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Arts Midwest’s Helpful DEI Legality Webinar

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Last week I had an ArtsHacker post covering a sessions sponsored by ArtsMidwest regarding compliance with Trump Administration Executive Orders on DEI programs.

The content of this session is highly useful. Unlike most webinars where they suggest consulting a lawyer, lawyers could earn credit by attending this webinar. As a result, the content may be a little more technical than you are accustomed. In the ArtsHacker post I suggest readers may want to have their lawyers watch it with them since the legal landscape may have changed since it was conducted on March 19.

This being said, it should be noted that other than some certification requirements on National Endowment for the Arts grant applications which are on hold pending litigation nothing has really changed legally regarding what constitutes a legal DEI program. All the laws and court rulings they discuss pre-date the recent election.

In other words, nothing that was legal before has become illegal. i have been in conversations with people since the issue came up and they mostly discovered they were already largely in compliance with the law and just had to tweak a few things here and there. However, they did change the wording of some programs and policies that might cause them to become the subject of scrutiny.

I included some time markers in the ArtsHacker post as a rough index of some of the topics covered. There were concerns about celebrations of historical and cultural observations (i.e. Black History Month, annual Greek Festival), as well as what these orders mean for organizations focused on serving very specific communities identified by race, nationality, gender, etc.

Elements Of Legal And Illegal DEI Programs

What To Say About Your DEI Efforts

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Yesterday someone posted a Harvard Business Review article on LinkedIn dealing with the topic of corporate DEI programs. The authors, Kenji Yoshino, David Glasgow, and Christina Joseph, state that such training programs hold a low legal risk provided they aren’t targeted at a specific group in a manner that creates a hostile work environment.

Public relations-wise it can be a different story depending on the community and customers you serve.

HOWEVER, statements about diversity, equity, and inclusion can carry legal risk if the say too much.

DEI communications create legal risk when a statement suggests that the organization engages in what we call the “three Ps” by conferring a preference on a protected group with respect to a palpable benefit.

Source

They caution against statements like: ““DEI uplifts historically disadvantaged groups to ensure equal outcomes,” because it suggests that some protected groups might be getting preferential treatment.

As alternatives, they suggest:

“DEI removes unfair barriers that prevent disadvantaged groups from competing on a level playing field.”

“Talent is everywhere but opportunity is not. DEI closes the gap.”

“DEI enables people of all identities and backgrounds to feel welcome and do their best work.”

Source

In respect to hiring and promotion, they write:

Another risky statement is “We use diversity hiring to recruit people from underrepresented racial and ethnic backgrounds.” This one could suggest the organization considers race or ethnicity in employment decisions …Alternatives include:

  • “We conduct outreach at diverse colleges to strive for a diverse applicant pool.”
  • “While we strive for a diverse mix of candidates, all employment decisions are made without regard to race, sex, or other protected characteristics.”
  • “We look for candidates of any background who will advance our culture of diversity, equity, and inclusion.”
Source

They also advise staying away from any language that identifies concrete hiring targets and instead use aspirational language referencing terms like aspire, strive, aim, and hope.

Much more specific detail on these and other topics in the article, including how to engage your communications team, if any of this is of concern.

Seems Like The Kitchener-Waterloo Musicians Deserve A LOT More Credit Than First Appeared

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A few weeks ago I wrote about how the Kitchener-Waterloo Symphony appeared to have found a path to return to activity, albeit tenuous, after the musicians were blindsided by a bankruptcy announcement.

In my post last month, I cited the board chair as saying the musicians invested a lot of effort in helping to save the symphony.

But let me tell you, after reading an additional piece in The Globe and Mail, I think that may have been an understatement. From the account on the newspaper site, it sounds like not only did the musicians raise $500,000 to support the out of work musicians and put on their own concerts, they also did the research and formulated the plan through which the symphony could be restored.

{French horn player Kathy] Robertson and a group of other musicians began to wonder what was salvageable from the original orchestra. If very few potential creditors would get paid from bankruptcy proceedings given the multimillion-dollar shortfall, the musicians reckoned it wouldn’t affect creditors too greatly if they avoided bankruptcy entirely and still didn’t get paid.

So they went to the Canadian Federation of Musicians, who connected the musicians with lawyers – who in turn confirmed that if they could find a way to satisfy creditors, it might be possible to save the orchestra.

Source

New board members contributed expertise and represented the orchestra in negotiations with creditors, but it sounds like the musicians provided the impetus and significant amounts of sweat necessary to get things back to a tentative footing. I am not sure what the laws in Canada allow, but it seems like the new Kitchener-Waterloo Symphony should be constituted as something of an employee owned and operated entity.

Music Rights And Athletic Competitions

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A recent Slate piece covered the music rights issues being faced by athletes who use music in competition – among them figure skating, gymnastics, artistic swimming, cheer, ballroom dance, and competitive dance. Essentially, pretty much no athlete at any level all the way up to the Olympics, has been securing the rights to use the music they perform to and the rights holders are bringing lawsuits against them.

To some extent it was surprising to me to learn that while Olympic athletes had been submitting a list of the songs being used in their routines, NBC wasn’t making sure the rights had been secured prior to broadcast despite the scads of lawyers that work for the network. Either that or they made sure there as language in their agreements with the different countries and athletic federations putting the onus on them to ensure the rights had been secured for the Olympics.

Complicating the situation is the fact an athlete not only has to secure the rights to the music, if they are going to perform choreography to it they will also need to secure synchronization rights. If you have ever watched any of these competitions you may have noticed that athletes often use a medley of dozens of songs which means securing the rights for each.

Not to mention, some songs have multiple rights holders who might have agreements with multiple licensing agencies. For example, for the Eagles “Hotel California,” Don Henley, Glen Frey, and Don Felder all have rights to the song. Henley and Frey’s are administered by Global Music Rights and Felder’s are handled by ASCAP.

There are songs in the public domain that may be used, but there is a desire to have the competitions feel relevant to audiences by using recognizable, contemporary music.

A quick fix, some have suggested, would be for athletes to just use classical music, which, when not fully in the public domain, often has fewer—likely less litigious—rights holders. Romain Haguenauer, coach to the 2018 and 2022 world and Olympic ice dance champions, said that if figure skating had to stop using popular music, it would be “catastrophic.”

“I think modern music is good for the audience, and especially for younger fans who can relate more to Beyoncé than [the opera] Carmen,” Haguenauer said. “If that would have to change, it’s like we will go back to the past. And that’s never good for sport.”

source

There are companies that have been formed to negotiate the rights for athletic competitions, but the process is slow and the available catalogue from which to choose is not extensive according to the article’s author.

AI May Not Be The Best Tool For Writing Personnel Reviews

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We are constantly told about the hazards of inputting sensitive personal data into unsecure websites. That is pretty much what you are doing when you provide information to an AI bot and ask them to create something for you. For this reason there are some significant concerns associated with using AI to write annual reviews and evaluations. Anything you provide the AI is being used to train the AI to do a better job and has the possibility of being retrieved by third parties.

I recently had a post on ArtsHacker discussing these issues in greater detail. In that post I note using AI for annual reviews is a viable option as long as you steer clear of identifiable information like names, don’t reference things like medical conditions, or use discriminatory language related to protected classes like age, race, national origin, etc.

Dangers Of Using AI For Annual Reviews

 

What Is Behind Philly’s University of the Arts Abrupt Closure?

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You may have heard the disconcerting news that the 150 year old University of the Arts (UArts) in Philadelphia abruptly announced their closure last week, less than a year after Pennsylvania Academy of the Fine Arts announced they were discontinuing their bachelor and master of fine arts degrees.  What is particularly galling about the closure is that faculty and students weren’t informed that the school would be closing a few days later and heard about it via media sources.

In addition, the manner in which they made the announcement resulted in the school immediately losing its accreditation.  Apparently, the accrediting agency told them on May 28 that their accreditation was renewed for another few years. The next day UArts told the agency they were going to close in a few days and the agency pulled accreditation pretty much immediately in response to the fact the school was giving such short notice and had not arranged for teach out agreements to help students transfer to other schools.

This reminded me of the closure of Sweet Briar College that I wrote about in 2015.  There were all sorts of questions about how that decision came about, especially since the school had accepted a million dollar gift two weeks before the board decided to close the school. In that case, the alumnae rallied to call for the resignation of the president and board for not properly exploring options to keep the school open.  The school continues to operate today.

I am not suggesting UArts is in a position to be saved. A number of universities have been closing in recent years. Last week Marymount Manhattan merged with Northeastern University due to declining enrollments.  The merger was a result of discussions over the course of a number of years.

Clearly the difficulties UArts faced didn’t just emerge over the course of a week. The faculty just ratified its first contract in February after three years of negotiation, but according to a recent article on the closure, there was no indication of financial problems at that time.

“Part of what makes this so shocking and outrageous is that at no point was there any indication from the senior leaders at the university … that the university’s finances were this precarious,” faculty member and union representative Bradley Philbert told Hyperallergic, adding that within the last three months, the university has hired between four and six staffers.

“This is not just something that happened overnight,” Philbert said.

Others have mentioned the abrupt closure is likely a violation of the WARN Act which requires large employers to provide 60 days notice of layoffs and closures.

Instances like these make me wonder what sort of legal advice and guidance these boards have been receiving. Likewise, who was making decisions about internal and external communications that none of this information was shared with any of the school’s constituencies.  In the end, I wonder if there are parallels with Sweet Briar in that the UArts board may have decided to shut everything down without due consideration about the process.

More Untruth In Advertising

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Over the course of the years, I have written on the practice of chopping up reviewer quotes and fitting things back together to make it sound like the critic enjoyed the show. It is called contextomy, by the way.

Thanks to Rainer Glaap who sent me another great example written by reviewer and columnist David Benedict for The Stage.

Benedict cites one example where Ben Brantley, former critic for the New York Times and Jesse Green, the person who replaced Brantley, were both recently had reviews of a show quoted even though Brantley left the paper over three years ago.

Beneath the words “True art sparks debate”, the ad quoted opposing one-liners from two Times reviews: “A stirring blockbuster” – Ben Brantley and: “An overeager blur” – Jesse Green.

….But Schulman smelt a rat, not least because Green succeeded Brantley as the Times’ theatre critic more than three years ago. Brantley’s review was for an earlier incarnation of the show way back in 2018.

It gets worse. None of the words quoted from either critic appeared in print consecutively. Those phrases were assembled from words that weren’t originally even in the same paragraph, let alone sentence.

Benedict recounts an instance when he was having lunch at a friend’s house and told the other guests about how he was misquoted in an advertisement for a show in which he wrote:

“The Sweeney Todd sequence is built around the rhyme: ‘He’s got a chopper/ Oh, it’s a whopper.’ If schoolboy innuendo is your bag, book now.” Passing the Duchess Theatre a little later, I was less than pleased to see my name outside accompanied just two words from my review: “Book now.” After my complaint and much-feigned innocence and wringing of hands, the producers finally took it down.”

The twist to this story is that apparently that specific anecdote was used in the development of truth in advertising law for the European Union–only now that the UK has left the EU, it isn’t applicable.

To my astonishment, one of the lunch guests piped up: “It’s you! I know that story because I drafted the EU directive on false advertising. You’re cited in European case law.” The trouble is that post-Brexit, EU directives no longer apply.

Benefits Of Incorporating Your Arts Career

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h/t Artsjournal.com for linking to a really valuable article on Observer about considering creating a limited liability corporation (LLC) if you are an artist.  I recently created a post on ArtsHacker summarizing some of the ways in which an LLC protects artist’s personal assets in the case of lawsuits and in some cases, divorce proceedings.

This excerpt from Observer article summarizes how an artist would operate after forming an LLC:

….but most artists operating as one-man shops set up limited liability companies, according to Powers, where the LLC is the employer and the artist is technically the employee. When a sale or commission is made, the money is paid directly to the corporate entity, which then pays the artist, either in a lump sum or in increments (as a salary), and the artist pays taxes on that money as ordinary income. But not all the money transfers directly through to the artist. The corporate entity retains some cash to purchase art supplies, health insurance, workmen’s compensation to protect employees who may get injured during transit or installation, commercial premises and liability insurance—and, assuming the artist is successful enough, to hire employees or consultants.

The article discusses a number of legal scenarios an artist might find themselves in which the buffer of an LLC would be beneficial. More than just providing legal protection, they also note that forming an LLC would allow the artist to solicit investment to support their work.  Take a look at the ArtsHacker post or go straight to the article to learn more.

 

Should Your Work Be Protected By An LLC?

Cleveland Ballet Issues Turned Out To Be Much Bigger Than Initially Suspected

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Back in November, I had written about allegations of harassment by the administration of the Cleveland Ballet of one of their teachers due to body weight issues. I thought that would more or less be the last time I wrote about that particular accusation. However, the results of the investigation by the ballet board has turned into a lesson about boards exercising better organizational oversight.

According to a recent news story, the CEO, Michael Krasnyansky, was essentially forced to resign when the board investigation started and credible accusations of sexual harassment and inappropriate touching emerged stretching back over the course of years.

His wife and artistic director, Gladisa Guadalupe, was just fired after the investigation by the law firm Jones Day uncovered a culture of intimidation and retribution that aimed to obstruct the investigation and a wide range of issues related to financial impropriety and self-dealing.

From the Jones Day report:

-Description by Ms. Guadalupe of complaining dancers as “moles” or “troublemakers” and stating that once the investigation was over, “we will handle the troublemakers.”
-Proposal to lay off employees suspected of communicating with news media.
-Altering Nutcracker cast assignments to the detriment of dancers suspected of cooperating with the investigation.
-Dismissing from the Cleveland School of Dance faculty dancers who cooperated with the investigation.

[…]

-Commingling of funds of Ballet and Cleveland School of Dance, which are separate entities.
-Cleveland School of Dance expenses improperly paid by the Ballet.
-Ballet funds used to pay for personal expenses of Mr. Krasnyansky or Ms. Guadalupe, including personal car insurance, travel, meals, and lodging.
-Restricted donations used to pay for current operating expenses rather than the restricted purpose designated by the donor.
-Significant amounts of endowment donations used for current operating expenses but booked as expenses for the 2023 endowment campaign event

To add a degree of insult to injury, when the the interim artistic director who stepped in when Krasnyansky and Guadalupe were suspended in November was accused of plagiarizing the choreography for the Ballet’s Nutcracker production and ultimately stepped down herself.

When thinking about how this situation could have been avoided, you run into the question of balancing micromanagement by the board with the board exercising appropriate oversight. I suspect that on paper, policies and procedures were in place to avoid the misuse of funds, but the culture of intimidation magnified by the top leadership being married may have made staff reluctant or unable to enforce them.

Similarly, it sounds like it would have been difficult to conduct an investigation or even regular check-in conversations with the dancers about their perceptions of the work environment in the face of the pressure to keep quiet that was being brought to bear.

By no means am I excusing what happened. I am just observing that in hindsight, it is easy to say the board should have been paying more attention. It is difficult to identify what measures they could have put in place which would have provided them with accurate, honest reporting about the state of the the organization given the effort of obfuscate. The Jones Day report said despite all they discovered, they had repeatedly been denied access to most of the materials and records they requested so there are likely other issues which have remained uncovered.

Artists Need High Quality, Accessible Marketing Resources

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Last week, my regional booking consortium organized its first Zoom conversation for marketing staff to share questions, ideas and just generally converse. I lurked around for most of the conversation with my camera off, popping in to comment on occasion. One of the topics of conversation was around marketing and promotional assets that artists provide.  The quality of video and images is an increasingly important topic given the role social media plays with both show promotion and associated sharing.

When I was at a booking conference last month, a panelist mentioned that they look at two things when evaluating whether to book an artist. The first was whether the tech rider was within the capacity and the second was the quality of their promotional assets.  While there was some people in the Zoom meeting last week who said their every use of promotional materials was being closely scrutinized by a tour, far more others complained by the dearth of quality images and video.  Many artists have video which is poor lighting, framing and sound quality.  Still images and logos are often small and can’t be resized without severely bitmapping.

Someone on the call shared an article from Capacity Interactive about how to make static key art more engaging  by adding some subtle animation, using the animation to do some storytelling and provide information.  Obviously, you need to get permission from a performer before adding any animated elements, but I thought that this was a good way to cope with the lack of good materials and catch some attention.

Later in the afternoon, the venue managers and programmers met and some of my enthusiasm deflated a little. One of the topics of conversation was some accessibility legislation that is set to roll out in Colorado in summer 2024. Under those rules we need to pay attention to things like how accessible our websites and ticketing systems are for screen readers. This will mean making sure images have robust descriptions for alt text and videos have captioning. One venue manager said they are already telling renters that logos are not sufficient to represent their shows given the amount of detailed description the law will require.  In this context, I realized the animated key art idea might not pass muster.

While they might not entirely encompass current 2023 standards, Drew McManus did a whole series on web accessibility on ArtsHacker in 2019 which will provide a good start. Bonus: A post on all the lawsuits and accessibility plug-in scams to watch out for.

Strip Club Dancers Return To Work With Actors’ Equity Representation

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Last September I made a post about strippers working at a club in Los Angeles who were approaching Actors’ Equity Association to help them unionize their workplace. Today I saw on CNN.com that they had indeed held a successful unionization vote under the auspices of Equity last May (NPR story).

While the setting of the strike may add a salacious air to the story, the basic details of the effort are pretty common across all unionization fights. The dancers forming the union were contesting their categorization as contractors rather then employees, seeking better working conditions, and better assurances of their safety and security. There were lock outs, picketing, suits contesting the dancers’ right to form a union.

It appears they don’t have a contract yet, but the dancers returned to work at the end of August in a gesture of mutual trust based on physical improvements that had been made during renovations as well as changes in policy and practice.

Actors’ Equity suggests that the legal rulings that lead to this may set a precedent for other workers in the beauty and entertainment industries to be categorized as employees rather than contractors.

Fewer Non-Profits Engaging In Lobbying Advocacy Than 20 Years Ago

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According to a story on the Associated Press, fewer non-profits are engaging in lobbying efforts than 20 years ago. The Independent Sector had commissioned a study that found less than 1/3 of organizations engaged in lobbying over the last five years versus nearly 3/4  of organizations in 2000. Given that there was a lot of advocacy for Covid funding, these results make me wonder if more people weren’t engaged in lobbying in the last five years and didn’t consider what they were doing to be lobbying or if fewer entities did a lot of the heavy lifting versus twenty years ago.

The survey results do seem to indicate organizations are unaware of lobbying rules or uncomfortable with engaging in lobbying and lack the resources to participate.

And even though nonprofits work on a range of issues that are affected by policy choices, such as funding for the arts and science and policies on hot-button issues like abortion and gun control, less than one-third of nonprofits said they were well-versed in how to legally conduct advocacy campaigns and how much lobbying they were permitted to do. Twenty years ago more than half knew the rules, the survey found.

[…]

Holding nonprofits back, Watkins said, was a lack of money to hire full-time staff with policy expertise and fear that taking part in debates on policy matters or providing voters with nonpartisan voting guides would put their nonprofit status in jeopardy.

Independent Sector plans to conduct studies to dig deeper into the reasons for the decline, but experts said many nonprofits don’t have the money to engage in policy debates. And some organizations may fear taking public stances on issues, given the heated political environment.

Sticking their necks out could make them targets of political opponents, they said.

 

A number of survey responses seemed to indicate people were concerned about running afoul IRS rules that prohibit investing a substantial amount of time and resources into lobbying. Substantial is apparently a much higher bar than people realize, though obviously the term leaves a considerable amount of gray area open to interpretation.

While Gorovitz allowed that the IRS regulations on nonprofit advocacy can be confusing, the guidance provided by the agency, he said, is often misunderstood.

“It does not mean ‘don’t lobby,’” he said. “It means lobby. It’s an express invitation in the tax code that says you can lobby.”

Be Careful Monetizing Those Vacation Videos

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So as you are getting out there traveling to enjoy the natural beauty of the U.S. National Parks this summer, you may want to take a cautionary note from a case Gordon Firemark wrote about in May.  A guy who was filming parts of a feature film was dinged by the Nation Park Service for not securing the proper permits. While the charges against him were dropped, he pressed suit claiming that requiring permits and fees were unconstitutional. The 1st District Court of Appeals held that the fees and permits requirement was constitutional and the Supreme Court declined to hear the case.

Firemark notes that this ruling puts some casual recording and photography activities at risk of prosecution if people seek to monetize those materials.

You take your family vacation to Yellowstone, Mt. Rushmore, or Yosemite, and you capture some beautiful video. Then, you post it on Youtube. If you monetize that video, it just became commercial., and you could be fined, penalized, or even jailed for violating the park service’s fee-and-permit regulations. Same could happen if you capture a great still image and decide to offer it for sale via a stock-photo agency?

Do a livestream on your monetized YouTube channel from inside the park? Bingo. You need a filming permit. And that costs.

[…]

There are a few things we as creators can do to address this situation.

Don’t monetize your work. Ever. Period.
Get the permits. (As understand it, the permit Price should’ve obtained would’ve cost $500 if obtained before filming… and there were penalties and interest tacked on later since he didn’t).
Write to your congressional representatives and ask them to address the situation.

Non-Profits Didn’t Volunteer For Mandatory Volunteerism

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It is likely you haven’t been able to avoid the seemingly incessant discussion about the negotiations to raise the debt limit. If you haven’t been able to muster the zen-like state of letting the details of those negotiations pass through one ear and out the other, you may recall that work requirements for those receiving financial aid some some sort has been one of the sticking points.

In a post on the For Purpose Law Group blog, Linda J. Rosenthal writes about how mandatory volunteerism is a bad idea. In her piece, which contains dozens of links to studies and opinion pieces on the topic, she applies this sentiment not only to government mandates, but graduation requirements for students as well.

Of all the pieces to which she links, a statement by the National Council of Non-profits provides the most succinct summation about why this is such a bad policy. (my emphasis)

Mandatory volunteerism is harmful because the policy imposes increased costs, burdens, and liabilities on nonprofits by an influx of coerced individuals. Few if any of the mandatory volunteerism bill sponsors ever ask whether nonprofits in their communities can handle an onslaught of hundreds or thousands of individuals showing up on nonprofit doorsteps for the purpose of doing time rather than doing good.

They go on to say that they oppose any efforts that tie receipt of benefits to a requirement to volunteer because they “impose increased costs, burdens, and liabilities on nonprofits by an influx of coerced individuals.”

A number of the articles linked by Rosenthal also address the oxymoronic nature of “mandatory volunteerism,” especially in the name of trying to engender a sense of civic mindness and charity in students by refusing to let them graduate if they don’t complete their hours.

Art Or Advertising? And The Lost Context Of A Summary

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Another entry in the “What is art” debate– A bakery owner in NH allowed students to paint a mural on his building. Because the mural depicted a sun rising over mountains made of donuts and muffins, last June the town said it was in violation of the sign ordinance restricting the size of advertisements. If the mountains had looked like mountains instead of baked goods, it would have been considered art, but because they were products sold by the business, the mural is considered an advertisement.

This caused a considerable amount of discussion in the town and apparently increased attendance at Zoning and Planning board meetings, but ultimately residents voted against a proposed change that would have provided clearer rules to allow for works of art.

An organization is submitting a federal case on behalf of the bakery which is leveraging the situation to fundraise for the local high school art department.

Since fighting for the right to display what Mr. Young maintains is a mural, Leavitt’s has become an advocate for the arts. The bakery recently began selling T-shirts with the mural on the front above the words “this is art,” and the Leavitt’s sign on the back with, “this is a sign.” Proceeds benefit the Kennett High School art department. And with the help of a local philanthropist, Leavitt’s is co-sponsoring a scholarship for one student a year from Kennett High who wants to pursue the arts.

“I’m not taking it down because it’s the kids’ artwork,” Mr. Young says.

The article has pictures of the mural and the tshirts. A number of the people interviewed for the story seemed pretty supportive of the mural, including a couple local government officials who appeared to have wanted to proposed change to pass in order to provide for greater clarity. While some people were concerned about murals going up willy-nilly and the appearance of billboards, it is pretty clear the bakery mural is not meant to be a sales advertisement. There are no words at all on that part of the building, nor are any figures beckoning people in.

As an aside, I noticed as I was re-reading the article that there is a feature that allows you to toggle between a Quick Read and Deep Read, with the latter indicating it make take 6 minutes to read the longer content. I think that must be how long it takes a computer to read it aloud, because that seems pretty long. I am not quite sure what to think about this feature. While folks do seem to have a shorter attention span and providing a shorter option may encourage people to engage with the topic, it also seems to suggest there is content that isn’t important to know and can be safely omitted.

Reading the abridged version of the article changes the tone of the article. The full article seems sympathetic toward the cause of the mural, the abridged version seems to suggest anarchy will break out in the absence of local self-governance.

 

A Different Form Of Art Worship In Museums

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This morning I saw Artsjournal had linked to a story about the seizure of a statue at the Metropolitan Museum of Art which had apparently been stolen from Turkey. More and more frequently there have been questions about the provenance of objects in museum collections. According to the NY Times story, the statue, which was on loan to The Met is among 18 objects in the museum’s collection that have been filed for seizure in the last three months.  The museum isn’t the only one having its collections scrutinized:

In addition to the Met, the authorities seized items from the San Antonio Museum of Art, the Princeton University Art Museum and the Fordham University Museum of Greek, Etruscan and Roman Art, according to court records.

This article reminded me of a recent story on Hyperallergic about a classical Cambodian dancer who had been kicked out of the Met for dancing in front of religious objects which had been looted from her country. She discusses how dancing barefoot before the statues created by her ancestors is an appropriate form of worship. She had done so at the museum about 10 years ago, but when she repeated the act this last February, a guard stopped her.

As is appropriate, I removed my shoes (though, it being winter, I was wearing stockings) and approached the statue of the god Harihara. I prayed for his safe and prompt return to his homeland. I prayed to the four directions and then moved on to the main gallery. About two minutes into my brief dance, a member of the museum’s security team approached me and stated that I wasn’t allowed to dance there without permission. He also instructed me to put on my shoes….If I had simply walked to each statue and prayed, I doubt he would’ve felt compelled to stop me. Something about my rhythmic movement, silent and subdued as it was, set the guard on edge. One of the people recording the video told me that he found my danced prayer so powerful he was shaking.

When I first read that last line, I thought the guard was shaking from the power of the dance. Later, I realized that it might refer to the person doing the recording.

While there is an implication that dancing before the statues might be possible with permission, though perhaps not given the fact she was chased from the museum stairs when she was interviewed about the experience, I wonder if we might see start to see similar acts in galleries and museums as awareness and questions about how legitimate the methods of acquisition were.

Abandoning Template Based Relationships With Creatives

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If you aren’t familiar with Springboard for the Arts, it is an organization based in St. Paul, MN, (with a rural office in Fergus Falls, MN), run by artists, for artists. But that is just the short description of an organization involved with tons of community projects. A few weeks ago, executive director Laura Zabel wrote an appeal to make 2023 the year to practice more equitable contracting with artists.

To start with, she encouraged jettisoning contracts inherited from previous administrators and templates from legal websites and consider creating contracts that aligned with organizational values. That might require finding a lawyer that shared those values in order to create some new contracts. In addition to fair compensation and timely payment processing, she also advocated for a different approach to intellectual property rights and exploring partial payment scenarios in the event a project is interrupted by unforeseen circumstances like a pandemic.

Equitable intellectual property practices: Many contract templates assume that the institution wants and needs to own an artist’s intellectual property in perpetuity and for all uses. Can you make your intentions and needs around IP explicit and specific to the situation? For example, instead of a standard “work for hire” contract, try a tailored licensing perspective with language that specifies “non-exclusivity”. For example: “Presenter hereby grants a nonexclusive license to present and deliver the Event.” This kind of language can help make sure that artists can use their work for future projects or to generate income in a different way. Can you share photos and video with the artist so that they have good documentation of their work?

Realistic cancellation policies: Things are uncertain and we all know there are no sure things these days, so building in contingencies and worst case scenarios is important. Can you structure your contract so that you compensate artists as they work on a project vs. only at the completion of a project? Can you be clear with funders or supporters that if a project is canceled you will pay the artists anyway? Use the contract to lay out multiple scenarios if a project needs to be rescheduled or canceled so an artist can better plan and make sure to include a “kill clause” that details a payment you will make to the artist if the event or project needs to be canceled.

Basically, just as arts & cultural organizations are cognizant of the need to have flexible approaches to delivering their services and seek new audiences, they also need to be adjusting the nature of their relationships with artists, staff, vendors and others who contribute to the success of their organizations.

Strippers Ask Actors Equity’s Help Securing Safe Work Environment

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A couple weeks ago I caught an NPR story about a group of strippers at a bar in LA who were working to unionize under the auspices of Actors’ Equity Association.  The dancers had been dismissed and locked out after complaining and petitioning the bar’s ownership to improve working conditions, both in terms of the physical performance environment and protection from aggressive clients. After months of striking outside the bar’s parking lot, the dancers filed to join Actors’ Equity.

One of the reasons why this story grabbed my attention was that I made a post in 2021 about how Actors’ Equity had decided to significantly lower the barriers to union membership. The union essentially provided automatic membership to members of sister unions like SAG-AFTRA, AGMA and AGVA as well as anyone who was enrolled in the union candidate program. The candidate program, which required accumulating points for performing in specific types of roles in venues operating under a union classification, was scrapped in favor of the new Open Access program which just requires that you have worked professionally as an actor or stage manager in the United States.

In reviewing the program, I noticed Open Access membership is only available until May 2023 so we will have to see how membership is handled after that. However, I initially viewed the union’s willingness to go to bat for these dancers as an extension of the Open Access program. They didn’t nudge the performers toward other unions like AVGA which represents variety/cabaret performers or SEIU which the NPR story says another group of strippers joined about 25 years ago.  I similarly wondered why the dancers approached Equity rather than another union. Was it due to the union’s presence in small performance venues in LA or perhaps Open Access has made the union appear more welcoming.

It will be interesting to see how the efforts of the dancers to unionize ends up. Likewise, I will try to keep an eye for more news on the Open Access program to see if it continues/evolves after May 2023 and if the effort achieves the diversity, equity and inclusion goals Actors’ Equity intends.

I should mention, the NPR story doesn’t just report on the strike but includes four discrete profiles of the dancers for additional perspective.

How Will Non-Profit Law Change To Meet Shifting Expectations?

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Gene Tagaki raises some interesting thoughts over on the Non-Profit Law blog on the question of how legal concepts and structures may need to adjust to reflect changing values in the non-profit sphere.  He lays out some thoughts in regard to Charitability, Philanthropy, Governance, Technology, Fundraising, Advocacy, and Employment.

I provide this list with the intention of sparking enough interest in folks to read more deeply because I am only going to touch on a few ideas that popped for me.

One question he raised was whether the IRS would need to adjust its definition of 501(c)(3) entities:

“Would relief of historically discriminated groups of individuals without regard to poverty or distress now qualify as charitable? Would the sale of alternative energy sources for personal use be charitable even if at market rates?”

Tagaki also points out that there is a growing shift in how fundraising is accomplished and how the work of social good is being framed. He notes that crowdfunding focused on supporting a specific project or individual versus organizations which help many. He also cites corporate efforts to “charity-wash” their activities by positioning themselves as reducing social problems.

“Fundraising trends also raise other legal concerns as nonprofit fundraisers face competitive pressure from those raising money from crowdfunding platforms to help specific individuals rather than charities, businesses proclaiming to do more social good than nonprofits, and entrepreneurs looking to both help charitable causes while creating for themselves an opportunity to earn substantial amounts of money.”

Finally, Takagi observes there is a trend not only toward remote work, but also shared leadership of organizations. This approach is likely to exist in tension, if not complete conflict with a hierarchical board governance model legally required of nonprofits in the US.

“Many organizations are struggling with this movement as there are clear and proven benefits with traditional hierarchies and the law is built on boards having ultimate responsibility and authority over the activities and affairs of their corporations. But there are shifts in power that are possible, and laws or regulatory guidance that confirm the appropriateness of certain delegations of authority may be helpful. What are some of the distributed leadership systems that would be helpful if recognized by sector leaders as good practice and by lawmakers and regulators as acceptable?”

As always, many things to think about for the future.

Time To Review Programming And Rental Procedures

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Many people probably heard about a Minnesota venue cancelling Dave Chappelle’s show hours before it was suppose to occur.  Something similar happened a few weeks ago at a venue on the other side of my state where a comedy show with different comedians was cancelled the day before it was supposed to occur.

This has gotten me to thinking that art and cultural organizations need to be doing a better job developing and implementing policies and procedures. Putting aside the question about whether these shows should be cancelled,  the decision to cancel shouldn’t be made so close to the performance date. Regardless of the content of the performers’ show, cancelling anything so close to performance time is irresponsible, unprofessional and bad for community relations.  (I know how complicated it is move venues and re-seat people having done it during Covid. The fact the Minneapolis show was immediately moved to another venue suggests the decision and arrangements were made earlier, but only announced the day of.)

The organization on the other side of my state flubbed things even more by issuing a statement that said the show was cancelled due to the content and then issuing another statement saying it was because the proper paperwork and deposits were not received.   This sort of mixed messaging is an indication that there is not a good crisis management plan in place. I am not suggesting the social and political views of a performer constitutes a crisis, but if you have a plan to have one voice addressing your roof falling in during a performance or an entire cast testing positive for Covid after a week of shows, you have a process for communicating tough decisions.

I suspect the venue in Minneapolis was already generally aware of the controversy surrounding Dave Chappelle and the clamor of protest got to a point where it outweighed the benefits of hosting the show.  For most other programming, whether it is a solicitation to book a performance or for an outside party to rent the space, it is important to be very clear about the content and requirements of the proposed event. This is a good policy for reasons almost entirely unrelated to opinions about political and social issues.

Ninety-nine percent of the issues that have occurred in venues I have been involved with have been related to technical requirements. Often renters are too vague about their plans and technical needs or show up and add a ton of things they never mentioned before, resulting in a higher bill because we have to scramble to find equipment and staffing at the last minute. Most of our rental contracting has been held up because the technical director doesn’t have the information he needs to accurately estimate the event.  There are definitely people who neglect to submit deposits and paperwork on time, but we address that well in advance of the show.

Similarly, our biggest concern with shows we book is lack of technical details on one hand or assurances that the show will fit in our space despite misgivings. Agents and production offices 500 miles away are motivated to contract a show and leave it to the people on the ground to work around problems far too often.

We have declined to present productions or rent our venue due to technical concerns far more often than for content. Content needs to be reviewed and considered alongside technical requirements in a holistic process. Things shouldn’t reach the contracting stage if there are issues, much less be a matter of discussion a day or two before.  I suspect our colleagues on the other side of the state saw the opportunity to generate some rental revenue and didn’t really pay attention to who it was until the protests started a few days before the performance.

As for the policies and procedures you put into place, that is a matter for discussion with involvement from internal and external constituencies and some legal review. Those policies are going to differ for each organization and community.

Donor Advised Funds Receive More Giving Than Public Charities

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Earlier this month Vu Le of the Non Profit AF blog linked to a piece reporting that Donor Advised Funds (DAF) had surpassed charities as recipients of charitable revenue.  The problem with this, as I have previously written, is that unlike public charities which are required to spend at least 5% of their funding each year, donor advised funds have no such requirement but the donor gains the tax benefit of making a donation.

In other words, the government is subsidizing giving that is not necessarily providing any charitable benefit. From the Inequity.org article:

Of particular concern are DAF sponsors that are affiliated with for-profit Wall Street financial corporations. As we have documented, these commercial DAFs provide enormous publicly-subsidized tax benefits to their high-rolling contributors while actively encouraging the warehousing of charitable wealth. And commercial DAFs have been growing explosively.

In fact, the largest commercial DAF sponsors now take in more money each year than our largest public charities.

The article has an animated graphic illustrating how over time DAFs have occupied six of the top ten recipients of charitable revenue, displacing United Way Worldwide from its top spot to number four.

There has already been some discussion about how the required minimum 5% annual distribution by charities was a low bar to meet, especially since some of the charity’s administrative expenses and activities can count toward the 5% expenditure rather than purely distributed as grants.  So the fact that so much more money is being directed toward DAFs than ever before with no requirement that it be distributed is of growing concern.

Where Is Your Favorite Podcast Getting Its Material?

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h/t to Isaac Butler who retweeted a somewhat horrifying thread written by author Brendan Koerner recounting how one of his Atlantic articles, two of his books and a WIRED piece he authored have been ripped off by podcasters.

Koerner recounts how the person who created a podcast based on his Atlantic article blatantly told him he was going to rip it off.

A couple people Koerner confronts do give some cursory acknowledgements. He feels it is insufficient, but doesn’t have the energy to fight all these battles.

Given the ever broadening proliferation of podcasts, this is going to be something to which to pay attention. People want to jump on the wave but if they don’t have original material to share, apparently they don’t have many scruples about stealing it.

I suspect we are going to see people getting paid speaking engagements or interest in developing expanded work based on their podcasts only to find there are credible claims of plagiarism and theft.

But even if it goes no further than podcast episodes, as Koerner points out, people are creating ad revenue supported episodes that compete with his books and spoil the plot twists in his writing.

How Arts Orgs Used Relief Funding Is Beginning To Be Examined

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A couple weeks ago Hyperallergic had an article that was a critical of museums who had received Paycheck Protection Program (PPP) funds meant to keep people employed, but instead ended up laying off large numbers of people. They particularly noted that the Museum of Science Boston initially didn’t qualify for the program due to employing more than 500 people, but were later able to apply for funding after laying off more than 300 people.  The article also suggested that while some institutions needed the money to survive, some of those at the top ended up in almost better financial shape.

It found that out of $1.6 billion given to about 7,500 cultural institutions that qualified for PPP loans, nearly half of the money ($771 million) went to just 228 recipients. These same 288 institutions collectively laid off more than 14,400 employees, or at least 28% of their workforce.

[…]

However, AFSCME’s report found that not all museums faired that poorly during the pandemic. In fact, an analysis of 69 cultural institutions with available financial data revealed that 67% of them ended fiscal year (FY) 2020 with operating surpluses.

The Museum of Contemporary Art, Los Angeles (MOCA), which received $3.3 million in PPP loans, laid off 97 workers during the pandemic despite ending FY 2020 with a $2.3 million surplus. Nearby, the Natural History Museums of Los Angeles County ended FY 2020 with a $23.9 million operating surplus after receiving a $4.8 million PPP loan. And yet, it furloughed its 127 part-time employees from March 2020 until the end of December 2020.

Not to excuse the act of laying off people after accepting money to keep staff employed, the fact that institutions ended fiscal year 2020 with a surplus may not be indicate they profited off of layoffs. Many non-profits have a July 1 -June 30 fiscal year so if the organization was doing well from July 1, 2019 through March 2020 when the pandemic started, losses of the three months from March-June 2020 may not have moved them into a deficit. The PPP program started in April 2020 with a deadline of June 30, 2020 so organizations may not have received the funds until their 2021 fiscal year.

It has been generally acknowledged that a lot of those who applied for the PPP program didn’t have the severe financial need the program was intended to serve. Determining whether museums used funds meant to stave off layoffs to achieve better financial footing should be examined, but it isn’t clear from the information provided here. The full report can be downloaded on the AFSCME website. I haven’t downloaded the report at this time because the registration form indicates they and others may use the information to solicit and lobby me.

It will be interesting to see if a similar examination is conducted of performing arts venues which largely fall under the Shuttered Venue Operators Grant (SVOG) program, something most museums were not eligible due to the fixed seating requirement for that program.  From what I have seen, the administration of that program is still plagued with errors which they are trying to resolve for adversely effected venues, but that raises concerns that there was opportunity for inappropriately granting funds as well.

I Hope No Arts Organization Is Doing Anything Close To This

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In writing posts I often draw on examples from commercial enterprises and other types of non-profits to provide interesting ideas or lessons that my primary audience of arts and culture professionals might use. It isn’t often that I come across something where I firmly believe no arts and cultural organization could possibly be engaging in.

But just in case, here is an example of an operation which would undoubtedly give non-profit charities a bad name and make people want to subject them to additional scrutiny.  Gene Takagi of the Non-Profit Law blog had retweeted a post by Karl Mill which I initially assumed was just going to deal with what can be a fine line between what is allowed in terms of political lobbying and action by 501 (c) (3) non-profits and is better organized as a 501 (c) (4).

But it got oh so much worse than that really quickly. In addition to wanting to actively lobby for political candidates, the proposed non-profit intended to assist the homeless and indigent by enrolling them in the multi-level marketing program of the company which was forming said non-profit organization.

Mill goes through the application for non-profit status in some detail, commenting on what activity is okay, falls into a gray area of the law, and falls off the rails completely. Some of that is definitely useful for those who are confused about the difference between issue advocacy and lobbying. But he also gets to the point where he starts to comment “I wish I were making this up.”

At the end he sums up all the problems he identified in a bulleted list:

At this point, you might be wondering whether your organization can learn anything from an organization that was planning on:

  • Scooping up homeless and other indigent individuals;

  • Putting them in a home together and brainwashing persuading them to pay to become salespeople for a multi-level marketing company,

  • Charging them a fee for that initiation on top of the fees that all salespeople pay up the chain;

  • Taking control of their finances and charging them money for non-compliance, and

  • Having their conscripted army of indigent salespersons produce videos, op-eds, and go canvassing door-to-door to campaign in support of the company’s chosen candidates or in opposition to the company’s political enemies.

Maybe I Should Have Held Out For A House, Too

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For Purpose Law Group posted the second installment of their “Nonprofits: What Not To Do,” series yesterday. The first installment dealt with the infamous Indianapolis Museum of Art job posting for a director who would help the organization continue to serve its “core white audience,” along with some other questionable decisions organizations have made.

This most recent post deals with creating prudent safeguards in executive compensation practices. It put me in mind of Drew McManus’ annual Orchestra Compensation Reports series which examines compensation for concert masters, music directors and executives.

In the most recent posting by For Purpose, they discuss how the board of the Brooklyn Academy of Music (BAM) wanted their new executive director to live closer to the facility than Manhattan and so offered a housing bonus of $968,000 so she could purchase a home nearby. This being NYC real estate, the bonus only covered half the cost of the house, but it is still a pretty dang good down payment. Since there were no provisions made regarding the house or repayment of the bonus should the executive director resign or be fired, when she did leave the organization six years later, she retained the house.

While the previous executive director being with the organization for 36 years, 16 as executive director, may have created high expectations for the new exec’s longevity in the mind of the board members, For Purpose writes the board should considered that eventuality.

Not to mention that knowledge of such preferential arrangements can impact morale among other staff in the organization, something the pandemic only exacerbated at BAM:

This scrutiny has also arisen amidst the background of severe fiscal carnage due to the pandemic; BAM lost millions. It had to “cease live programming, lay off or furlough staff and dip into endowments.”

And there was staff grumbling all along. “To be in an all-staff meeting where we were hearing so much about capital projects and how grateful Katy was to be able to walk to work was very disheartening,” said a former education coordinator. “It made a lot of us question the austerity we saw in other parts of the institution.”

It is likely that CEO compensation practices in the commercial sector influenced the board of an organization based in a world financial capital. However, there are different standards and levels of scrutiny accorded to non-profit orgs. The For Purpose Law article lists a number of resources boards can use to establish compensation standards. If you have questions, pop over and take a look.

Info You Can Use: Database of Performing Arts Venue Vax Policies

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Drew McManus has started a database of the different policies performing arts venues around the country have enacted.  He started it last Friday and announced the 100th entry this morning. If you follow the links, you can see both the database and a form with which you can provide information about your venue or venues in your community.

I immediately passed it around to members of my consortium as soon as I saw it last Friday. Probably the biggest value it has is providing guidance and a bit of moral support for performing arts organizations around the country so that if they are getting push back from boards and higher ups, they can point to other entities around the country and in their region who are taking certain steps.

For the venue I run, most of the self-sponsored shows on our schedule are happening in the Spring so we were just starting to formulate the beginnings of a policy when groups renting from us over the next three months contacted us to tell us what measures they would like to take. In one case we were surprised by how rigorous one group’s standards were because were concerned their audience was the type to vocally push back. It turned out their policies were heavily driven by the insistence of the artists who were scheduled to perform.

It has been a week since they made an announcement about their policies and it doesn’t appear they have had more than a couple people requesting refunds. It has shown us that everyone’s input has something to contribute to policy creation and not to make broad assumptions about how audiences will react.

Take a look at the database and add your information as you can.

 

Resource: Performing Arts Org Vax Policy Database

Running An Intellectual Property Rights Grabbing Contest Isn’t A Good PR Move

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Laura Zabel, Executive Director of the awesome Springboard for the Arts posted a important Twitter thread on being mindful about the way you solicit creative work from the community.

Read the whole thread, it is short but she makes the important point that you may be asking creatives to do a lot of free labor on spec and if there is only a couple winners, most won’t see any sort of reimbursement for their time. She suggests that a request for proposals (RFP) might be more appropriate. She likewise reminds readers to make sure the planned remuneration, whether it is contest prize or fee for services, is appropriate for the level of effort people will need to invest in your project.

Perhaps most importantly, she urges people not to use any language which claims all the intellectual property rights for anything that is submitted. She notes that many templates have this language in it so even if it isn’t your intention, you could be making a “rights grab.”

Barriers To Equity Admission Are Suddenly Dropped

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Big news today from Actors’ Equity Association  the union which represents stage actors and stage managers. The union basically immediately opened membership to anyone who has ever worked professionally as an actor or stage manager on production and ever will, along with members of associated sister unions like SAG-AFTRA, AGMA and AGVA. Anyone who currently in the member candidate program working toward their union card can immediately become a member with any fees already paid to the union counting toward their initiation dues.

It should be noted that the definition of working professionally seems to being paid any amount as long as you can provide a pay stub. The previous process was based on a certain number of hours worked on a production under a union contract.

The union says they are doing this as a step toward diversity and inclusion due to the high degree of self-selection that has existed in the hiring process:

But Equity theatres, like all entertainment industry employers, are disproportionately run by white people, and their programming and hiring decisions show that they often hold biases in favor of people from similar demographics. In fact, recent hiring studies demonstrate that Equity contracts are disproportionately offered to white people, and the majority of new members join via a contract.  Because our membership rules until now have left access to membership in employers’ hands, they have implicitly created a disproportionately high barrier to access for actors and stage managers of marginalized identities. We have inadvertently contributed to the systemic exclusion of people of color and people of other marginalized identities from the benefits of union membership.

In a Backstage article, Diep Tran quotes Equity President Kate Shindle as saying this is not a cash grab after the Covid shutdown:

But she is adamant that Open Access is not a “cash grab” to get more money into the union; Equity was affected in the last year when its members were unable to work because of COVID-19 and thus, pay into their union.

“I am telling you the God’s honest truth when I say that no part of this has felt like any kind of cash grab,” she says.

Shindle also admits that with this change, it may mean that auditions become “more crowded,” but she believes that overall, more members are a good thing: “We’re eager to look at the ways in which structural and systemic racism has permeated our industry and say, Okay, these are things we can just fix without anyone’s permission. We don’t have to have an industry summit in order to say it should be easier to join Equity if you want to join Equity.”

One of my colleague’s first reaction was to wonder if the influx of membership would help the union’s issues with health coverage. Back in April, actors were marching in protest against the union’s change in the number of weeks members had to work in order to receive health coverage, in addition to calling attention to racism, sexism, and unsafe work environments.

It will be interesting to see how this move plays out over the next few years. One of the biggest challenges will likely be broadening the appeal of union membership geographically. While it sounds like anyone who performed for a small stipend could become a member of Actors’ Equity, the restrictions on working on non-union shows may limit people’s opportunities to participate in local or regional productions.

For decades now the fact that acting opportunities were oriented in a few cities, particularly New York City, has been identified as a significant problem. (Call out to Scott Walters who often wrote on this subject.)  The joke about needing to move to NYC from Milwaukee in order to audition for a part in Milwaukee wasn’t far from the truth.

Equity is probably going to have to create new sets of rules that allow people to perform in myriad more circumstances than they currently are. The union was formed over 100 years ago to protect actors from exploitative situations and there are still many areas in which advocacy of a few broad basic work rules like the recent trend away from grueling rehearsal schedules can create new standards of practice.

 

Colorado And The Case Of The Hidden Salary

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I have noticed Drew McManus will get me riled up about an arts administration topic and then suggests I write an Arts Hacker post about it. Last week was no exception. Last Thursday he posted about how he had gone back to requiring employers posting positions on Arts Admin Jobs to include a salary range.  He had done so because there was a growing demand among job applicants and others within the non-profit world to have salaries included.

But that Drew also noticed an editorial on the Chronicle of Philanthropy (registration required) was making waves for suggesting that omitting the salary was in everyone’s best interest. And boy did that garner a spirited response from readers.

With good reason since part of the rationale seemed to be along the lines of someone being grossly underpaid at $40,000 would be too intimidated to apply for a job more appropriately paying $120,000, so it is better to keep the salary hidden….you know, for their sake.

There is a lot more to the effort than just some opinion pieces. As I note in my Arts Hacker post, Show The Salary started in the UK and is an international effort that probably extends even further than my research turned up.

There are definitely signs that there will be immense resistance by companies and organizations to list salary ranges. While there are a number of states and municipalities which have rules against requiring or discriminating against applicants who don’t provide their current salary, only Colorado requires employers to provide salary and benefits information in their employment listings.

As a result, a number of companies who allow employees to work remotely are specifically saying Colorado residents can not apply for open positions. Nike says residents will need to move from the state before performing any work.

Since there are a significant number of positions open in the arts right now, including at the executive level, there is an opportunity to create a strong precedent and expectation of listing salary ranges. Such a simple move is likely to exert a lasting influence and shift in the general work culture among arts organizations going forward.

There is more detail about the whole topic in my Arts Hacker post so check it out.

 

Time To Include #ShowTheSalary In The Hiring Process

 

The Phantom Wouldn’t Have To Hide In The Sewers If He Lived During Covid-19 Pandemic

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There is a piece on ArtsHacker I recently published dealing with a lot of the legal questions arts and cultural venues face when trying to make re-opening plans. You may be aware that people are pulling out official looking cards saying they are exempt from wearing face masks under the ADA. Those cards are fake in terms of having any authority behind them.

There are many reasons why people will have problems wearing face masks, but there is no automatic exemption. My Arts Hacker post includes a link to a resource provided by the Southeast ADA Center that provides guidance on this issue, including possible modifications that might be implemented.

The post also contains links to three videos by entertainment lawyer Steve Adelman who answers questions about whether you can require people to wear masks, if you can be held liable if someone contracts Covid-19 at your venue, and whether you should you have people sign liability waivers acknowledging they might be exposed to the virus.

One of the things I learned from the third video is that half the disclaimers on the back of tickets shifting risk of injury to visitors or waiving their right to sue probably won’t be enforceable in practice.

A little bonus information for you that isn’t in the Arts Hacker post is survey data Colleen Dilenschneider posted today showing about 70% of people want cultural organizations to make mask wearing mandatory.

 

A Question Of Face Masks And Liability

Some Things To Consider Before Getting In To Performance Streaming

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The challenges of Covid-19 raise for arts organizations has resulted in a number of valuable resources being produced. When I came across them, I am often torn between writing about them on this blog and creating a post for ArtsHacker. Since the latter is more specifically focused on resources for arts professionals, I often opt to write something up for that site.

Let me tell you, it often hurts me to make this decision because I am inevitably trying to find something to post about on Butts In The Seats and it means I gotta keep looking. But fortunately, I can point to the Arts Hacker article at a later time here.

That is a long way round of saying…I am going to be pointing you at a few ArtsHacker pieces I wrote over the next week or so, dear reader.

The most recent one is on the legal considerations for streaming content. I think I am pretty secure in saying that as revenue from live performance rights decline, organizations that administer performance rights are going to start paying closer attention to what is being performed in people’s living rooms.

The Alliance of Performing Arts Conferences issued a guide on The Legal Landscape of Live Streaming that covers a lot of the questions about livestreaming content as well as providing good information about what the pros and cons of different streaming services, depending on your goals and needs.

On the legal side, one of the first things you need to know is that your live performance license, whether it was for music, musicals, plays, etc doesn’t cover live streaming. Your live streaming license in turn doesn’t cover the rights to make a recording of your live stream available for later viewing. None of the above covers permission required from the content creators be they performers, designers, arrangers, etc., or the various unions that might be involved.

Since your streamed content is reaching a much larger audience than the room capacity of your venue, there may be profanity laws of other jurisdictions as well as intellectual property rights of any brands, logos, and trademarks which may appear to consider as well.

Check out my post and the guide for more info.

 

Legal Considerations For Live Streaming Performances

Setting Up A Legal Meeting When You Can’t Legally Meet

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June 30 is the end of the fiscal year for a lot of non-profits. In light of that, non-profit organizations generally have board meeting around this time of year in an effort to report where things stand to their boards of directors and generally get things wrapped up.

But of course, currently no one is supposed to be meeting in large groups. An online virtual meeting is the obvious answer. By now people have attended quite a number of webinars and meetings online and are starting to feel comfortable with the whole process (albeit there are STILL people who don’t mute their microphones!!!)

Except….if your bylaws don’t already acknowledge online meeting and voting as valid methods of doing business, any actions you take can be subject to challenge. Likewise there could be an issue if your state laws don’t explicitly recognize virtual meetings or explicitly forbids them.

Last week I made a post on ArtsHacker to help people consider how to address these issues. In many respects this is uncharted territory for a lot groups so it might ultimately require consulting a lawyer to get the most accurate picture. The post will help start people on the road to thinking about what questions they should be asking and what processes might need to be put in place.

 

 

Online Meetings & Open Meeting Laws

A Pandemic Is All The More Reason To Resist “For The Exposure”

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One of the concerns I have had with so many artists providing their talent and content for free over the internet while people are sequestered at home during the coronavirus epidemic is that there would be an expectation that it would all continue to be free as we transitioned away from this situation.

I have seen a couple articles addressing the practice of artists contributing their talents to the general effort to combat the virus.

The first comes from Arts Professional UK which drew attention to a call to artists from the UN. The UN is looking for creative ways to communicate the necessity of good hygiene & social distancing practices as well as dispel different myths to people in different cultures.  While it is prudent to craft messages that are specific to each culture rather than one size fits all, the issue is that the UN wanted the creatives to do it for the exposure.

“You have the power to change the world”, artists have been told, and “the UN needs your help to stop the spread of coronavirus.” It is asking creatives to submit “a range of creative solutions to reach audiences across different age groups, affiliations, geographies and languages”.

No fees are being offered for the work, which is viewed as an opportunity for creatives to contribute to the global fight against the pandemic while raising their profile across the world, including among major corporations.

While the company coordinating this for the UN says they “…would normally be the first to champion the payment of proper fees to artists and creatives, it feels like this is the one time to make an exception,” this still sounds a little exploitative during a time when artists are experiencing a difficult time. Exposure is only gonna get you sick without the ability to pay your bills.

On the other hand, a felt a little differently when I read about an effort by Broadway Cares to stream a concert of Disney show recorded back in November as a fundraiser for a Covid-19 emergency assistance fund.  The Actors’ Equity & SAG-AFTRA unions agreed to waive fees but the American Federation of Musicians (AFM) refused to do so despite the willingness of the 15 musicians who performed in the concert and the president of the local to allow it to be streamed without a fee.  The musicians had been paid for the performance back in November, but AFM president Ray Hair felt that in these times in which artists find themselves in difficult financial straits, the organizers should be willing to pay.

The result is, the fundraiser won’t be able to go forward.

If you are going by the general standards I espoused in the UN example, you should want the artists to be paid. The fact were already paid once shouldn’t necessarily factor into it as there are a lot of unfair situations which deprive artists of royalties on recorded content. Nor should the fact the musicians are willing to forgo payment necessarily make it okay since there are plenty of artists in the UN example who are willing to do it for the exposure when they really ought to be paid for their work.

These two examples show how difficult it is to employ uniform standards in relation to fair remuneration for artists.

For me, there was an option Broadway Cares presented that I felt should have provided a fairly equitable win-win situation for everyone. Because of most favored nations contract clauses, Broadway Cares can’t pay the musicians without then needing to pay members of the other two unions who participated in the November event. However, Broadway Cares offered to make a $25,000 payment to the musicians’ emergency fund on top of the $50,000 it had already given to musician assistance programs. This amount would have been more than they would have paid the 15 musicians and benefit a wider range of musicians who were facing these difficult times.  That offer was also refused.

Upcoming Webinars: Guidance For Arts Community During Covid-19 Crisis

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Americans For The Arts is hosting a couple webinars to help the arts community deal with the situation surrounding Covid-19.

It appears that both will be archived for those who can’t watch live.  If you follow the links in the titles, you can register to participate.

I have seen the link to this first meeting shared by multiple groups so it is likely to be heavily attended.

We Are Stronger Together: Navigating Crises and Sustaining Healthy Relationships in the Era of Coronavirus

March 18, 2020 at 3:00 PM EST

As a result, the performing arts presenting, booking and touring industry is navigating uncharted waters, as we look to both contracts—and to each other—for direction. Join the partners of the Alliance for Performing Arts Conferences (APAC)*, as we host an informative, field-wide conversation with presenters, agents, artists, and legal and emergency response experts around the current business, legal, financial, ethical and relational realities we are facing TOGETHER.

The second webinar appears to be more focused on organizational plans and policies during the crisis, including providing support for staff and others who may be experiencing anxiety.

Arts and Culture Sector and the Coronavirus: What we Know and How to Move Forward

March 19, 2020 at 3:00 PM EST
Join members of Americans for the Arts’ staff, Ruby Lopez Harper, John Rubsamen, and Narric Rome, with Jan Newcomb, Executive Director of the National Coalition for Arts’ Preparedness and Emergency Response, Barbara Davis, Chief Operating Officer of The Actors Fund, Rhonda Schaller, Assistant Vice President for Student Affairs and Visiting Associate Professor at Pratt Institute, and a representative from the National Endowment for the Arts to hear current information about actions to take, including: planning to consider, handling grant funded projects, managing stress during moments of crisis, and continuing to support artists. This briefing will also include an update on the status of congressional action on economic impact and stimulus funding and how it relates to the arts and cultural sector.

Event Contracts, Postponements, and Cancellations in Light of Covid-19

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If you are looking for some guidance about how to approach event cancellation/postponements in relation to everything shutting down due to Covid-19, I had a post go up on ArtsHacker today pointing to some advice and resources.

I cite some advice provided by arts lawyer Brian Taylor Goldstein as well as an FAQ issued by North American Performing Arts Managers and Agents (NAPAMA) which appears to be in the process of continual updates as things unfold.

 

Handling Contractual Elements of Event Cancellations Due To Epidemics & Other Crises

 

Portland, OR Art Tax Update

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Back in 2012, Portland, OR approved a $35 tax to supports arts education and arts organizations around the city. In 2017 I wrote a post about how overhead was starting to cut into the amount of money available to distribute to programs. Part of that overhead was attributable to the fact people weren’t paying the tax and so funds had to be diverted toward enforcement.  Last week, via Artsjournal, is another article mentioning that the tax hasn’t proven to be the boon supporters hoped it would be. For one, people still are resistant to paying it.

The art museum, like the rest of the big five, never received the targeted 5 percent support.

That’s in part because the tax has never brought in the $12 million a year voters were told to expect. (Revenues were $9.8 million the first year and peaked at $11.46 million in 2016.)

Portlanders have been reluctant to pay it. Although the city’s population has risen nearly 12 percent since November 2012 and tax receipts should have increased proportionally, figures show revenues still never reached levels proponents forecasted.

A point I want to clarify. The article makes it sound like arts funding for schools has diverted money that was intended for non-profit arts organizations. However, from my earlier posts, it appears the law that was passed intended to fund the schools first and then the non-profits would receive funding. In fact, this recent article says when the measure was passed in 2012, funding the schools was politically more attractive to voters than funding non-profits. While the arts organizations had been pushing the art tax idea for a long time prior to the vote, when the time came, the resolution being voted upon was written to fund the school first.

The other thing the article notes is that between the collection effects and the art tax name, there are public relations and perception issues which have proven problematic.

While arts leaders all favor more Portlanders paying the tax, some worry the city’s zeal to collect is counterproductive. “You get pinged with a letter, you get pinged with a postcard, you get an email saying time to pay the arts tax,” says Portland Center Stage’s Fuhrman. “That’s where I think the bad PR comes in.”

Andrew Proctor, executive director of Literary Arts, which produces the Portland Book Festival, says the public’s ill feeling has a cost. “Even the name ‘arts tax’ sounds punitive,” he says, “and it misleads citizens that in paying the tax they have supported arts institutions. They haven’t. It can damage our fundraising efforts and can polarize the conversation.”

[…]

Hawthorne, the former RACC official, says he fears the public may believe the tax works. “Ten to 12 million is a lot of money,” Hawthorne says. “People may perceive the arts have had their influx and now it’s time to focus on more pressing needs.”

The whole article provides a lesson for those considering advocating for an arts tax of some sort. The basic idea isn’t bad, but the way it is structured and executed needs to be thought out. The example of Portland points to things people want to avoid. The name; the way in which it is collected, structured and discussed; all call negative attention to it.

It is worth reading the whole article because it also mentions the Regional Arts and Cultural Council’s (RACC) initiative to provide more equitable funding for smaller arts organizations. Back in 2012, RACC was starting to require more diversity on the boards, staff and eventually audiences of Portland’s arts organizations. In January, I had written about how the Arts Council of England was instituting similar requirements, forgetting that Portland had been working toward that goal for nearly a decade now.

Last year, RACC shifted their funding model to better align with this philosophy which includes size and economic diversity among its criteria. As a result, the larger organizations in town receive less of the art tax money than they once did.

Worrying Prohibition Or License To Get Out Of Boring Meetings?

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A couple years ago I wrote a piece for ArtsHacker debunking the notion that anyone who was an ex officio member of a non-profit board did not have the power to vote. The fact is, they have the right to vote unless the organizational bylaws specifically indicate they don’t.

More recently though I discovered that some states like California actually prohibit a non-profit board of directors to have non-voting members which lead me to write a new ArtsHacker post.

The thought is that the role of director comes with certain responsibilities and obligations and so only those fully invested with the decision making authority to fulfill those obligations should be a director. This applies to any committees that exercise board powers as well, which is pretty much all of them (i.e. Executive, Finance, Governance, Nominating, Compensation, etc).

Since some boards have non-voting emeritus director positions or bestow major donors with honorary director titles, the law requires either the title be changed or the bylaws altered to provide these people with votes. (Though if the person has all the rights, responsibilities and authority of a director, they are considered a director regardless of their title as Trustee, Governor, Visitor, etc.)

Other people can attend these board and committee meetings to provide feedback and advice, but they are considered guests or advisors.

Now you may be thinking that the presence of executive leadership at board and committee meetings is crucial to the operations of a non-profit organization and it undermines their credibility if they are only considered to be a guest at the official proceedings.

The authors of the document providing advice about the law, (though they point out that they are not providing official legal advice, nor am I), suggest the following approach:

For example, a corporation may include in its bylaws a provision that the chief executive is required and has the right to attend every board meeting, unless specifically excused by the board. Such a person would be able to express opinions about matters up for discussion, present reports and be involved in the logistics of organizing board meetings, such as notification and setting the agenda.

(I suppose there are some executive leaders who were momentarily excited by the prospect of feigning their dismay at not being allowed to attend an interminable board meeting, but unfortunately, it is the law.)

Check out my full post on ArtsHacker. It may bear doing a little research to learn if your state has similar laws regarding board membership.

Does Your State Prohibit Non-Voting Board Directors?

Possible Setback In Push To Eliminate Unpaid Internships

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Just before Christmas Non-Profit Quarterly called attention to a situation of some concern. Recently the National Labor Relations Board (NLRB) overturned an administrative law judge’s ruling and determined that employees were not protected when they advocated for non-employees.

In this particular case, it was employees of Amnesty International  signing a petition supporting paying unpaid interns who were determined to lack protections. However, as the article points out, this ruling would be equally applicable to other categorized as non-employees.

Molly Lee Kaban, an attorney with Harrison Bridgett in San Francisco, who observes that “other types of nonemployees, such as gig workers and other independent contractors, will not be able to rely on support from employees within an organization to advocate on their behalf. Uber employees, for example, can potentially be disciplined or terminated for advocating on behalf of nonemployee drivers who want to be classified as employees. This could lessen the pressure on employers to make changes.”

In the non-profit arts this might translate to a lack of protection for orchestra musicians who were advocating for better pay for substitute musicians who were classified as independent contractors. Similar to the Amnesty International case, employees of an arts organization advocating that interns be paid could likewise run into problems with their employers.  Obviously, labor law is not my area of expertise. There may be other rules and contract agreements that would forestall concerns about reprisals.

The are shades of gray and nuance to the rules. The NLRB’s basis for overturning the administrative law judge’s decision was based on the board’s interpretation of Amnesty International executive director’s comments as expressions of concern where the judge’s view was there were implications of reprisals.

Even if independent contractors do have more of a basis for being considered employees because they are paid, this ruling undermines the effort to eliminate the use of unpaid interns in both the for- and non-profit world.

As the National Law Review article on the case notes, trends are indicating potential barriers to graduate students, among others, efforts to unionize as well:

The NLRB has been signaling a hesitancy to impose obligations on employers outside the traditional employment context. It has proposed exempting paid undergraduate and graduate students from the NLRA, for example. Over the last several years, as employers are forced by the low employment rate to increase their use of nonemployees, unions have increased their efforts to expand the NLRA’s reach by organizing non-traditional workers, including temporary campaign workers and graduate students.

Some Guidance On Researching Open Meeting & Records Laws In Your State

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In response to my post last week about the surge of people seeking my advice regarding the open meeting and open records laws of their states based on a 2016 ArtsHacker post I had written, ArtsHacker editor-in-chief suggested I write another post listing some of the resources I had found.

I responded that given every state had its own laws, there really wasn’t any centralized source(s) of information I could point to that a person could reference.

Much to my chagrin, there is still apparently a lot one can say on the matter as I managed to hammer out more than 1000 words of advice regarding how to research open meeting and records laws in your state.

One of the interesting things I have come to realize is that in some states, it appears that technically the members of the board of directors may not have the right to review the records of the organization they govern. There may be more to write on this topic in the future…

 

More About Open Meeting Laws & Non-Profits

Let Me Tell You What You Can Do With That Phone

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Hat tip to Howard Sherman for calling attention to a New York Times article about cell phone use at live performances that the paper has set up as an study guide/student discussion resource.

The article opens with a video of Joshua Henry taking a phone from an audience member and tossing it under the seating riser (without missing a note in his song), noting that Henry had already been indicating his disapproval with being recorded for three songs.

It also mentions the recent incident in Cincinnati when violinist Anne-Sophie Mutter stopped in the middle of a Beethoven concerto to call out a woman recording her performance.

The New York Times article poses a number of questions for students to consider and discuss.  While I feel the questions are a little leading toward certain answers, they, or questions like them, could prove useful as a starting point for arts & cultural organizations as part of a conversation with younger audiences (or potential audiences) about their expectations.

I will say, of the student responses made in the article comments section, there were more inclined against the use of phones than I had expected. Many of the commenters were from the same school so perhaps they were generated by like-minded friends.

There is also an opportunity to have those participating in a discussion you host do a little more research on whatever scenario is being discussed.

For example, when I first learned about Annie-Sophie Mutter stopping the performance, my impression was that the person in the audience had only just started recording a short snippet. In later interviews, Mutter said the woman recorded the whole first movement and then pulled out another phone and an external power source and started recording the second movement. This adds a little more context for a discussion.

Making audiences of all ages feel welcome at performances and other cultural events will inevitably require addressing the issue of recording. I suspect that other than luck and perceptive ability, the more constructive policies will result from having conversations with audiences rather than by straight fiat or debating about it in the comments section of websites.

Why The Sudden Interest In Non-Profit Record Access?

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Three years ago I wrote an article for ArtsHacker.com about being aware of the open meeting requirements your state imposes on non-profits.

I basically pointed out that while pretty much every state requires a non-profit organization receiving state funds to comply with open meeting laws, every state is different when it comes to defining at what degree of state support an organization needs to begin complying.

In some states, the existence of your non-profit pretty much needs to be established by an act of the legislature, while in other states being provided with a meeting space in a state owned building is all that is required to make your organization subject to the state open meetings and records laws.

I am not sure what has happened in the last year or so, but pretty much once a month now someone leaves a comment asking if an organization in their state is subject to open meetings or open records laws.  I pretty much end up saying, “You should really consult a lawyer on this subject, but here is what I found online about the laws in your state.”

I have yet to find a state that doesn’t have the rules governing non-profits posted online somewhere, pretty clearly labeled. So if you are curious about your state, I encourage you to check online first because that is all I am going to do. (Check both the sections on open meetings and retention and access to records.)

Some states have some pretty good guides created to answer questions about open meetings and non-profits. It is good to have your secretary of state telling you clearly what the state laws do and don’t require.

I call attention to all this because I am wondering why there is a surge in questions on the post.  There are far more comments on that post than anything else I have written on the site. Have search engines started giving it better placement in results?  Are people seeking greater transparency from the organizations with which they are involved and don’t know where to find answers? (Or perhaps, the closure of so many local newspapers means a lack of people to help them find answers)

If anyone has theories, please share.

I should note, I am not sure any of the queries have come from people involved with arts and culture organizations.  Only about half provide any details that identify what sort of organization they are working with and none of them have been arts related.

Is Your Non-Profit Subject To Open Meeting Laws?

IMPORTANT: Changes To Music Licensing May Impact Any Performance At Your Venue

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Some important information about changes to music performance rights came to my attention today and I wanted to share it with readers.

Apparently the consent decrees under which ASCAP & BMI operate are up for review by the Department of Justice. The public comment phase is ending on Friday, August 9.  You can find out more about the consent decrees on the MIC Coalition website.

Basically, because ASCAP & BMI operate akin to monopolies, they and other performing rights organizations (PRO) are limited as to what they are able to do when licensing performing rights. They want these limits loosened. You can provide feedback to the Department of Justice here.

Even with these limits, dealing with these companies is often confusing and criteria seems inconsistent. Many have felt they were forced into purchasing broader licenses than they needed.

Today I received a huge flurry of emails urging myself and others to oppose the loosening. I was confused about why there was this sudden urgency when the public comment phase opened at the start of June. I started to wonder if there was an effort to create a huge sense of urgency by rallying support at a late date. Especially since there were initially few details provided about why one should voice their opposition.

Come to find out, the reason is that a large number of organizations across the country received revised licensing agreements from BMI this week containing some alarming changes. There is some suspicion they timed the mailing to hit toward the end of the public comment phase.

Here is a page of the agreement that is causing the biggest uproar.

In section 1 (g), terminology has been changed from “Gross Ticket Revenue” to “Gross Revenue.”  According to the new definition, in addition to ticket sales, calculation of a fee will now be based upon revenue from sales on the secondary ticket market, service charges, handling charges, VIP packages, advertising revenue, box suites, sponsorships, merchandise, concessions and parking.

So essentially, if you have a sponsor for your show; sell VIP packages, merchandise, food, and charge for parking, all that gets factored in to what you pay BMI rather than just ticket sales as was the case in the past.

From what I am told, the definition of “licensee” has been expanded to include a wider range of activities.

For events without an admission charge, the definition of what is included in the fee calculation has been expanded from a flat fee based on seating capacity to one based on entertainment expenses like room, board and transportation costs for the artist.

There are other problematic issues which are a little difficult to explain in a blog post and might not apply widely to many venues. I suspect there are problems that people have yet to discover.  If you do any sort of licensing with folks like BMI and ASCAP or if you have been trying to fly under the radar, you want to pay attention to this.

If you don’t think this applies to you at all, but you have live music performance, you may find that it does. That band that plays at your museum during First Fridays is probably subject to music licensing.

With more opportunities for revenue available, especially if the strictures of the consent decrees are loosened, there is more incentive find the places that have been trying to slide under the radar.

If you have concerns, check out the MIC Coalition website to learn more or provide feedback to the DOJ.  Also –read any new licensing agreements you get very, very carefully.

 

Accepting Donations Is Increasingly Complicated Business

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While I have written about this before, of late it seems that the decision to accept a donation from someone is increasingly one requiring deliberation. An article on The Conversation lays out a case for either having a morals clause or time limits on any donation that involves naming rights.  Citing the number of non-profit arts, cultural and educational institutions who have refused to accept donations from the Sackler Family due to their ownership of opioid maker Perdue Pharmaceuticals, author Terri Lynn Helge notes it is easier to refuse a donation than to refund one.

As a nonprofit law scholar, I have seen that it’s much harder to sever prior arrangements with donors embroiled in scandals than it is to stop taking money from donors who are the object of public outrage.

[…]

When these scandals strike, charities face a dilemma – keep the money given by the now-tarnished donor or return the tainted funds. But returning the funds may be easier said than done.

Once the money is given away, it’s committed to charitable use. Returning that money just because the donor’s reputation is now sullied may get the charity in trouble with state regulators.

Helge mentions donations from Harvey Weinstein and Bill Cosby as cases where organizations began to experience negative perceptions of their brand and were faced with refusing a donation or making public statements distancing themselves from the donors.

Increasingly these are issues non-profits of any size need to consider as they accept and recognize donations from a variety of sources. Both returning the donation and grinning and bearing the bad publicity can be equally bad options:

They can give the money back, perhaps with interest. They can suspend programs or professorships named after the donors whose names have become an embarrassing burden, perhaps with threat of litigation from the donor for not fulfilling the charity’s end of the bargain. Or, they can continue to maintain the donor’s name and face public outrage.

[…]

Once the cost of doing nothing gets too high in the long run, charities may implement costly options to terminate the association.

That is why in my view, museums and other recipients of the drug-making family’s philanthropy could eventually redirect their donations. But that won’t happen until what they lose by honoring Sackler gift agreements becomes more exorbitant than satisfying all of the anti-Sackler movement’s demands.

Don’t Solicit Ads For Your Program Book

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Thanks to Drew McManus for remembering that Butts In The Seats turned 15 this weekend. Hard to believe I have been writing for 15 years now. Hopefully readers have found the content worthwhile.

Speaking of which….

Over on ArtsHacker today, I had a post on a very worthwhile subject– Unrelated Business Taxable Income.

I know, you are fighting to keep your brain from shutting down right now.

What that translates to for non-profit arts organizations is, among other things, any advertising you may have in publications, playbills, social media and web posts, etc., is considered an activity unrelated to your organizational purpose which means you need to pay taxes on it.

Now before you panic too much, placement of sponsors logos and contact information is permitted within the scope of your non-profit status. While advertising versus sponsorship may sound like a distinction without a difference, there are strict guidelines you need to follow.  There can’t be comparative or qualitative language, no pricing, no inducements/endorsements to use/purchase a product/service.

If this sounds like something you have run into trying to promote an event on a public radio station, that is exactly what it is. At one time I thought it was a characteristic of public broadcasting charters so they didn’t compete with commercial broadcasting. In fact it is a characteristic of non-profit status so it also includes school yearbooks, neighborhood sports leagues, community newsletters, etc.

The post I made isn’t a comprehensive discussion of the matter. I didn’t even try to tackle the recent change that made providing employee parking something non-profits need to pay taxes on. It is a good place to start before following up with an accountant or attorney.

On a semi-related topic, I also made a post about the detail to which a non-profit needs to go when valuing and acknowledging a gift from a donor.   Even if you think you know a lot about this subject, it is worth checking about because money from donor advised funds are viewed differently than those received directly from the donor. Given the growing popularity of donor advised funds, there are likely things you will want to learn more about from an accountant or lawyer.

You Need To Pay Taxes On Program Book Ads

Valuing and Acknowledging Donations

No Such Thing As Free Parking

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Gene Tagaki at Non Profit Law blog tweeted about IRS guidance for non profits that are now faced with having pay to taxes on the parking they offer employees.

If you didn’t know that you had to pay taxes on free or subsidized parking now….well you aren’t alone. It came as a surprise to a lot of people at the end of last year. Basically, whether you are an employer or an employee where free or subsidized parking is part of the employment package, there is tax to be paid.

The new rules aim to help taxpayers calculate the amount of parking expenses that aren’t tax deductible anymore since the passage of the TCJA. The guidance also is supposed to help tax-exempt organizations and their accountants figure out how the now nondeductible parking expenses can either create or increase unrelated business taxable income, or UBTI for short.

If any of this concerns you, you may want to read the article and chat with your accountant. The new guidance from the IRS is causing a lot of grumbles due to how late it is. (Mea culpa, I meant to post on it months ago, too)  A lot of non-profit groups were hoping for a repeal of these rules rather than tardy details on how to comply with them.

Broader Conceptions Of Creative Placemaking

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Last week I attended the Creative Placemaking Summit for the Appalachian region.  As much as I have read and written about Creative Placemaking, I don’t think I fully understood the what it encompassed until I attended this conference.

Hearing multiple people from various communities talk about the whole process of their projects from the involvement of government officials to securing funding and structuring financing to the sweat equity the arts and cultural invested in renovations, everything coalesced to provide me with a more complete understanding.

The topics of discussion and the level of detail were entirely different from what I have encountered at other arts and cultural conferences.  It reinforced for me that things don’t just happen in a vacuum. You can’t just plant art somewhere and assume economic and creative vitality will be attracted like honeybees if you can just stick it out long enough.

I had written about projects like the Poetry Parking Lot in Lanesboro, MN holding it up as a cool, creative idea. But having John Davis of Lanesboro Arts talk about how that project was driven by a desire to have tourists use that lot and how the renovation of a bridge to provide a pedestrian connection to the downtown was an important element provided a new context. The haiku on the light posts in the parking lot were only one of the incentives to use that parking lot. The others were the improved access afforded by the bridge and the two hour parking limit on downtown streets.

What I came to recognize was summarized by a comment one of the presenters made during the conference – Arts and cultural organizations need to realize creative placemaking can’t really be supported by grants.  Basically, just having artistic activity isn’t going to create economic vibrancy. Someone is going to have to arrange for financing and loans. Even in those cases when it isn’t the arts and cultural organization arranging for the financing directly, they are probably going to have to negotiate and partner with people who are doing so.

In some cases local banks won’t/don’t get into creative placemaking financing because the projects are outside their experience. You may need to cultivate a long term relationship with a regional CDFI (Community Development Financial Institutions).  Where most arts oriented conferences will have discussions about cultivating relationships with granting organizations and funders, this creative placemaking conference spoke more about relationships with CDFIs and community development corporations and foundations.

In some cases, the focus of placemaking efforts was in a much broader context than I am accustomed to hearing. One presenter talked about a project in Jersey City, NJ driven by an alliance of artists and arts groups. Their hope was to renovate a building with a community arts center on the first floor and affordable housing on the second through fifth floors. However, they determined if they had to give up something, it would be the community arts center. The fact that an alliance of arts oriented people felt that affordable housing was more important than a creative space made an impression.

In another session, Ben Fink from Appalshop talked about how they were getting involved with energy projects. He admitted it may seem strange that an organization founded on broadcast media and performance was advancing solar energy projects in coal country. Part of the reason is that high energy costs are threatening the existence of a number of local entities from bakeries to bluegrass festival sponsoring volunteer firehouses. He said the end goal wasn’t the completion of the solar project, it was to use solar energy to power the next projects.

The conference was populated with stories of groups that were renovating old buildings and storefronts and providing a place for the community to give voice to their creativity, but there were also stories like those in NJ and Appalshop that expanded my conception of the role arts and cultural organizations could play in the community.

If you have the opportunity to attend either the national or regional conference summits, it may be worth your time and the added perspective. It was actually less expensive to attend than some other conferences I have been to. (Not sure if that is the case for all the convenings since the cost for past and future conferences are not available on the website.)

Being On The Right Side of Copyrights

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I recently had a piece on ArtsHacker addressing questions about copyright which I see as a complement to an earlier piece I wrote for ArtsHacker that directed readers to tools that can help determine if a work is still under copyright.

This more recent piece includes a guide created by Harvard Law School’s Technology and Intellectual Property Legal Clinic.

Part of the stated aim of that guide was to help those creating protest art understand what uses of a public figure’s likeness is permitted.

But as I write on ArtsHacker, what I like about the guide is that it talks about how to identify those who hold the copyright of a work and what information you should provide when contacting them for permission to use their work.

Perhaps just as important for creative folks looking to expand their reach, the guide discusses how to license and merchandise your own work.

Check out both posts.

Even More Useful Info On Copyright And Intellectual Property

Copyright, Public Domain, and Fair Use Guidance Provided Here

If Your 990 Were Being Interviewed, What Would It Say?

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If you are gearing up for Giving Tuesday and getting all sorts of great promotional materials out in circulation, you may want to consider what potential donors might see when they start to investigate your organization to see if you are worthy.

I had a post that appeared on ArtsHacker today based on a helpful Non-Profit Quarterly article that charts out what sort of information is communicated in each section of your 990 filing.  Obviously, there is nothing you can do between now and Giving Tuesday to change the impression people infer from your 990 filing. Presumably your solicitation strategy extends beyond the next couple weeks meaning there is still an opportunity to affect the information people receive in the future.

The ArtsHacker post that appeared today also drew on some other pieces I wrote. One about the potential for lawsuits by beneficiaries, marginalized board members, donors who use the increasingly easy access to 990 filings as the basis for a claim.  Another dealt with the IRS’ increased scrutiny on good governance and whether an 990 indicated appropriate policies were in place.

As I also point out the 990 doesn’t need to be a major source of worry. The form provides a section for supplementary materials.

“… where you can attach additional information you think is pertinent. This may be a discussion of changes in operational and philosophical direction that resulted in an atypical shift in your finances. This is also an opportunity to mention any points of pride or information of interest to make a case for your worthiness to those who may be perusing your 990 filing to learn more about your organization.

 

 

Whose Theater Is It Anyway?

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I have written about stakeholder revolts where people in the community force non-profit boards to reconstitute themselves, usually in reaction to a planned closing of the organization.   In other places, board are revising their membership in order to better embrace their governance role and diversifying to better reflect community demographics.

It isn’t often that you hear the staff of an organization demand that the board resign and reform. Howard Sherman related the contentious and confusing situation at Theatre Puget Sound in a recent post on the Arts Integrity Initiative.  The theatre staff made an “either you go, or we do” ultimatum in a no-confidence letter to the board.

Unfortunately, this drama is playing out in a very public way according to Sherman because the executive director,

….sent the request for the board’s resignation to a wide cross section of the Seattle community, including the media, leaders of other arts organizations, community philanthropists and more, and even included a pair of internal e-mails by the board.

I second Sherman’s suggestion that the situation isn’t well served by rehashing all the gory details.

…The Stranger is on the case for those who want more information, and for future study by arts management educators and students. However, the bird’s eye view of the contretemps should serve as a reminder for boards and executive and senior leadership of arts organizations to examine their practices and policies, because while the situation is rare, it demonstrates how a rapid cascade of events can put an arts organization at risk.

Given the context of recent stakeholder revolts and other actions, this situation does bear watching for glimpses of larger trends that may be emerging in the non-profit world that may impact the arts.

The very question of who owns a non-profit organization is clear in theory, but muddied by practice. Especially when the founder is closely involved and identified with the organization. (which, to be clear, is not the case here.)

This episode could prove to be a challenge to the concept of organizational ownership depending on how it develops. Many of the deadlines the involved parties set expire at the end of this week, May 5-7, if you want to monitor things as they occur.

Though given the heated passions involved, it may be better to wait and revisit things later, allowing time to provide some insulation.

Cultural Intellectual Property Rights

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A few years back I had organized a panel on presenting the work of contemporary indigenous artists at the Association of Performing Arts Presenters conference. We were fortunate to have Moss Patterson of New Zealand’s Atamira Dance Company on the panel.  Prior to the panel we had a good discussion about various issues facing artists who were representing their cultural practices. It is a really complicated, but interesting subject.

One of the things Moss kept mentioning was that treaty and law guaranteed the Maori cultural expressions belonged to them. I wasn’t entirely clear to me at the time why this was important because it seemed obvious that a culture could lay claim to its traditional expressions.

Okay, in my defense, the APAP conference is a really busy environment and not exactly conducive to contemplation.

It wasn’t until Andrew Taylor tweeted about Maya weavers in Guatemala who are advocating for collective intellectual property protection for their textiles that I made the connection with Moss’ comments.

The bill has two objectives. First, it calls for a recognition of a definition of collective intellectual property, which is linked to the right of Indigenous Peoples to administer and manage their heritage. Second, it asks that indigenous nations be recognized as authors, in which case they would automatically benefit from intellectual property law. Recognizing indigenous nations as authors just like individuals or companies means that corporations that benefit from the export of Maya hand-woven goods will have to pay royalties to the communities who are the authors of huipiles.

Based on this, I did a little research on intellectual property law and Maori culture and found a heavily annotated summary on the Library of Congress page. The article provides a more detailed understanding of the factors.

…issues include the use of Māori symbols or language in trademarks and inappropriate use of customary knowledge and expressions in products, advertising, and for other commercial purposes. In general, Māori consider that they are unable to exercise control of the trade of their culture in any real or comprehensive sense under the traditional intellectual property framework, and that they are also not reaping the benefits of this trade, whether nationally or internationally.

The fact that certain knowledge or cultural expressions may be seen from a non-Māori or “Western” perspective as having entered the “public domain” is important in considering the type and level of protection that can be achieved. This concept is not necessarily recognized by Māori and other indigenous peoples for whom the cultural knowledge forms an integral part of their history and identity as both individuals and as a group

[…]

The Ka Mate haka “has become a symbol, not only of the All Blacks, but of New Zealand and all its people.”…it has also been used, satirically or otherwise, in foreign advertisements for Italian cars, Scottish whisky, and for a British employment website.Māori people, and particularly the Ngāti Toa tribe of the warrior chief Te Rauparaha, who authored the haka in 1821, have taken offense and expressed their anger at the inappropriate use of the words and actions,…

The recent anger caused by the Halloween costume of the Polynesian demi-god Maui from Disney’s Moana movie may provide a relateable example of the type of things that cause concern for Maori (among other Polynesian cultures in which Maui plays a part).

My goal here isn’t get make statements about the evils of cultural appropriation, just to provide an expanded context and history of the topic from different perspectives.

For Maori, these rights extend back to 1840 and have been the basis of many laws, initiatives, debates and legal proceedings since then. On the other hand, there are emerging efforts to secure intellectual property rights in other places around the world like Guatemala. I wouldn’t be surprised if similar efforts emerged in the United States as digital media make appropriation easier and corporate efforts to perpetuate IP rights for long periods of time continue.

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Butts In The Seats by Joe Patti is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.
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