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Thursday, January 28th, 2021

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

By Brian Taylor Goldstein

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

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 However, much will also be due to old and outdated business models and practices that were just waiting for an unperceivable pufflet of wind to topple them, much less the ravaging hurricane of a global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

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

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

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

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

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

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

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

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

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

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

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

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

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

VISIT OUR NEW WEBSITE: ggartslaw.com

 

 

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THE OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

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

 

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

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

Thursday, February 18th, 2016

By Brian Taylor Goldstein, Esq.   

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

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

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

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

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

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

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

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

A Tribute To Copyright Infringement

Wednesday, September 16th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

Could you please advise how a copyright application would be filed for a tribute musical of deceased popular singer? The show would consist of all of his songs. Would it be better to file it as a compilation or concert? Can all the songs be included in one application? Thank you

Is this, by any chance, the long awaited musical “Indian Love Call”, a tribute to the intoxicating sounds of Slim Whitman? I heard there’s a lost studio recording somewhere featuring Slim Whitman, Tiny Tim, Axl Rose, and Celine Dion performing a cover of “Total Eclipse of the Heart.” It would make a great Act I finale.

For most musicals, a copyright registration application would include the book, music, and lyrics written by the authors. However, tribute musicals such as Mamma Mia, Jersey Boys, All Shook Up and Beautiful, which are also known as “jukebox” musicals, are different in that they typically feature works which has been previously performed and composed by others. The authors and creators of such musicals must license all the music from the original composer or composers. This gives them the rights to use the music and lyrics in the musical, and usually to record a cast album, but gives the creators of the musical no ownership rights in the individual works themselves. You cannot claim copyright ownership, or file a copyright registration, with regard to any material that is not original or which you do not either own or create yourself.

Producing a tribute musical about a singer can pose a number of additional challenges in that, unless the singer also wrote the music he sang, you would need to obtain licenses from the publishers and composers of the songs the singer performed. In addition, the name, appearance, or costume of the deceased singer might be considered trademarks controlled by his estate.

If your production is a scripted musical (ie: with a story, plot and characters), as opposed to a concert, then you could claim a copyright in the book and spoken dialogue, and, perhaps, the order in which the music was performed, but not in the music and lyrics themselves. Even arrangements or orchestrations would need to be licensed from the original composers and could not be included in your copyright registration unless your license agreement permitted you to do so.  If your production is actually more of a tribute concert, then there may actually be very little you can copyright or own.

The whole point of registering a copyright is to claim ownership and stop others from copying or infringing your work. However, in the field of tribute performances, there may actually be more the publishers or composers of the music and the estate of a deceased singer can do to stop you than you can do to stop others. Remember, a “tribute” is not a magic word that means “copyright or license free.” The entertainment field is littered with the carcasses of concerts and performances that were stopped because the subject of a tribute did not like, want, or approve the gesture. In any artistic venture, before investing the time, talent, and energy it takes to create and protect your work, you first want to make sure you are not improperly using the time, talent, and energy of other artists that came before you.

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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.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 Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Trademarks | Comments Closed

When Is A Plumber Worth More Than A Violinist?

Thursday, July 9th, 2015

By Brian Taylor Goldstein, Esq.   

We spent a lot of money making a CD to promote our orchestra. Now the composer’s publisher wants mechanical royalties. I just don’t understand why I have to pay mechanical royalties for a CD I am not selling, just giving to donors. Doesn’t the Composer want people to listen to his music?

Does your orchestra sell tickets to its concerts? Why? Don’t you want people to come and listen to the music?

While everyone in the performing arts end of the entertainment industry appreciates the importance of music, not as many appreciate or understand its value. In fact, many don’t like discussing commercial or business concepts like “value” at all. However, an artist’s time and talent is the artist’s service. It’s no less of a commodity that any other service like a plumber or electrician. While many would argue, and I would agree, that an artist is worth even more, when a pipe once burst in my house in the middle of the night, I was far more relieved to see a plumber show up than a violinist!

Whether a musician’s performance is enjoyed live or on a recording, the musician needs to be paid for providing his or her talent. Musicians have bills to pay just like everyone else. For the same reason, when a composer’s composition is performed, either live or on a recording, he or she needs to be paid for providing his or her talent in creating the composition in the first place. While it’s true that some composers receive commissions to create a work, not all do, and a commission fee only pays for the creation of the work itself. Just like an author gets a royalty every time her book is sold and a playwright gets a royalty every time his play is produced, a composer gets a royalty every time her music is performed or a recording made of the performance. When a composition is performed, the performer must pay a performance royalty, most often by obtaining a performance license from ASCAP, BMI, or SESAC. When a composition is recorded, the performer must pay a “mechanical royalty” (an outdated term for a “recording royalty”) directly to the composer or the composer’s publisher. The mechanical royalty is based on the length of the composition and how many copies are made of the recording of the performance of the composition.

I appreciate your frustration in having to pay mechanical royalties for CDs that are given away, but that’s like saying that musicians should be paid less if a concert is free or only based on the number of tickets sold. Whether or not you choose to sell the recordings does not change the fact that you recorded a performance of the composer’s composition. Just because you want to purchase a television to donate to an orphanage doesn’t mean that Best Buy is going to let you walk out of the store with it for free.  While many artists do graciously give freely of their time and talents in promoting the performing arts, that decision is not yours to make for them. Largesse and munificence should be offered, never presumed. If yours is the first recording of this particular work and the composer is not already widely performed and listed to, I bet the composer would consider receiving a number of free CDs in lieu of mechanical royalties.

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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.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 Contracts, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Presenters, Publishing, Recordings | Comments Closed

Don’t Be Shy About BMI

Wednesday, March 25th, 2015

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

Hypothetical: A theatrical production company would like to produce a tribute musical production to a songwriter using only the songwriter’s music being performed by the cast of the production. The production would be held at a community theater which is not licensed by ASCAP or any licensing authority. The production company is unsure of its legal standing in carrying out this this production, and would like some general guidance. Where could they go to determine the requirements, if any.

If any? There are always requirements. I don’t know anything that doesn’t require something in return.

The production company has no legal standing to carry out this production without first obtaining the necessary licenses. If the songs are being performed as part of a “concert” style performance—that is, being sung without props or costumes and not as part of any plot, story, or narrative—then the producer would merely need to get a performance license from whichever one of the three major performance license agencies the songwriter belongs to: ASCAP, BMI, or SESAC. If the songwriter doesn’t belong to one of these (which is unlikely, but possible), then the licenses would need to be obtained from the songwriter directly.

It doesn’t matter whether or not the performance is being held at a community theater or whether or not the community theater holds a license with ASCAP, BMI, or SESAC. Performance licenses must still be obtained and either you (hypothetically, of course) or the theater must obtain them. There is no legal requirement that the venue be the one to obtain performance licenses. While its probably easier for the venue to obtain the licenses, it is the responsibility of all of the parties involved in a production—from the producer and performers to the venues and agents—to ensure that someone obtains the necessary licenses. Otherwise, everyone will be held responsible and, hypothetically, you don’t want that. Also, if this is a production which the production company envisions producing elsewhere, then it probably makes more sense for the production company to get the licenses itself.

If the production company wants to obtain the licenses, it would simply contact ASCAP, BMI, or SESEC directly. However, there are a few additional issues that could quickly change the simple to the sublimely complex:

1) If what you are “hypothetically” envisioning is not so much a concert “tribute”, but, rather, a “juke box musical” where the songs of one composer are used as the score of an actual musical drama or to tell a story (ie: Mamma Mia, Jersey Boys or Beautiful), then neither ASCAP, BMI or SESAC can help you. You will need dramatic licenses, not performance licenses. Dramatic licenses must be obtained directly from the songwriter or the songwriter’s publisher. If this is the case, you should be prepared for a resounding and thunderous “no.”

2) Even if you are planning a more traditional concert tribute such as Side-by-Side-by-Sondheim or An Evening of Andrew Lloyd Webber, many musical theater and other composers have restrictions preventing more than a specific number of their works from being performed as part of the same concert without obtaining additional rights directly from the publisher.

Nevertheless, contacting ASCAP, BMI and/or SESAC is always the best place to start on any licensing journey. Don’t be shy. They want to have their artists’ works get performed as much as you want to perform them. However, they also want to make sure their artists get paid, just like you do. Assuming, of course, that the production company expects to sell tickets, if any.

__________________________________________________________________

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

How Is Copyright Infringement Like An Ugly Car?

Thursday, November 20th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

What rights does a translator have? I translated a non-English script into English. All of the prior translations were very bad, which is why I did my own.  Everyone agrees mine is the best, even the original author. However, now that I am getting offers to produce my English version, the author and his publisher are insisting that, if I want to proceed, then they will own the translation and just pay me royalties for English productions using my translation. That doesn’t seem fair. The translation is all my work. I thought translators own the copyrights in their translations, so, don’t I already own it?

Robyn always tells me I never met an analogy I didn’t like, and I feel one coming on now.

Let’s assume I own a car which drives well, but is a hideous colour of besmirched baby blue (which, as it happens, was, in fact, the hideous colour of the first car I ever owned—a ’72 Buick Skylark which had belong to my grandfather, but I digress). You believe that you can re-paint my car and make it look like a Ferrari and offer to do so. Assuming I accept your offer, just because you paint my car doesn’t mean you now own the car or have any rights to drive it. I might owe you for your time and materials, but even if you make the car look better, the car itself still belongs to me. More importantly, let’s assume that I decline your offer, but you break into my garage and paint my car anyway. Even if you were somehow successful in turning my Buick into a Ferrari, you would still not have any ownership rights or control. You’d also be guilty of trespassing. (Incidentally, my mother did this very thing, erroneously believing that I would be touched and delighted with her thoughtfulness in having my car repainted, without my knowledge, from besmirched baby blue to her choice of vibrant puce. I was not.)

A copyright is like a car. The owner of a copyright has the exclusive right to determine who uses it and how—including the rights to edit it, make copies of it, perform it, record it, re-arrange it, re-orchestrate it, translate it, or create derivative works from it. A “derivative” work is anything that “derives” from the original work, such as a play or novel made into a film, a composition used to create a toy music box, etc. In short, there is nothing you can do without the owner’s permission and, in exchange for such permission, the owner can set any terms, reasonable or unreasonable, that the owner wants—including the right to refuse permission entirely. (Ok, there are one two minor exceptions, but they don’t apply to your question.)

If you want to translate someone else’s work, you must have the original author’s permission. If you don’t like the terms of the author’s permission, don’t do the translation and move on to another project. You are correct that, if translations contain a sufficient amount of creativity (as opposed to, say, a Google translation), then the translation is, itself, subject to its own copyright owned by the translator. However—and this is a BIG “however”—if you didn’t have the original author’s permission to make the translation in the first place, then your copyright is meaningless. It doesn’t matter how artistically nuanced, sensitive, or authentic it may be. As an unauthorized translation, any use of the translation would constitute an infringement of the original author’s copyright. Owning the copyright in the translation merely gives you the right to stop others, including the original author, from using it, but it doesn’t give you any right to use it without the original author’s permission.

Learn from my Mother—step away from the car!

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

When Is A “Work For Hire” Not A “Work For Hire”?

Thursday, July 10th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

An orchestra commissioned one of our artists to make an arrangement of a work for them to perform. We agreed that it would be a “work for hire.” Now, the orchestra wants to record their performance of the arrangement and has come to us asking for the artist’s permission. It was my understanding that a “work for hire” meant that the orchestra owned it. Is that not the case? If they own it, why are they asking us for permission? If they record it, can the composer still ask for royalties even though the commission agreement stated it was a “work for hire?” What am I missing?  

You’re not missing anything. You are absolutely correct that when a commission agreement expressly states that the commissioned work will be a “work for hire”, then the commissioner owns it. In which case, the composer isn’t entitled to anything beyond the commission fee.

Apparently, however, the orchestra doesn’t understand what a “work for hire” means. The orchestra was either using a commission agreement template they didn’t understand or believed that the term “work for hire” meant they were hiring someone to do work. Regardless, playing with templates and “legalese” is like self-medicating—someone always winds up in the ER.

If the orchestra has come to you of its own volition asking for the artist’s permission, then I would offer to grant permission in exchange for a mechanical license or other appropriate royalty. If they agree, then you have just obtained royalties for your artist that he or she would not otherwise be entitled to. Just because the orchestra legally owns the arrangement doesn’t mean that it can’t make a subsequent and legally binding agreement to pay royalties to your artist even though they are currently under no obligation to do so. Would you be taking advantage of the orchestra’s misunderstanding if the rights it already has? Perhaps, but I would submit that keeping any royalty to the statutory minimum and allowing the artist to obtain what should have been negotiated in the first place mitigates the karmic debt. Besides, rationalization and self-delusion are among the vital cornerstones of the arts industry.

________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

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

The Lost Art of Negotiation

Thursday, June 12th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

A longtime friend who is also a very successful artist who I greatly respect, asked me to do a project with him. He sent me a contract, but it doesn’t cover things like when and how I get paid. I want to mark up the contract and suggest some language, but I also don’t want to offend him and have him think I am being too difficult to work with and ungrateful for this opportunity. Is there some specific language I can put in the contract that he won’t find offensive, but will still protect me?   

I had a client of mine call me today about a contract she had sent to a promoter who then struck out a specific term that my client needed and sent the contract back to her. Frustrated and desperate to make the deal happen, she wanted me to suggest another way to phrase the term in such a way that the promoter would agree to it. Both you and my client are asking very legitimate questions, but the answers have little to do with contracts and everything to do with business and negotiation skills.

Contracts exist to memorialize an agreement. You can’t memorialize something that doesn’t exist yet. That’s like trying to take a photograph of a place you’ve never been. Before a contract can be properly drafted, much less signed, the parties have to discuss all of the key terms. While you can certainly use a contract to begin the discussion, you can’t avoid the discussion by simply crossing out terms you don’t like and inserting the ones you do. More importantly, there are no magic words, standard terms, or compelling phrases that will take the place of the need to discuss and negotiate.

Too many people in our industry try to use a contract to avoid negotiation—most often for the very reasons you mention: they are too scared of offending the other party, of not getting the terms they need, or of losing a deal or opportunity they really want. However, if you approach a negotiation as a game of deception in which the goal is to use illusive or even deceptively simplistic language or aggressive tactics to cajole the other party into agreeing to something unreasonable or something to your advantage which they would not otherwise agree to (ie: Lawyering 101), then you most certainly should expect the other side to be offended and deserve to lose the deal. On the other hand, if the other party is offended by a legitimate expression of your concerns, sincere questions about a specific term, or proposals that would clarify something you find confusing, then its probably either a deal you don’t want in the first place or a party you don’t want to work with. Just as importantly, if someone doesn’t agree with a term you want, they are not going to agree no matter how you phrase it. Phrasing the same thing in a different way isn’t going to help either. Even if you manage to word it in such a way that they can’t tell what they are agreeing to (what a lot of people refer to as “legalese”), then you’ll have to sue them to enforce it. Instead, you’ll either need to negotiate a compromise or evaluate whether or not the deal is equally advantageous to you without that term.

I have been to many purported lectures on negotiation at arts conferences, only to find that the lecture was really just about how to get presenters to book artists. That’s important, of course, but the real art of negotiation involves far more than discussing date, time and fee. Whether it is a commission, a booking, a production, or a recording, you must discuss and negotiate not just the artistic and logistical elements, but all of those nasty and boring business elements as well—such as liability, insurance, rights, licenses, approvals, exclusivity, taxes, visas, etc. If you are unfamiliar with the necessary business elements of a deal, the time to learn them is before you negotiate, not during the process.

A negotiation does not mean you will get what you want. Rather, a negotiation is a process that allows you to evaluate whether or not you will get what you need. Some opportunities are just that—opportunities—and a good opportunity may require you to accept some risk. But without taking the time to talk and discuss, you won’t have the information you need to access that risk properly. In other words, the negotiation process will save you from disappointment and frustration later on.

As for an answer to your specific question, I would say: Protect you from what? If your “longtime friend who is also a very successful artist who [you] greatly respect” breaches your contract, are you prepared to sue him? I thought not. I suggest you call your friend and ask him when and how you get paid. Don’t ever be scared to ask a legitimate question—especially when dealing with a friend. In the bi-polar cocktail of simultaneous love and resentment we call the arts world, doing business with friends demands an even higher degree of mindful discussion than doing business with strangers.

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

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Posted in Acts of God, Agents, Artist Management, Arts Management, Contracts, Copyrights, Insurance, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Presenters, Publishing, Recordings, Taxes, Touring, Venues, Visas | Comments Closed

Licensing Video For A Tribute Show

Thursday, June 5th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We are in production of a new “Tribute” show with a video component.  We are grappling with what type of media is public domain or where public domain photos or video can be found.  None of the video production companies seem to have a definitive answer.  I have been searching for pertinent federal statute that address this issue.  Any thoughts? 

There’s an old joke where a man encounters another man frantically searching for something in the middle of the street. The first man asks: “What are you looking for?” The second man replies: “My keys. I lost them in the dark alley over there.” “Then why are you looking for them out in the street?” “Because the light is better out here!” Ba da boom.

Like the man in the street, you’re looking for the right thing, but in the wrong place. There is no federal statute that addresses your issue…at least, not directly. If you’re producing a “tribute” show with a video component, then any copyrighted material you want to include in your video will need to be licensed. Any material that is not protected by copyright is in the public domain and is free to use. The question you need to ask then is: how do you tell if material is still protected by copyright? The federal copyright statute will give you a formula, but not the answer. The answer depends on when the copyrighted material was first published. Most often, copyright lasts for the life of the owner plus 70 years. But who is the owner?

The challenge with videos is that you are often dealing with multiple copyrights with multiple owners. Let’s say, for example, that you want to include a video of the original artist (since this is a “tribute” show) performing at a concert recorded in the 1960s. There is a copyright in the video itself as well as a copyright in the music being performed on the video. So, even if you were to determine that the video is in the public domain, the music being performed may still be protected by copyright—or vice versa. We once had an orchestra contact us about creating a DVD to celebrate their 50th anniversary using old video clips from past concerts. Not only did we (well, to be fair, Robyn!) have to obtain licenses from publishers of certain contemporary works (as well as arrangements of older works), but we needed to obtain licenses from some of the original videographers who still owned the rights to the video footage. (Side note: ALWAYS take the time to get a written license or assignment from anyone whom you hire to photograph or videotape your or your performance—even volunteers!)

Photographs are similar. In every photograph are two sets of rights: the rights to the photograph itself (ie: the negative) and the person being photographed. The photograph itself may be owned by the photographer, but the photographer may or may not own or control the rights to the image or person in the photograph. While a person does not have a “copyright” in his or her own image, they do own rights of publicity, rights of endorsement, etc. So, for example, if you wanted to use a photograph of the famous artist you are paying “tribute” to, you would need to determine whether or not the photograph itself was in the public domain and whether or not you required any publicity or endorsement rights to use the image of the artist. (To make matters even worse, publicity and endorsement rights are controlled by state, not federal law, and can vary from state to state.)

Determining whether or not a photograph is the public domain is just like determining whether or not a video is in the public domain: when was it made? Who made it? Are they dead or alive? Even if the photograph or video is in the public domain, you still need to do a separate analysis of the contents or images on the photograph or video.

While we’re on the topic of “tribute” shows, its also worth mentioning that even if you are lucky enough to find all the videos and photographs you want, as well as the contents thereof, in the public domain, you still need to be wary of using the name and image of the original artist in the marketing and publicity materials of your tribute show. Things like names and even visual elements such as distinctive costumes or a physical characteristic of the original artist can trigger trademark issues that are entirely different from copyright and other rights. The good news is that with enough advance planning and thoughtful analysis, its entirely possible to create the type of video component you want. Many artists and producers successfully do this all the time, often with the blessing of the original artist.

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

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Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Trademarks | Comments Closed

Hypothetically Speaking About Liability

Thursday, May 1st, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

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

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

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

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

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

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

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