Posts Tagged ‘patrons’

Spam Spam Spam Spam Spam….

Wednesday, November 6th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

If I am doing a fee split, am I entitled to the emails of the people who purchase tickets? Our group booked a show at a venue where we are supposed to be getting a portion of the ticket sales. We have asked for the names and email addresses of everyone who purchases a ticket, but the presenter says that this is against the law because it’s the presenter’s confidential, proprietary information. But if people are buying tickets to our shows, why aren’t we entitled to their names and contact info?  

Always start with the contract. What does it say? Do you even have one? If the engagement contract states that you are entitled to receive the names and contact information of everyone who purchases a ticket to your performance, then the presenter is contractually required to give it to you. Case closed.

However, assuming that your contract is silent on the subject, then the presenter may be giving you the correct answer, but for the wrong reason. A lot of people toss around the words “confidential” and “proprietary” without really having any idea what they mean. If your interest in having the names and emails is so that you can send out announcements of your future shows (ie: spam), the presenter has a legitimate concern that this may violate the CAN-SPAM Act–which has nothing to do with confidential or proprietary information.

The CAN-SPAM Act is a federal law that governs the sending of unsolicited commercial emails. This law states that anyone who receives an unsolicited commercial email has the right to request that he or she be removed from future mailings and places a number specific requirements on those who send such emails, including requiring the sender to provide an opt-out mechanism, a physical address, and to remove anyone who requests to be removed from the mailing list. It covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” Under the CAN-SPAM Act, anytime you ask someone to “buy” something or spend money, its considered “commercial.” Sending emails to promote an artist or an ensemble is just as “commercial” as sending emails soliciting donations or promoting a concert, a fundraising event, or any program where tickets are sold. (The law makes no exceptions for tax-exempt 501(c)(3) organizations.) As a result, any individual or organization that sends a commercial email to someone who has specifically asked not to be contacted, or sends such emails and fails to provide an opt-out mechanism and/or to remove someone from its email list upon request, can be prosecuted for violating CAN-SPAM.

Individuals and organizations can also violate the CAN-SPAM Act by providing email addresses and contact information to third parties. Very often presenters and venues collect email information for purposes of contacting patrons to verify ticket purchases or to inform them of cancellations, but these same patrons may “opt-out” of receiving solicitations or commercial emails. If the presenter were to disclose such email addresses to a third party knowing that the third party intends to send unsolicited commercial emails, then the presenter would itself be liable for violating the CAN-SPAM Act.

In this case, if the presenter were to give you the data you want, and you violate the CAN-SPAM act, then the presenter could be liable. However, given their inarticulate basis for refusing your request, I don’t believe for a minute that your presenter is actually even aware of the CAN-SPAM act. More likely than not, your presenter simply doesn’t want you to have the ticket list because the presenter wants the names and emails all to itself to promote its own future seasons, subscriptions, donations, etc. Regardless, the bottom line remains the same: without a contract entitling you to this information, you’re at the mercy of the presenter. When performing at a venue, there is neither an inherent nor implicit right to patron names and addresses just because you are the performer and people purchases tickets to your show.

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For additional information and resources on this and other GG_logo_for-facebooklegal 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.

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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!

 

We’ve Been Hacked!

Wednesday, September 4th, 2013

By Robyn Guilliams

Dear Law & Disorder: Performing Arts Division,

We are a small presenting organization, and we use an outside company to handle our ticket sales.  The company provides us with cloud-based software, which we use to process both online and box office ticket sales. We were recently informed by the software company that they’d been hacked!  The company told us that all of our patrons’ relevant information may have been compromised, including their credit card information. A lawyer on our board said that we are responsible for notifying all of our patrons of the security breach.  Is this true?  There are over 8,000 patrons in the system, going back quite a few years!  We don’t have the personnel to devote to this type of project.  One of the reasons we out-sourced our ticketing was to avoid handling and storing this type of sensitive information.  If we don’t handle the credit card information, why are we responsible if that information is stolen?

Oy, what a headache!

Unfortunately, I would guess that the terms of your organization’s contract with the ticketing software company require your organization to notify its patrons in the event of this type of security breach.  In fact, the contracts I’ve seen for this type of service require that the presenting organization indemnify the software company in the event of a breach.  This means that you are not only responsible for your own legal expenses and damages should one of your patrons suffer a loss as a result of the breach, but you’ll have to pay the software company’s legal expenses and damages as well!  And usually, these types of provisions are not negotiable.

In addition, you may want to take a look at the website of the PCI (Payment Card Industry) Security Standards Council, which sets the standards for companies who process credit card transactions (like your ticketing software company.)

See: https://www.pcisecuritystandards.org/faq/

Because your organization doesn’t actually handle or store credit card data, it’s not required to be “PCI Compliant.” However, as stated on this site, “it is the responsibility of the merchant to ensure that the data they share with third parties is properly handled and protected – just because a merchant outsources all payment processing does not mean that the merchant won’t be held responsible by their acquirer or payment brand in the event of an account data compromise.”

The good news here (such as it is) is that most states provide a mechanism for an organization like yours to protect itself in the event a third party credit card processor is hacked.  Generally, if you provide timely notice to your patrons of the breach, you can’t be held liable for your patrons’ damages (the theory being that if your patrons know about the breach, they can take steps to protect themselves.)  For instance, in New York (and many other states), your organization is protected from liability if you notify your patrons of the security breach “in the most expedient time possible and without unreasonable delay.”  The notice can be made in writing, electronically, or by phone.

Also, there are insurance policies that cover this type of cyber liability.  These policies usually cover the cost of notifying your patrons, as well as any legal expenses or damages you may have due to the breach.

In short, the volunteer lawyer on your board is correct. (As we don’t often agree with most lawyers, this is a rare occurrence, indeed!) Given the vulnerability of identification fraud and the potential exposure of your organization, you’d be wise to find a way to notify your patrons.

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Brian Goldstein and Robyn Guilliams will be attending the 2013 Midwest Arts Conference in Austin, Texas next week.

Our next blog will be on September 17, 2013.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

Accommodating Audience Members

Wednesday, June 12th, 2013

By Robyn Guilliams Dear Law and Disorder, I run a small nonprofit presenting organization. We recently received an email from a patron who wanted to attend a particular performance, and he asked if we provide accommodations for the deaf.  He indicated that either an American Sign Language interpreter or some sort of close captioning system would suffice.  We responded and told him that we did not provide those sorts of accommodations because we can’t afford it.  We suggested that he reserve a seat towards the front of the venue to enhance his ability to see the performance without any interference.  He then wrote back, stating that he was making a request for a reasonable accommodation under the Americans with Disabilities Act and asking that we respond with accommodation specifications within 48 hours. I don’t believe that this is a reasonable request for a nonprofit organization.  We don’t have the capability for close captioning, and we would be required to spend $500 to $800 on a sign interpreter.  How should I respond?? You should respond that your organization would be happy to provide a sign interpreter for this gentleman! The Americans with Disabilities Act (“ADA”) requires that all “public accommodations” – that is, virtually any facility that is open to the public – provide auxiliary aids and services to ensure effective communication access to their deaf and hearing-impaired patrons and customers.  This applies to for-profit businesses and nonprofits, both large and small!  For a theater or other performing arts venue, the most appropriate auxiliary aids usually are sign language interpreters and real-time close captioning devices. The idea behind the ADA is to ensure that no one with a disability is excluded, denied services, segregated or otherwise treated differently than others because of barriers or the absence of auxiliary aids. While the cost of a sign interpreter may seem daunting to small organizations, consider it a cost of doing business (yes, nonprofits – you are “doing business” by presenting performing arts presentations to the public!) and factor that cost into your budget. The ADA does provide an exception to the auxiliary aids requirement if providing these aids would result in an “undue burden” (i.e., “significant difficulty or expense”) to the business.  However, this “burden” must be truly significant for the exception to apply. Must every venue install high-tech close-captioning technology to accommodate the deaf and hearing impaired?  No.  Nor must a venue hire an ASL interpreter for every performance.  A patron who arrives at a performance and demands an auxiliary aid with no advance notice may be out of luck.  However, when a patron makes a timely request for a sign language interpreter, the venue must make its best efforts to fulfill that request. A few other notes to keep in mind: The “reasonable accommodations” (e.g., the sign language interpreter) must be paid for by the place of public accommodation. The costs cannot be passed on to the individual with a disability! A place of public accommodation must provide services in an “integrated” setting.  This means that the deaf or hearing-impaired patron cannot be excluded from enjoying a performance along with the rest of the audience.  As an example, it’s not acceptable to set up a close-captioned television feed in an area separate and apart from where the performance is happening.  If close-captioning is offered, it must allow the hearing-impaired patron to enjoy the performance in the same space as the rest of the audience. The deaf or hearing-impaired patron has the choice of which accommodation best fits his or her communication needs; however, an equally effective substitute may be provided if the original request is unreasonable or unfillable. In theory, the ADA codifies what should already be pervasive throughout the performing arts: an embrace of inclusivity. More practically, whether or not you agree with the ADA, the cost of ADA compliance is far less than the costs of non-compliance, which can be excessive. There are grants and foundations which may available to help you offset the costs of accommodating your disabled patrons. This may also be a good time to use this occasion to review your ADA policies and procedures, including how your staff and volunteers respond to ADA compliance requests and patrons with special needs. An insensitive response can send an embarrassed or angry patron directly to an attorney. As with any issue, it’s always easier to address problems and complaints before they arise. ________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!