Archive for the ‘Agents’ Category

Visa Tip for Booking Agents/Managers

Friday, December 13th, 2019

December 13, 2019

Hi folks

Sorry for our infrequent posts. We’ll try and do better. To that end, I thought I’d share an issue that just arose with one of our clients.

A booking agent filed P-1/P-1S visa petitions for a group that has previously been approved. This time, they received an RFE on a single issue: USCIS is asking for proof that the agent is, in fact, has been authorized to act as the petitioner on behalf of the group and its employers.

While some of you may or may not be aware of this issue, and I’d love to blame this on the Screaming Carrot Demon, its actual an issue that has been around for years—though Trump has certainly made it worse. The problem arises from the different ways USCIS examiners interpret the USCIS regulations pertaining to when someone other than a person’s direct employer can file a visa petition on someone else’s behalf.

As a result we have long recommended that any time a booking agent is serving as a petitioner for a group or artist, the visa petition should include two things:

1) An agent appointment authorization from the artist/group acknowledging that the agent has been appointed to serve as the petitioner. This can be on a single sheet of paper that says:
I/we authorize [NAME OF PETITIONER] to act as my/our agent for the limited purpose of filing an immigration petition to enable me/us to obtain a work-related U.S. visa classification so that I/we may work/perform in the U.S. as well as to accept service of process in the U.S. on my/our behalf. [NAME OF ARTIST/GROUP][SIGNATURE]; and

2) An agent appointment authorization from EACH presenter/employer of the group acknowledging that they, too, have each appointed the agent to be the petitioner. This, too, need only be a single sheet of paper which says: I/we have engaged the services of [NAME OF ARTIST/GROUP] to perform in the U.S., and authorize [NAME OF PETITIONER] to act for and in our place as agent for the limited purpose of filing an immigration petition to obtain the necessary U.S. work-related visa classification for said artist as well as to accept service of process in the U.S. on our behalf. [NAME OF PRESENTER/VENUE][SIGNATURE]

Do NOT merely include this language within a booking contract or management agreement as, in our experience, USCIS will never find it. Always use separate paper.

Is this a pain in the ass? Yes. However, we do this for ALL of the petitions we file and rarely encounter any difficulties with getting presenters/venues to comply. They already know the system is messed up.

Wishing everyone a wonderful Christmas, Yule, Hanukkah, and all other observances or lack thereof…drink up, as there are lots of potential USCIS changes ahead for the New Year.

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For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com
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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!

 

 

Emancipating Artists From Your Roster

Tuesday, August 6th, 2019

By Brian Taylor Goldstein, Esq.

Hi everyone! The issue of artists leaving a roster and re-booking themselves at a venue their manager/agent originally found for them is always an ongoing problem. I’ve been asked to re-post a blog we did on this several years ago. Here it is…..

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 legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media 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!

 

 

 

 

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.

________________________________________________________________

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!

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!

 

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!

 

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!

UPDATE ON U.S. VISA DELAYS

Friday, June 19th, 2015

Hi everyone

I realize that this is outside of our normal blog posting schedule. However, understandably, there is a growing concern over the recent…and ongoing…computer crash that has resulted in U.S. Consulates around the world being unable to issue visas. This means that even artists who have been issued I-797 approval notices from USCIS are currently unable to get their visas from a U.S. Consulate. 

This is a worldwide problem and is not limited to only a few consulates. It is also not limited to O and P visas.

Unfortunately, there are no contingency plans. An approval notice alone cannot substitute for a visa and without the visa, an artist cannot enter the U.S. and perform (even for delayed or no payment.)  Until the computer system is fixed, visas cannot be issued.

The U.S. Department of State recently updated its website to say that they did not expect the problem to be solved before next week. Once the system is back up, priority will be given to issuing visas for medical emergencies and humanitarian cases. Sorry, concerts and performances do not qualify as humanitarian cases.

Here is a link to the current update on the U.S. Department of State Website:

http://www.travel.state.gov/content/travel/english/news/technological-systems-issue.html

For additional information, here is a link to information on the website of the U.S. Consulate in London:

https://uk.usembassy.gov/

Most major U.S. presenters and venues are (or should be) aware of this problem and are making their own contingency plans. Nonetheless, you should advise them of this situation if for no other reason than to make sure that everyone understands that this situation is entirely the fault of the U.S. Department of State and could not have been foreseen. (Step #1 in any crisis: assess blame.)

In the meantime, we are advising everyone to monitor the U.S. Consulate and U.S. State Department websites daily and take the next available appointment. There is no point in contacting the consulate or requesting an emergency appointment. Because this has impacted everyone worldwide, there are no emergency appointments or priority channels available for artists with concert or performance dates.

_________________________________________________________________

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!

 

 

 

 

Are You Being Served?

Thursday, June 11th, 2015

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

You frequently mention that the artists are our clients, but aren’t the presenters our clients, too? If an artist is acting unreasonably or is going to do something which we know will negatively impact the presenter, we can’t afford to alienate or lose a relationship with the presenter over one artist. We will need to work with them in the future.

No one can serve two masters. The artists are your clients. The presenters are your customers. When you are in the business of representing others—whether its in real estate, law, insurance, investment, business transactions, or the performing arts—this is an important distinction to understand: while you need to be polite and professional to your customers, you owe allegiance to your clients.

Think of it this way: I have a friend who manages one of the perfume counters at Saks in New York. He works directly for the perfume distributor and, as such, his job is to sell as much of his products as he can. He knows his product line, represents it well, and offers impeccable customer service. If a shopper wanders by, his job is to turn the shopper into a customer by enticing them with the signs, smells, and quality of his products. However, what if the shopper doesn’t want or like his brand? What if they are allergic to the smell of Eggplant Noir or they find the name “Evening in Hoboken” is less than enticing? My friend smiles and lets them wander over to Guerlain or Jo Malone. He remains true to his products even if it means losing a customer.

As managers and agents, it is in everyone’s interest—both yours and your artist’s—to provide the best customer service possible to presenters and venues. First and foremost, it makes good business sense. A manager’s or agent’s professional relationships are among the most valuable asset he or she provides to an artist. Second, the arts community is quite small and the shoe you step on today may be the one you have to lick tomorrow. Nevertheless, as an artist manager or agent, you legally owe a duty to the artists you represent to act only in the artist’s best interest, not your own, and to take no actions that would advance your own interests at the expense of your artist. These, among other duties—such as fiduciary duties and duties of care—are legally implied in every manager/agent relationship with an artist—even where no formal contract exist. In fact, the law considers these duties so important, that any attempt to have artists waive them in a contract are considered void and unenforceable.

Admittedly, this can often pose some frustrating conundrums for managers and agents—especially in situations where an artist directs you to withhold important information from a presenter or directs you to take action that you know could harm the presenter and harm your own relationship with the presenter. This can include anything from performing without the necessary licenses or visas to intending to skip out on a residency activity they didn’t want to do in the first place by feigning illness. Should such circumstances arise, then your duty is to advise your artist against the foolishness of his or her plans. However, if the artist persists, and you believe that your own professional relationship with the presenter would be imperiled, then your only legal course of action is to drop the artist from your roster. Anything else—such as giving the presenter a “head’s up”—would be a legal breach of duty. If you would prefer a role where you are legally allowed to act in your own best interest at the expense of all others, start a record label or become a producer.

__________________________________________________________________

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!

 

 

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.”

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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.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!

 

 

The Damaging Truth About Cancellation Damages

Thursday, March 12th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

A presenter wants to breach our engagement contract by cancelling. Our cancellation clause says that, in the event of cancellation, we get 50% of the engagement fee or actual damages. They are offering 50%, but at this stage want the full fee.

If you have an engagement contract that has a cancellation clause, and a presenter cancels, then the presenter is not breaching your contract. A contract breach only occurs when someone fails to do something the contract requires (such as pay a deposit) or does something the contract does not permit (such as record a performance). In this case, if your contract has a cancellation clause, then you have given the presenter the right to cancel. So long as the presenter complies with the terms of your cancellation clause, then they are not in breach. They are merely exercising the right you gave them to cancel. If you don’t want them to cancel, don’t give them the right to do so.

According to your cancellation clause, if a presenter elects to cancel, they have to pay you either 50% of the engagement fee or actual damages. However, your actual damages may or may not be the full engagement fee. To determine whether or not you are entitled to the full engagement fee, you first have to calculate your “actual damages.” Actual damages are simply that: your actual out-of-pocket losses from the cancellation of that particular engagement. No more. No less. Calculating “actual damages” involves taking the full engagement fee and subtracting any costs or amounts you saved or did not incur as a result of not having to perform.

In some instances, the “full engagement fee” might include the performance fee as well as other costs, such as the value of travel and/or hotel that the presenter was covering. However, for the sake of simplicity, let’s assume that the full engagement fee was $5000, of which you needed $2000 to cover costs such as travel and equipment, leaving $3000 for profit. If by cancelling, you did not have to incur the travel and equipment costs, that means you saved $2000, and your “actual damages” are $3000. You would only be entitled to the full fee of $5000 if the engagement were cancelled too late for you to save or recoup any of your costs.

However, “actual damages” can never exceed the total value of the full engagement fee. As we all know, sometimes a single cancellation in a larger tour can also have residual implications. What if you were counting on the travel and hotel from a larger presenter to “underwrite” the costs of a smaller engagement fee from another presenter or run-out? If the larger engagement gets cancelled, that may necessitate the cancellation of the smaller one as well, or even the entire tour. Sadly, those losses are not “actual damages.” That’s just called bad planning.

Just because you were counting on something to make an entire tour break even, does make the loss “actual damages.” If the loss of a single engagement will trigger a domino effect, such as the cancellation of the entire tour, then, in addition to “actual damages”, you have suffered “consequential damages.” I know, that doesn’t make sense, but lawyers came up with these concepts hundreds of years ago and contracts still use the same broken terminology. This is the risk inherent in using contractual language you copy from someone else or don’t fully understand. You may inadvertently be using language that makes sense to you, but has a different legal meaning. The solution is simple: use English and be specific—even if it means (perish the thought!) using more words. For example, rather than write “we get 50% or actual damages” write what you mean:

If you cancel the contract, we get either a minimum of 50% of the engagement fee or all of the damages we actual incur as a result of the cancellation, including the cancellation of other engagements and/or any additional costs we must incur for travel, hotel, or other tour expenses, whichever is greater.

Wordier? Yes. Clearer? Indeed. An even clearer solution? Specify at the outset that the engagement is non-cancellable.

__________________________________________________________________

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!