Posts Tagged ‘presenter’

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IS SXSW Being Opportunistic of Oblivious?

Friday, March 3rd, 2017

By Brian Taylor Goldstein

The following situation was recently brought to our attention and we felt obligated to comment:

http://www.avclub.com/article/sxsw-threatens-international-artists-deportation-p-251394?utm_source=facebook&utm_medium=ShareTools&utm_campaign=default

https://www.theguardian.com/culture/2017/mar/02/sxsw-immigration-told-slant-contract-trump-travel-ban

http://www.rollingstone.com/music/news/sxsw-responds-to-artist-immigration-controversy-w470167

Since this issue arose, the festival’s Managing Director has issued multiple “updates” and “clarifications” that are disingenuous or, at best, ill-informed.

First, he contends that the contract provision regarding non-work visa violations is merely “telling the acts what immigration (authorities) would do if terms of their visas are violated” and is intended “to inform foreign artists that the U.S. immigration authorities have mechanisms to create trouble for artists who ignore U.S. immigration laws.” However, if this is true, much of the legal information is misleading and inaccurate. Moreover, if SXSW is, indeed, merely trying to “inform” artists and “warn” them about potential immigration consequences, then why do SXSW organizers themselves threaten to notify U.S. immigration authorities if they discover any infractions? When did SXSW become agents of ICE (US Immigration and Customs Enforcement)?

Second, he explains that “all of the harshest penalties threatened in the contract—including notifying immigration authorities—would only be invoked if somebody did something really horrific, like disobey rules about pyrotechnics, starting a brawl, or if they killed somebody” and that this language is “intended to be, a safeguard to provide SXSW with a means to respond to an act that does something truly egregious, such as disobeying our rules about pyrotechnics on stage, starting a brawl in a club, or causing serious safety issues.” While any such actions on the part of an artist or group would most certainly warrant an immediate expulsion from SXSW, as well as untold liability issues, none of them constitute any kind of immigration violation which would warrant SXSW notifying immigration authorities—particularly when that would only result in all non-US artists at the festival coming under scrutiny of ICE.

Lastly, SXSW’s Managing Director claims that that these provisions have always been part of their agreements. Perhaps this is true. However, if that is the case, then not only were these contractual terms poorly and sloppily drafted. And given the current political madness, now was certainly the time to update and amend them.

While it’s easy to presume that SXSW is using the current immigration situation to coerce artists into not performing any unauthorized SXSW performances, it’s far more likely that they are one of many presenters, venues, and festivals who are only too eager to dispense expertise on issues they actually know nothing about. The complexities of immigration issues for non-US artists are confusing and frustrating enough without adding to the melee with misinformation, however well-intentioned, which only causes more confusion.

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

To ask your own question, write to:

lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. Questions will be answered ONLY in future blogs. 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, Contracts, Law and Disorder: Performing Arts Division, Visas | Comments Closed

Can A Union Walk Away With My Contract?

Tuesday, November 29th, 2016

By Brian Taylor Goldstein, Esq.    

Dear Law and Disorder: 

Is it legal that a presenter can put “strike, lock-out or other labor controversy (including, without limitation, the picketing on the theater by representatives of any labor union having or claiming to have jurisdiction over theater’s employees” into a force majeure clause? I mean, it doesn’t seem fair that an artist that is ready, willing and able to perform should be held “hostage” to a theatre who cannot strike a deal with its stagehands, right? I can’t believe this is a commonly accepted practice. Surely, holding out for a better contract (on either side) is a willful action and the responsibility of those parties to solve so they can fulfil their commitment to the artist, yes?

When you ask “is it legal” do you mean “is it a crime?” No. Assuming you’re not taking out a contract on someone’s life, then anything two parties negotiate and agree to in a contract is perfectly “legal”

Is it common? Absolutely, particularly with professional theaters or any large presenters or theaters who have collective bargaining agreements with various performing arts unions—such as most major orchestras and large concert halls and performing arts centers. In fact, I’ve never seen an engagement contract with a major orchestra or presenter that didn’t have such a clause.

It is appropriate? In my mind, yes. If union stagehands or artists make unreasonable demands and walk out, that’s not always the theater’s or orchestra’s fault. On the other hand, compromise on the party of either party is not always a reasonable possibility at the outset. Neither party should be held “hostage” to the threat of a breach of contract to compel one side or the other to agree hastily to an ill-advised collective bargaining agreement. Regardless, a union or labor issue is almost always a force majeure event. I even include that in my own contracts.

Another consideration is that if the artists you represent are themselves a member of a union—such as a musician who is a member of AFM—then, as a union member, they will be prohibited from crossing the picket line regardless of what the engagement contract says. Indeed, I had a group that had been hired to perform with a major orchestra last year and tried the same approach you a posited—they presented themselves at the stage door claiming that they were ready, willing, and able to perform. However, it turned out they were also AFM members and AFM said that they may be ready and willing, but were not “able.”

Is it fair? That depends on how you feel about the role of unions in the performing arts. I will say this: I have seen just as many artists shoot themselves in the foot as I have presenters try to pass off the losses of their own mismanagement and poor business planning onto their artists. And I know from my own experience that artists are not always their own best representatives in the marketplace. Nonetheless, I, for one, have never believed that the Arts are well served by the same “winner take all” approach that one finds in other industries.

Do you have to agree to it? No. You never have to agree to anything you think is unfair or unreasonable. If the issue is important enough to you and your artist, you can always either walk away or try and negotiate something all parties can accept. Just like a union.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Termination For Convenience

Thursday, April 28th, 2016

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

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

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

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

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

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

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

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

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

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

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

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

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

__________________________________________________________________

 

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Dodging A Bullet With A Contract

Thursday, March 31st, 2016

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

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

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

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

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

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

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

________________________________________________________________

For additional information and resources on this and other legal, project management, and GG_logo_for-facebookbusiness issues for the performing arts, visit ggartslaw.com

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

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

Thursday, February 18th, 2016

By Brian Taylor Goldstein, Esq.   

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

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

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

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

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

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

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

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

It’s Time To Set Your People Free!

Wednesday, February 3rd, 2016

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

What would be your response to an artist who re-books themselves in venues that an agent previously booked for them? Is that legally allowed? We booked this particular group to a major venue 2 years back and now they have re-booked themselves at this same venue by contacting the presenter directly. I can’t really justify holding the presenter responsible or expect them to remember who they booked an artist through 2 years ago. I have been told by other managers and agents about respecting a “presenter of record”, but what about an artist having to honor the “agent of record”?  

If you have (or had) a contract with this group that gives you the exclusive right to re-book them at certain venues for a specific period of time, then my response would be that the group is in breach of your contract. If you have (or had) a contract with this group that entitles you to a commission from any re-bookings at venues where you originally booked them, then my response would be that they owe you a commission. On the other hand, if there is no contractual obligation for the group either to re-book through you or to pay you a commission, then my response to the group would be “well done!”

Other than the fiduciary obligations and duties imposed on agents and managers who represent artists, and the obligation for an artist to pay for services knowingly rendered and accepted, there are no other legal obligations inherent in the relationship. An enforceable obligation for an artist to re-book only through the original agent or to pay a commission for re-bookings must either arise contractually or it does not exist at all. In other words, concepts such as either “presenter of record” or “agent of record” have no legal consequence or validity. While some might argue these are, nonetheless, inherently ethical or professional obligations, the whole idea that someone inherently “owns” either a presenter or an artist is more of a quaint feudal concept than a practical one for today’s cultural marketplace.

I appreciate that it can be incredibly time consuming and laborious to sell an artist to a presenter or introduce an artist to a new venue. However, presumably you received a commission for doing so. That was your fee. Charge more next time or move on. If you want to require an artist to book only through you in the future or require a commission if they re-book at a venue where you first booked them, then you need to have a contract with the artist that spells that out. However, be forewarned that no contracts (not even the ones I craft!) are self-enforcing. If an artist elects to breach your contract anyway, you will still need to weigh the pros and cons of enforcement. In many instances, suing an artist only results in an un-collectable judgment and a waste of time that could have been better spent booking other artists.

_________________________________________________________________

For additional information and resources on this and other GG_logo_for-facebooklegal, 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 Agents, Artist Management, Contracts, Law and Disorder: Performing Arts Division, Presenters, Venues | Comments Closed

International Touring: A Report From The Front Lines

Thursday, November 19th, 2015

By Brian Taylor Goldstein, Esq.

As the U.S. Legal Advisor to the International Artist Managers’ Association (IAMA), I’ve been asked to prepare an update on a variety of current issues involving international touring at the next membership meeting in London on November 27, 2015. Not only do I adore IAMA, but as this would provide a lovely excuse for my wife and I to avoid having to spend Thanksgiving with either of our families, I was more than happy to agree. Robyn Guilliams and prepared this report, I thought I would share it with all of you…

Visa Stercus

1.  USCIS is presently taking a minimum of 8 – 10 weeks to process visa petitions at both the Vermont and California Service Centers. This means that, as of today, if you need to have an artist enter the U.S. any earlier than March 2016, you need to pay the additional $1225 for premium processing. (The official visa processing times that USCIS posts on its website have always been purely propaganda and should always be disregarded as such.)

    • As a reminder, visa petitions can be filed up to one year in advance of the performance date.

2.  For those of you who have Canadian musicians eligible for P-2 visas, we are receiving reports that Canadian AFM is experiencing a backlog in preparing filing petitions. This is in addition to the current USCIS processing time of 8 – 10 weeks.

3.  I’ve said this before, but the message not getting through, so its worth repeating. ARTISTS CANNOT DO ANYTHING IN THE U.S. ON A TOURIST VISA OR ESTA (Visa waiver) STATUS!!  Please stop listening to the colleges, universities, and festivals that tell you otherwise. They have nothing to lose other than perhaps having to find a replacement artist. On the other hand, I have recently learned of two artists—one from Germany and the other from Spain—who have had their ESTA status permanently revoked because they tried to enter the U.S. in ESTA status to perform in the U.S. Both artists had entered multiple times in the past and one were merely entering to “perform” a master class.

    •  It doesn’t matter whether an artist is paid or unpaid, whether the concert is free, or whether the performance is for educational purposes. They must have an appropriate visa—most often an O or P visa. United States Immigration Officers are taking this very seriously.

4.  In preparing visa petitions, please start collecting and providing the evidence USCIS wants as opposed to giving them what you have lying around in your press package. The days of being able to supply a bio and a few press articles are long gone and we are seeing more and more visa denials and delays because of this.

    •  I recently, and with much regret and sadness, had to advise a client to re-cast a role because the artist’s European management was simply refusing to cooperate in our efforts to obtain a visa for the artist. (In case that manager is reading this…no, USCIS will not “just google the artist to find out how famous he is!”)

Tax Stercus

1.  For those of you waiting to receive a refund check from the Internal Revenue Service (IRS) for a non-U.S. artist who has had 30% withheld from their gross engagements fees and are due a tax refund, please be advised: the check is NOT in the mail, and won’t be for the foreseeable future. The IRS has added an extra layer of scrutiny to nonresident tax returns involving refunds. Aside from the usual 2 to 3 month processing time, there is a second review to be sure that everything on the 1042-S form is accurate and complete.  If the IRS senses ANYTHING off, the taxpayer will receive a letter asking for more info. To be fair, the IRS has announced that it will be paying interest on all overdue refund checks. To be practical, it doesn’t matter how much interest they offer to pay if, in fact, they never issue the refund.

    • Bottom Line: There is currently a very good chance that if 30% is withheld from an artist’s engagement fee, the artist will not get that money back…or, at least, not for the foreseeable future. Please plan cash flow accordingly.

2.  A Central Withholding Agreement (CWA) is still the best way of avoiding or reducing the mandatory 30% withholding required from all engagement fees for non-U.S. artists. To be eligible for a CWA, among other requirements, an artist must have filed a U.S. tax return for each prior year in which they have ever performed in the U.S.– even where no tax was owned. If an artist has not filed past U.S. tax returns, he or she will be required to file them as a prerequisite to obtaining a CWA. Unfortunately, we are seeing a sharp increase in the instances where filing such past tax returns is triggering an IRS audit in which they are requesting documents and records from the artist’s world-wide income.

    • In this one particular area, the IRS has displayed a remarkable degree of efficiency in identifying artists who have simultaneously made the least amount of money and kept the least amount of records to prove it.

3.  Obtaining Social Security Numbers (SSNs) and Individual Tax Payer Identification Numbers (ITINs) continue to be a challenge. While SSSs are not any easier for an artist to obtain, they have not become harder. ITINs, on the other hand, have become increasingly difficult, if not impossible, to get. Despite both staffing and budget cutbacks, the IRS has been requested to scrutinize ITIN requests more closely—particularly with regard to proof of identity. For most non-US residents, the most obvious and best proof of identity is a copy of their passport. However, the IRS lacks the resources and training to evaluate how to tell legitimate passports from forged ones. As a result, the IRS is now only accepting copies of passports that have been certified by the actual agency that issued the passport. However, even when this is provided, we are seeing the IRS send notices requesting that the actual, physical passport be sent to them instead. DO NOT DO THIS! You will never see that passport again!

    • There IS one option for some Europeans:  There are IRS offices located in the U.S. Consulates in Paris and London. One can go to these offices and request an ITIN in person (with an original passport, which the IRS will review and return on the spot.)  HOWEVER – one can obtain an ITIN only if one has an “immediate tax need”, such as filing a return. So, if requesting an ITIN in the Paris or London Consulates, one must also bring a completed tax return in hand, ready to file.

4.  We are seeing a large number of U.S. presenters–especially those based at colleges and universities—insisting that non-U.S. artists are legally required to have either a SSN or ITIN in order to perform or get paid in the U.S. Please be advised: There is no such law! While such numbers may make book keeping and accounting easier for the presenter, there is no law that requires an artist to have either one. Not only are SSNs and ITINs not proof of work authorization, but as we addressed above, many artists will be unable to get them in advance—if ever.

5.  Canada requires 15% withholding for gross engagement fees of non-Canadian performers performing there (similar to the 30% withholding requirement in the U,S.) Canada Revenue allows performers to file a waiver/reduction request to reduce/waive the withholding (an R-105 request). On their website, Canada Revenue indicates that the deadline for filing such a request is 30 days prior to the first payment due.  However, it’s taking them MUCH longer to process the requests. So, we are recommending that you file your request with them AT LEAST 60 days prior, or earlier, if possible.

General Travel Stercus 

1.  There is nothing new to report with regard to the ban on bringing musical instruments into the U.S. that contain ivory or other protected materials. United States Customs and Border Patrol isn’t strictly enforcing this with any degree of regularity. However, if any orchestras are touring and don’t want to take the risk, we are recommending that they contact Heather Noonan (hnoonan@americanorchestras.org) at the League of American Orchestras (http://americanorchestras.org) who is among the leading and most effective legislative arts advocates in the U.S. and is happy to talk to them about the “Instrument Passport” process.

    • The League and others are continuing to lobby for specific amendments, including exemptions to the rules for “personal effects” (which would include carry-on musical instruments).

2.  There has been some recent concern about Amtrak, the U.S.’s ersatz rail service, implementing a new policy requiring additional seats to be purchased for oversize musical instruments which cannot fit into overhead compartments. To date, this policy has been posted, but not enforced. We are recommending that artists and ensembles that intend to use Amtrak to travel to engagements within the U.S. check with an Amtrak representative in advance of the tour…and then be prepared for whatever they are told in advance to then be either incorrect or disputed by Amtrak at the actual time of travel.

Other Stercus

1.  When negotiating fees for U.S. engagements, please remember to specify the currency in which the artist is to be paid, including exactly how and when the exchange rate is to be calculated. We are seeing an increased number of misunderstandings over this point.

    • At the same time, use this as an opportunity to clarify any other costs or deductions (such as taxes, visas costs, hotel, travel, etc.) which either are or are not to be included as part of the engagement fee.

2.  Too many people are still relying on general, vague, boilerplate, or unspecific contractual language to take the place of actual negotiation. Do not rely on the misguided belief that there are standard legal terms and procedures that magically govern engagements and bookings when words fail. If you want something, or don’t want something, say something—or, preferably, write it down.

3.  When dealing with performances of new works or contemporary music, bear in mind that licensing laws differ. What’s in the public domain in Europe may not be in the United States. Even a re-arrangement or re-orchestration may not be permissible in certain countries.

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Taxes, Touring, Visas | Comments Closed

Press “Pause” On That Recording

Thursday, October 29th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

In reviewing an engagement contract for one of my artists, I was surprised to see that the presenter wants the right to record the artist’s performance as a “work-for-hire”. The Presenter says that this is a standard requirement and also that its reasonable because my artist is protected by language in the contract that says: “In no event shall Producer have the right to exploit the recordings and/or an audiovisual program in connection therewith in any other manner other than non-commercial, educational and/or charitable uses or exhibitions without Artist’s prior written approval and without a separate agreement, negotiated in good faith with respect to any such uses or exploitation thereof.” Is this standard these days? Should I advise the artist to agree to this?

Standard for whom? As I have said, and will keep repeating until someone listens, no terms are “standard”—not recording rights, nor commissions, nor exclusivity restrictions, nor unilateral cancellation rights, nor any other nonsense which parties like to throw at one another under the banner of “standard.”

While, ultimately, it’s your artist’s decision, not yours, you should advise your artist not to agree to the language the presenter has proposed. The proposed language reflects a common mistaken belief within the performing arts part of the entertainment industry that so long as you don’t sell a recording, then all other uses are inherently “non-commercial.” However, particularly in the classical world where a classical recording hasn’t actually generated a profit since the release of “Fantasia”, no one really “sells” recordings anymore—at least, not for a profit. This means that, except in limited situations, there really are no practical uses or exhibitions for recordings other than “non-commercial, educational and/or charitable uses or exhibitions.” This further means that if you were to agree to the proposed terms, the presenter could do just about anything they wanted with your artist’s recording. Their proposed “protection” is meaningless.

Just because a recording isn’t sold, is unprofitable, is used for education, or is used by a non-profit organization does not make it inherently “non-commercial” or valueless. A recording still has value. Using a recording to promote the presenter or further a presenter’s mission provides value to the presenter which the presenter has not paid for. Otherwise, why does the presenter want it in the first place? Presenters need to stop believing that just because they engage an artist and pay for the artist’s performance then that also includes the right to record the artist’s performance and “own” the recording. In the real world, you only get what you pay for. When you buy a car, does it come with a chauffeur? It’s not merely presumptuous, but it completely demeans the value of the artist’s work—which, quite frankly, happens all too often these days by the same parties who should know better.

In addition, an artist always needs to be able to control how the artist is seen and heard. A poor recording of a brilliant performance could have devastating impact on an artist—particular a young or developing artist. Even a good recording, if released in its entirety, could limit an artist’s ability to release a recording of the same work in the future if it has already been made available for free.

While I generally have no objection to a recording being made, it’s the uses of and rights to the recording that need to clearly defined—and limited. First and foremost, unless the engagement fee includes an additional fee for “ownership” of the recording or the opportunity to perform with a particularly presenter is of such magnitude as to provide additional value to the artist, then the whole concept of a “work for hire” should be off the table. Instead, if anything, the presenter should only be able to use limited excerpts of the recording for limited purposes. Just as importantly, the artist should be always able to approve any recording to make sure that the artist is pleased both with her performance as well as with the quality of the recording itself. Third, whatever rights are granted to the presenter in an artist’s recording, should be granted to the artist as well. If the presenter gets the right to make and use a recording, then the artist should get a copy for the artist’s own promotional and marketing purposes as well. Any restrictions or approvals should be mutual.

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Paying By the Numbers

Thursday, October 15th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

A presenter is refusing to pay one of our artists who has an O-1 visa, but does not have a Social Security Number. Does a foreign artist who is performing in the U.S. under an O-1 also have to get a Social Security number in order to get paid?

Many presenters and venues—particularly those affiliated with university or other academic institutions—have an affinity for imposing arbitrary policies and procedures and insisting that they are legal requirements. To be fair, many of those presenters and venues are merely passing along edicts that have been dictated to them by other departments and offices within their labyrinthine institutions who are more familiar with hiring snow plow services than with engaging non-U.S. artists.

Non-U.S. artists are not required to obtain anything other than an appropriate artist visa (usually, but not always, either an O or a P visa) in order to be authorized to perform legally in the U.S. Whilst it is not uncommon for presenters and venues to insist that a non-U.S. artist have either a Social Security Number (“SSN”) or the SSN’s evil twin, an Individual Taxpayer Identification Number (“ITIN”), as an additional condition for an artist to be paid, that is not a legal requirement. More often than not, it is merely a requirement of the presenter or venue’s finance department or booking software which cannot physically write a check without having either a SSN or ITIN. Provided the artist has an appropriate artist visa, he or she is legally permitted to be paid and, unless there is an express contractual provision to the contrary, the presenter is legally required to honor an engagement contract and to pay the artist for services performed.

SSNs and ITINs have absolutely nothing to do with work authorization or immigration law. Rather, they are creatures affiliated with U.S. tax obligations and tax returns. An artist will need either an SSN or an ITIN to file a U.S. tax return, which artists are required to do—especially if they want a refund of any engagement fees that might have been subject to 30% withholding. However, if the artist elects not to file a U.S. return and just let the IRS keep their money, that’s entirely at the discretion of the artist. The failure or an artist to have a SSN or ITIN cannot be used as an excuse by a presenter or venue to pay the artist or otherwise honor a valid engagement contract.

_________________________________________________________________

For additional information and resources on this and other legal, project management, and GG_logo_for-facebookbusiness issues for the performing arts, visit ggartslaw.com

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Understanding Legalese

Thursday, May 28th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

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

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

This is legalese:

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

 This is not:

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

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

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

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

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

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

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

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

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

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