibilities – both the joys and the challenges. This is really the best preparation you can do. The technical things should already be familiar to you, such as contracts, tech riders and broadcast riders. You might also sound out some of the artists who visit your orchestra as to the nature of their relationship with their manager and what aspects of it are most important to them.

As you have seen me write before, the rewards of a career in artist management are immense and are newly experienced each time one’s artist walks out on stage and delivers a captivating performance. Helping to arrange an artist’s debut in a major city or working with an artist to commission a new piece of music generates a great deal of satisfaction for a manager who can justifiably feel that they are a part of the artist’s ongoing successful career. It is this type of satisfaction that fuels the energy that is needed to develop and help maintain an artist’s career at the highest level. There is also a special joy that comes from working closely with an artist over an extended period of time and becoming part of their lives. This is very different from the brief time you get to spend with artists in your current position. Since there is a real need for new talent on the artist management side, I personally hope that you will decide to cross over the divide. I am happy to answer any future questions you may have!

To ask a question, please write Ask Edna.

© Edna Landau 2011

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A Möst Rewarding Partnership

Thursday, July 28th, 2011

By Edna Landau

To ask a question, please write Ask Edna.

In March of this year, I was invited to speak to a wonderful group of arts supporters in Pasadena, California, by the name of Metropolitan Associates. They were interested in hearing about my career in artist management and in having the opportunity to ask questions about it. In preparing for the talk, I asked what questions I was likely to be asked. Among them was, “What were the most satisfying experiences in your career over the past thirty years?”

Last week, I had occasion to add such an experience to an already sizeable list. As I sat in Lincoln Center’s Avery Fisher Hall for three nights of works by Bruckner and Adams, magnificently performed by the Cleveland Orchestra and its music director, Franz Welser-Möst, my mind wandered back to 1981, only two years into my association with Hamlen/Landau Management, when Charles Hamlen and I decided that I would go to Ft. Worth, Texas, to see if there were any pianists in the Van Cliburn Competition whom we might wish to sign. As it turned out, I was totally smitten with the playing of a young pianist by the name of Jeffrey Kahane, who we were very proud to sign after the competition and who has gone on to a brilliant career as both a pianist and conductor. An unexpected by-product of that trip was meeting a manager from Liechtenstein who raved about a twenty-year-old conductor he was mentoring, for whom he predicted a major career. He was intent on giving him to an American manager who would develop his career slowly and intelligently. At the end of the competition, fortunately for me, he decided that I was such a manager and since I felt that this conductor needed to gain more experience before embarking on an international career, he said he would wait until I was ready.

Five years passed, during which I periodically received reviews, all in German, mostly from youth orchestra concerts. One day I was having breakfast with a leading London agent who told me that an amazingly gifted young conductor by the name of Franz Welser-Möst had just stepped into a cancellation situation and conducted a rather brilliant Mozart Requiem with the London Philharmonic. My heart skipped a beat and I nearly ran back to my office after breakfast, fearing that I would now be too late to sign Mr. Welser-Möst to our roster, since news spreads like wildfire in our industry. Fortunately, that was not the case.

After seeing Mr. Welser-Möst conduct the Tonhalle Orchestra in Zurich later in 1986, we formally agreed to work together and subsequently settled on a first North American season (1988-89) that would ease him into the orchestra system over here while still providing him with a high-level artistic experience. His debut was scheduled with the St. Louis Symphony, followed by weeks with the Toronto and Atlanta symphonies. We gradually built the American career while taking great care to balance it with Mr. Welser-Möst’s increasingly busy schedule and commitments overseas. His debut with the Cleveland Orchestra took place in February of 1993 and he returned nearly every season until he assumed the music director position in September 2002.

This coming season is Franz Welser-Möst’s tenth with the Cleveland Orchestra. There were certainly many highlights along the way in Cleveland, in New York and on tour both here and abroad, but I doubt that anyone present in New York last week who has heard his concerts over the years would disagree that these were among the most sublime. The unlikely combination of Bruckner and Adams seemed not only revolutionary but increasingly logical by the end of the week, and both the cheering ovations and the superlatives of the critics demonstrated the artistic impact of this mini-festival in New York during the hot days of summer. As for me, no longer Mr. Welser-Möst’s manager, I had the luxury of sitting back in my seat at each concert and marveling at the mastery and ease that he brought to the performances, as well as the commitment and virtuosity of the players who seemed totally invested in this special undertaking, confident in the results of their nine year association with their music director, and inspired by the opportunity to play Bruckner symphonies with a conductor who shares the composer’s birthplace and tradition. I reflected on the fact that even a truly great artist’s career develops gradually, and that there is no substitute for the hard work and artistic, intellectual and personal growth that propel it to ever higher levels of success. I felt immensely proud to have had the privilege of sharing that experience with Mr. Welser-Möst over the course of 21 years.

Why, you might ask, am I relating this experience in my blog? It is because I consider myself extremely fortunate to have enjoyed a long career in artist management and I fervently hope that young people with training in music might consider the rewards of such a career. The world of artist management is smaller than the number of deserving artists seeking representation. Very few agencies have sprung up in recent years. I recognize that these are difficult times in which to launch such an enterprise but I believe it is possible to succeed. The first step is to learn the trade by working in (or at least interning at) an established agency and thereby seeing how artists’ careers are managed and developed. (While a degree in arts administration or an MBA can certainly prove helpful, especially if one has hopes of starting one’s own agency, there is no substitute for this type of hands-on experience.) Patience will be required in abundance, as this learning experience is gradual; however, I have seen gifted, enthusiastic individuals, still in their 20’s, advance in their responsibilities from logistical to managerial in only three to five years. Some who seem more destined for a career in sales have become booking representatives in an equally short time. What are the most important characteristics of such people? A knowledge and love of music, excellent organizational and writing skills, healthy self-confidence, good psychological instincts, and sensitivity in dealing with people, openmindedness, perseverance and humility. Above all, they seem to exhibit a sense of joy that derives from feeling privileged to work with some of the world’s most gifted performers and giving them the behind-the-scenes support they require in order to rise above the rigors of a life on the road and reach ever higher levels of artistic success. The thrill of sitting in the audience and knowing that you enjoy such a professional partnership with the artist, or that you booked the concert that enabled the artist to earn the adoration of a cheering audience is an indescribable reward for a job well done. The beauty of it is that it can be repeated many times over in the course of a long and meaningful career.

To ask a question, please write Ask Edna.

© Edna Landau 2011

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