Posts Tagged ‘Liable’

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Agents and Artists: Who Controls the Money?

Thursday, October 17th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

I am considering working with an agent, but almost every agent I speak with wants to collect my engagement fees on my behalf. Why can’t I collect my fees and just pay the agent? If an agent collects my fees, should I ask for a separate bank account? What about statements? Is it reasonable to ask for monthly accountings? When do I get paid? What’s standard?

As the artist’s representative, its quite common for an agent or manager to accept fees on behalf of an artist. Among other reasons, it allows you to focus on your performances, especially when touring, while allowing your agent to follow up on contracts, payments, and other logistical issues. However, just because a practice is “common”, that does not make it mandatory.

Should you agree to permit a representative to collect fees on you behalf, agents and managers are subject to state “agency laws” which impose certain obligations and duties. (Agency laws should not be confused with “licensing” requirements. Agency laws govern any relationship where one party acts on behalf of another and apply regardless of licensing requirements.) Pursuant to most state agency laws, when an agent or manager accepts fees on your behalf, its your money, not theirs. They must hold the money “in trust” until it can be turned over to you. As such, agents have a fiduciary obligation to treat that money separately from their own. If the parties mutually agree, the agent can deduct his or her commissions, as well as any other expenses, but the balance of the money belongs to you and the funds must never be co-mingled with the agent’s own money.

While an agent is not necessarily required to keep an artist’s money in a separate bank account, it’s a highly advisable business practice for an agent to maintain a separate trust account to hold the fees collected on behalf of all of the artists on their roster. This protects both the agent as well as the artist. For one thing, an agent is legally required to account for all money collected and held on behalf of an artist. Placing the money into a separate trust account not only makes such accountings easier, but also helps to ensure than an artist’s money doesn’t accidentally get co-mingled with the agent’s own money. For instance, when an agent collects an engagement fee, the fee should go into the agent’s trust account. If the agent is owed a commission, the agent can transfer the commission from the trust account into the agent’s personal account. This is especially important in the case of deposits. In the event an engagement is cancelled, a deposit may need to be returned. Having the money held in a separate trust account ensures that the funds are not prematurely dispensed, for which both the artist and agent could be liable.

As for whether you should demand your own, personal trust account, that’s probably overkill. Even attorneys are not required to do that. Provided the agent keeps accurate books and records, its perfectly acceptable for an agent to have a single trust account where all of the fees collected on behalf of agent’s artists are kept separate from the agent’s own business accounts. It’s then a simple matter of bookkeeping to determine which money belongs to which artist.

As for whether you should ask for monthly accountings, you should definitely ask for accountings as agents are legally required to provide them. Whether or not “monthly” is reasonable depends on the specific circumstances. If you are performing monthly, then monthly may be appropriate. Otherwise, quarterly may be more reasonable. Many agents will provide an accounting each time you are paid, as opposed to at fixed intervals.

Always remember: nothing is “standard.” Agents and managers work for you, not the other way around. You have a right to ask for whatever terms and conditions you want. Of course, that doesn’t mean they have to agree, but being able to post questions and have your concerns respected and reasonably addressed, even if you don’t get the answers you want, is key to determining whether or not to pursue an agent relationship.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

The Power of Contractual Silence

Thursday, October 10th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

 

We booked an artist to perform at our theater, but ticket sales have been much lower than we expected. The show is a month away. We are a small venue with a small budget, and can’t afford to present an artist if we can’t sell enough tickets to cover the costs. We signed an engagement contract, but it doesn’t cover cancellations, unless it’s for illness or weather related. As the contract is silent on this, I offered the agent what I thought was a standard buy-out fee (25% of the total fee), but he is insisting on the full amount. That doesn’t seem fair.

 

What doesn’t seem fair? That you signed a contract and the agent is expecting you to live up to your end of the bargain? The whole point of a written contract is to memorialize all of the terms, understandings, conditions, and requirements of a business transaction—even if the transaction is in show business. If a party fails to abide by a term, understanding, condition, or requirement of a written contract, then that party has “breached” the contract.

Just like music is a combination of both sounds and silence, terms and requirements that are not part of a written contract are just as important, if not more important, than the ones that are. This is because only terms, understandings, conditions, and requirements that are actually written down are considered to be part of a legally binding contract. So, for example, if an artist wanted to be paid his fee on the night of the performance, but the engagement contract only states the amount of the fee and not when it is to be paid, then the presenter is not obligated to pay the fee on a specific date. Similarly, if an engagement contract doesn’t have a cancellation clause, then there is no right to cancel and neither party can cancel without the consent of the other. This means that, if the artist gets a better offer, she doesn’t have the right to cancel the engagement. However, it also means that you don’t have the right to cancel, either, just because you’re not selling enough tickets.

I frequently hear both agents and presents talk about “industry standards and customs” as a way to resolve contractual disputes or re-negotiate contracts they didn’t bother to read in the first place. Except in rare circumstances, industry standards and customs are completely and utterly irrelevant. Moreover, if you gathered four arts professionals in a room and asked them to describe industry standards and customs on any given topic, you would get four different answers! If a contract fails to address an issue or condition that is important to you, you cannot presume that you get to resolve the silence in your favor and do what you want. Rather, if the contract is silent on a specific issue, then both parties must agree on a resolution of that issue.

In your case, if your venue’s policy is to cancel an engagement if you can’t sell enough tickets, then you need to make sure that this policy is written into every engagement contract you sign. Otherwise, you have no right to do so. If you cancel, and the artist or the artist’s agent doesn’t agree to accept a lesser amount, you are liable to pay the full amount of the engagement fee—so, assuming there are no other cost savings to you in cancelling and still paying the full fee, you might as well let the show go on.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

A Manager’s Deposit of Trouble

Wednesday, July 17th, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: We are a small classical music presenter. Several months ago, I booked an artist for a performance this fall. Recently, I received a phone call from the artist’s manager asking for a deposit. Usually, we don’t pay deposits, although, sometimes we will if it’s an artist or manager with whom we have never worked before. However, we’ve worked with this manager before and she’s never asked for a deposit before. When I asked her about it, she said that she (the manager) was having a slow summer and that she needed the money to give her some cash flow to “tide her over” until the fall. She threatened to cancel if I didn’t agree. Is this legal? As a general rule, I’m a big fan of deposits. They provide artists with some “leverage” in the event of a cancellation and they provide presenters with some assurance that an artist has, in fact, been “booked.” However, once all key terms have been negotiated and agreed upon, whether or not a written booking agreement has been signed, then a manager cannot retroactively “require” a deposit. The requirement of a deposit is a key term which needs to be discussed, negotiated, and agreed upon at the outset of discussions. If the artist were to cancel because you refused to pay a deposit you never agreed to pay in the first place, then the artist would be in breach of the booking agreement. But that’s not really the problem here. The problem is that the manager volunteered that she was asking for the deposit not for the benefit of the artist, but for the benefit of the manager herself. It would be different if the manager wanted the deposit to reserve airline tickets or advance costs to cover the artist’s out-of-pocket expenses. However, according to you, that’s not what the manager said. She said she wanted it to “tide her over” for the manager’s own cash flow purposes. Based on that statement, and her subsequent threat to cancel if you refused to pay the deposit, the manager’s actions are not only unethical and unprofessional, in my opinion, but, more importantly, highly illegal. Managers and agents are legally bound to act only on behalf of and in the best interest of their client (the artist) and not on behalf of themselves or anyone else. In legal terms, these obligations are called “fiduciary duties.” Managers and agents can take no actions which are not authorized by the artist and most certainly cannot treat the artist’s money as if it were their own—including asking for and using deposits to float themselves loans to cover their own cash flow needs. This is why, among other reasons, managers and agents are supposed to keep their own, personal operating accounts separate from their client’s (artist’s) accounts. This should not be confused with legitimate situations where managers and agents sometimes ask presenters to split an engagement fee into two payments and pay a commission fee directly to the manager or agent and the balance to the artist. While I find this to be an ill-advised and awkward business practice, it’s neither illegal nor unethical. While I suppose its entirely possible that, in this case, the manager was acting with her artist’s knowledge and authority, I seriously doubt it. This means that the manager was acting out of her own self-interest and not in the best interest of her artist, is in breach of her fiduciary duties, is no longer acting in her legal capacity as a representative of the artist, and, in the event of a cancellation, would be personally liable for the return of the deposit and any damages. Given the manager’s self-admitted cash flow problems, that’s probably a risk you don’t want to take. I’d like to think that the manager is acting out of a genuine confusion over the duties agents and managers owe to their artists. Sadly, this issue continues to confuse even experienced managers and agents who believe that their artists work for them and not the other way around. Regardless, in terms of red flags, this one is ten feet tall and on fire. Run away! __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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

Who’s Responsible For Performance Licenses?

Wednesday, June 26th, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: In all of my artist’s booking contracts, the presenters are required to obtain ASCAP, BMI and SESAC licenses. I recently received a contract back from a venue in which they crossed out that language. They told me that their policy is not to get these licenses and that the artist is responsible for obtaining them. It was my understanding that it was always the venue’s or presenter’s responsibility to obtain the performance licenses from ASCAP, BMI, and SESAC. Am I wrong? You’re not wrong, but you’re not entirely correct either. The truth is that it is the legal responsibility of all parties to make sure that the proper licenses have been obtained for a performance. Which party actually obtains them and who bears the costs is a matter for negotiation. Whether it’s a festival, a school, a nightclub, or a large performing arts center, non-profit or for-profit, it’s the legal responsibility of the owner/operator of a performance space/venue to ensure that the necessary rights and licenses have been obtained with respect to all copyrighted music which is performed at that venue. (Actually, this legal responsibility is not limited to performance rights, but extends to dramatic rights, synchronization rights, broadcast rights, and all other required rights and licenses which pertain to music, images, trademarks, recordings, images, or other protected rights or materials which are used as part of the performance.) However, it’s equally the legal responsibility of the artist, and in some cases, the producer and promoter, to ensure that they have all of the required rights and licenses, including performance licenses from ASCAP, BMI and SESAC. Why? Because if an unlicensed song is performed at a venue, then the US Copyright Act allows all the parties involved in the performance—the artist as well as the venue/presenter, the producer, the promoter, and anyone else involved in the performance—to be sued by the publisher or copyright owner. Stealing a song is like robbing a bank: the entire gang is arrested; regardless of who broke open the safe, who drove the get away car, or who simply served as look out, they all participated in the robbery. I am familiar with many venues which do not want to be burdened with the perceived cost and difficulty of obtaining performance licenses (which, depending upon the specific circumstances, may be neither costly nor particularly difficult), refuse to do so, and insist on the artist obtaining the licenses. However, in my opinion, for reasons I have written about in earlier blogs, this is a foolish policy. In practice, it’s simple easier for venues and presenters to obtain ASCAP, BMI and SESAC licenses than the artist. The venue can purchase a blanket license from each organization that permits all of the music in their catalogs to be performed by any artist at the venue during the license period. These licenses can cover an entire year or just a specific festival or event, and are priced based on numerous factors, including number of performances, ticket prices, size of the venue, etc. With the blanket licenses in place, the artist simply needs to show up. If a venue or presenter prefers not to obtain such licenses, then the artist or performer can certainly do so themselves. However, if no one obtains the licenses, then everyone is liable. Quite simply, whether the venue/presenter requires the artist to obtain the performance licenses or the artist insists that the venue/presenter obtains the performance licenses, passing the responsibility on to another party will not relieve either party from ultimate responsibility if the other party fails to do so. In other words, there is no contract, release, or any other document which will protect you from liability should the necessary licenses not be obtained. This is why, among other reasons, if I operated a venue, I would much rather rely on myself to obtain the licenses than depend upon another party to do so. In your case, if the venue refuses to obtain the ASCAP, BMI or SESAC licenses, then you and your artist have two options: either the artist agrees to obtain the licenses or the artist refuses to perform. Electing 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 is not an option; 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. _________________________________________________________________ “Law and Disorder: Performing Arts Division” will be taking a break between July 1 – July 14. Our next post will be on July 17. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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

Can We Loan Sheet Music?

Wednesday, November 28th, 2012

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

May we loan music that we own for orchestral performances by other non-profit organizations (schools, community orchestras, etc? Would the other group still need to obtain performing/recording permissions? Could we be liable if they don’t?

It depends how define “own.” If by “own”, you mean that you purchased the sheet music, then, yes, you can loan it or give it to whomever you want. It’s like purchasing a book or CD: when you’re done reading it or listening to it, you can loan it to a friend, donate it to a library, or even re-sell it. You just can’t copy it, perform it, or record it—and neither can the organization you loan it to.

Ownership of a physical copy of books, sheet music, CDs, or other copyrightable material is not the same thing as owning the copyright. Owning a physical copy merely gives you the right to physically possess it—or give it away—not do anything else or convey any other rights. So, if you’ve purchased the sheet music and you loan or give it to another organization, regardless of whether or not the other organization is a non-profit or for-profit, they will still have to obtain the necessary rights if they want to perform or record it. Should they fail to do so, they will be liable for copyright infringement, not you.

If, on the other hand, you have merely “licensed” or “rented” the sheet music, then you cannot loan or give it to anyone else. That would be like sub-letting an apartment without permission. When you license or rent, its just for you.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Not Even God Can Act Without A Contract!

Wednesday, November 14th, 2012

By Brian Taylor Goldstein, Esq.

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

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

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

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

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Are We Liable For A Backstage Brawl?

Wednesday, July 11th, 2012

By Brian Taylor Goldstein

Our stage manger slapped one of our actresses during a rehearsal. Are we liable?

Anyone who understands the unique stresses and pressures of the performing arts should expect a certain degree of screaming, emotional meltdowns, tantrums, and other inappropriate behavior. Welcome to the theater. However, physical violence crosses the line and, among other things, can most certainly get your organization sued!

Anytime an individual provides services on your behalf—regardless of whether or not they are an employee, independent contractor, or even a volunteer—you can be liable if they hurt or injury someone “in the course of performing their duties.” Let’s say, for example, that one of your volunteer ushers decides to forcibly eject a patron who refuses to shut off his cell phone, injuring the patron in the process. Your organization could be liable because the usher was performing services on your behalf and was not properly trained or supervised. (The usher could be sued, too, but your organization would be included in the lawsuit.) On the other hand, let’s say you arrange for a volunteer to pick up an artist from the airport and drive him or her to the theater. If, on the way, the volunteer decides to stop and run a few personal errands and gets into an accident, you would not be liable. Once the volunteer deviated from his or her job by running a personal errand, he or she was no longer working on your behalf. Get it? These things are very fact specific.

In the case of your stage manager, was this a personal fight? Just because the stage manager slapped the actress doesn’t necessarily mean your organization is liable if he or she wasn’t acting in the capacity of a stage manager at the time. However, let’s say that the actress refused to follow the stage manager’s directions, a fight ensued, and the stage manager decided, out of frustration or poor anger management skills, to slap the actress. You could most definitely be sued because the stage manager was clearly acting in his or her capacity as a stage manager.

If you had strict written policies prohibiting physical violence, assaults, battery, etc, you could always argue that (1) you had no reason to believe that your stage manager was violent or had assaulted others in the past and (2) that he or she was violating strict company guidelines and procedures. (The stage manager could still be personally sued for assault and battery, but these arguments might get your organization off the hook.) However, now that this has happened, you would most definitely be liable if this ever happened again and you took no steps to prevent another similar incident.

You would certainly be warranted in dismissing the stage manager and refusing to let him or her work with you again. Short of that, at the very least, you should ensure that there are written policies and procedures for all volunteers, employees, independent contractors, and any one else who provides services for your organization. You need to make sure everyone understands that this kind of behavior will not be tolerated.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM 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 Arts Management, Employees, Independent Contractors, Law and Disorder: Performing Arts Division, Liability | Comments Closed

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