Legal Topics

We Are Too Small To Get Caught…Right?

by

It used to be that there were constantly stories about copyright owners going after kids who had downloaded music and video or sampled/excerpted parts of works and represented it as their own. We would hear about companies tracking stuff on computers and going after the owners.

You don’t hear these sort of stories as much any more. Since many of the copyright owners were big corporations, perhaps they figured there was a lot of bad P.R. associated with their efforts.

Or maybe they felt like there was too much of the activity going on that it was fruitless to try to catch everyone and try to stop it.

I know that a lot of performing arts companies have taken liberties with the shows they produce, assuming that the country is so big and their organization so small that no one will bother to check up on them.

Well thanks to technology, it is apparently getting easier for performance rights holders to monitor production activity. Or at least technology is making us more aware that the rights holders are checking on and catching people.

A recent You’ve Cott Mail brought attention to a couple cease and desist letters issued last week due to unauthorized script changes.

An article about a Milwaukee production of David Mamet’s Olenna implies they got caught making their unauthorized change when a review of the show appeared online.

As first reported by Howard Sherman, Hands on a Hardbody show creators actually attended a performance in Texas and noticed the show wasn’t the one they created. A number of actions were subsequently taken by the Dramatists Guild and Samuel French, Inc, which appear in updates on Sherman’s post.

These aren’t isolated incidents. Howard Sherman has been keeping an eye on these issues and addressing them on his blog. Back in January, he discussed the Asolo Repertory Theater having to postpone their opening when they got caught rewriting Brian Friel’s Philadelphia Here I Come! [Disclosure: I worked for the Florida State University side of the Asolo about 20 years ago.]

Sherman also covered a Long Island* high school making unauthorized alterations to the school edition of Rent

There are a lot of issues connected with artistic freedom, color blind casting, community standards and the comparative attitudes of material creators toward their works that factor into these stories. Most are addressed in the dozens of comments on Sherman’s posts. They are a good place to start if you aren’t familiar with the basic, but common, issues related to the stage.

While the performance licenses are pretty explicit about what you can and can’t do, the conversation about intellectual property is always evolving so it is definitely something to keep an eye on.

Not to mention that if you have been flaunting the conditions of your license assuming that you won’t get caught, it may be time to reassess that belief.

*I mistakenly misidentified the school involved with Rent as being in CT. Thanks to Howard Sherman for bringing the mistake to my attention

Info You Can Use: Legal Tips

by

A couple weeks ago, Gene Takagi of the Non-Profit Law Blog made a post cautioning lawyers about issues to consider when representing a nonprofit.

As you might imagine, every one of his tips were important for members of a non-profit board and leadership to know as well. Some of his traps and tips are frequent points of conversation in the non-profit arts community: don’t write a mission statement that is too restrictive; be sure you have a viable business plan and don’t assume non-profit status is your only option; boards members should be aware they have a very real governance role; non-profit doesn’t mean tax-exempt or no-profit; all overhead is not bad; get board and directors insurance.

There were also some topics that are less frequently discussed:

Traps
1. Failing to inform the client at the outset of representation that you represent the organization and not any individual directors or officers.

4. Including “non-voting directors” in the organization’s bylaws (under most states’ laws, there is no such thing as a “non-voting director” and, subject to very limited exceptions, each director has the right to vote on all matters before the board).

5. Providing in the bylaws that the board of directors may combine in-person votes at a meeting with email votes to take board actions.

6. Reinforcing the myth that nonprofits should always minimize overhead expenses (even at the expense of building an appropriate foundation on which to build the organization’s operations).

7. Failing to inform the client about the differences among volunteers, independent contractors, and employees, and the risks of misapplying these classifications.

10. Failing to discuss with the client the benefits of having organizational policies that address the legal and management implications of conflicts of interest, proper gift receipts, misuse of social media, expense reimbursements, acceptance of noncash gifts, document retention/destruction, and whistleblowers.

For me, that first one about the lawyer representing the organization and not you always strikes me as worth repeating. I have never had the ill-fortune of being in a situation where there was a even the whiff of legal action. However, when I am reviewing contract clauses that make me uneasy or am faced with a potentially contentious encounter, I will find myself thinking that the legal department will cover me if worse came to worse. Then I have to remind myself that in fact, they won’t necessarily have my back because they serve the interests of the organization, which may not include protecting me.

Point #5 about mixing in-person and email voting is a reference to a prohibition in California law. However, reading the rationale behind the illegality of such action, it seems reasonable to expect other states would have a similar restrictions.

Since I have heavily summarized his post, it is worth taking a look at everything Takagi cautions and advises for the legal health of a non-profit

Is A Ticket A Contract?

by

Yesterday, commenter Lee Saylor asked a question about foul weather and refunds on a post I did a couple weeks ago regarding that subject.

He noted that like many performing arts organizations, the no-refund policy was on the back of the ticket. That raised an interesting topic I wanted to discuss.

When I was first starting out my career, I was told that a ticket was a contract with the audience member and that the policies on the back were the terms of the contract. If I recall correctly this was to support the idea that if someone purchased a ticket, they had the right not to appear and we had to hold the empty seat for them.

However, I believe it was just last week that someone pointed out to me that it can’t be a contract because you receive the terms after you have made the purchase. That made sense to me because it wouldn’t be fair to a consumer to find out they were bound to certain conditions they were unaware of prior to their purchase.

EXCEPT, that is exactly what happens when you buy software. You don’t learn about the terms of service (TOS) until after you have purchased the software and start to install it. Back when software came on discs, there was a big outcry because if you broke the seal on the envelop it came in the company wouldn’t issue a refund if you didn’t like it or it didn’t work on your computer system.

At the time they were concerned people were copying the discs and returning them. These days I am not sure if software companies will refund you if you actually read the TOS and say you don’t agree and want your money back.

Refunds aside, like buying a ticket, you don’t learn the details of the TOS until after you have made the purchase. (Contrast with buying airline tickets where they encourage you to read their contract of carriage prior to completing your transaction.) So my question is, are they contracts? Does the timing of when you receive the terms determine whether they constitute a contract or not?

Do any lawyers or people who play them on stage or TV have any idea?

Now whether it is a contract or not doesn’t disqualify what is written on the back of your tickets as a statement of policy or rules that will govern the transaction should the person seek to redeem it for a performance.

Whether that will protect you against a legal claim is another issue entirely.

Stuff To Ponder: What Is The Definition of Emergency?

by

This last week I have gotten some real lessons in the importance of disaster planning.

During the quiet of the holidays I started a conversation with some colleagues about how we would handle inclement weather on performance days. Everyone keeps telling me how they try to shy away from scheduling shows in January because the weather is so bad. With that in mind, I wanted to have a plan for how we would proceed before the need arose.

Since we present a number of touring shows, we would be in a position of needing to pay artists per our contract unless the weather is so bad a state of emergency is declared. In that case, we would issue refunds to the ticket buyers.

However, if the weather is poor, but not so bad that we cancel the show, there may still be a number of people contacting us asking for refunds because they chose not to attend. My recent conversation has been about what we should do to respond to these people. Since we need to pay the performers, we probably won’t be in a position to offer refunds.

I have been discussing possible options with staff, board members and others. Our eventual solution may not make our customers happy but surveys have shown that even when the solution doesn’t please them, customers have a better impression of your company when you make the attempt to resolve their complaints rather than just refusing them outright.

In the process of the conversation, we decided we should post our policy on our website noting that we only offer refunds when the university closes and/or the sheriff declares a level 3 emergency.

And then came this week with the extreme cold.

Pretty much every school in county closed and many of the universities in the state did as well. We were open though.

Given that it was sunny and there was barely a dusting of snow on the ground, I started to launch into the stereotypical grandparent tirade and talked about how I stood out waiting for the bus in colder weather than this when I was younger. (Unfortunately, I not as tough as my grandfather. I only had to trudge uphill through the snow to the bus stop one way rather than both ways.)

Had we had a show and a different provost who decided to cancel classes, I might have been in a situation whereby our own policy dictated we issue refunds. At the same time the performing artists would stand there looking at me like I was crazy for saying the show was cancelled due to the cold and then glare at me when I said we weren’t paying them.

Not that the cold didn’t cause any difficulties. Yesterday we narrowly avert a large disaster when someone noticed a ball of ice forming on the sprinkler heads of the lobby fire suppression system. They just got the water turned off as the ice melted. There was some flooding, but nothing like what it could have been.

Every company knows that they should have a good disaster plan, how they will respond, where people should turn to for communications, etc,. Performing arts organizations need to know about the evacuation plans of the venue they perform in and think about issues like refunds.

But the events of the last week have made me realize I also need to know about the criteria being used by the decision makers I am depending on. I may assume the criteria is one thing and it won’t be. It may also change as personnel change.

As we heard about school closings Monday morning, a person I know who had attended and taught in some of those schools was amazed, noting they had never closed in the past. He opined that they might be quicker to close now due to people being more litigious.

In any case, being aware of shifting criteria can make for better planning. Had we or one of our renters had a school show this week with all the schools cancelling, that would have been quite problematic. Thinking about that, it just occurred to me that I should know what my policy about payment will be if a renter is impacted by school closings.

The person who made the decision to keep campus open this week when other campuses closed will be stepping down in June. I already started to advocate that very clear guidelines be developed for what conditions will result in the campus being closed and for the successor to be aware of the repercussions on our activities should the decision be made.

Now I also realize I need to know what constitutes a level 3 emergency in the sheriff’s eyes.