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

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

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

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”

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.

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