Take Five

Not only is the title a reference to one of the most well-known tunes by the Dave Brubeck Quartet, but is also a cue to direct all of the readers of The Arts Law to take a break from my legal/entertainment musings and check out an amazing big band.
           Music is good, live music is even better and jazz is perhaps the coolest form of music. Take all of this together and admix it into the aggregate chops of some really talented musicians and you've got Psych! The Unexpected Big Band.
Yes, this Band's manager (and one of the co-founders) is my very good friend, but I've got to tell you how truly great this Band really is -- I've attended more than a few of just their rehearsals and have been blown away at how well they play reading from charts...for the first time.
           As for their live performances, well, they cover everything from big band standards to more modern tunes to performing compositions by some of the best jazz composers and performers around. My legal advice? It would be a definite breach of coolness to not check this Band out now at: http://www.psychbigband.com/
           And I'll see you there!

The Shipping News

A case recently came down from the U.S. Court of Appeals for the 9th Circuit entitled OneBeacon Insurance Co. v. Haas Industries, Inc. (No. 08-16826/D.C. No. 3:07-cv-03540-BZ) that has key implications for those in the arts -- especially those involved in property management and the transportation of everything from cameras to costumes to things craft services.
           Without going into all of the procedural details of this appellate case, the crux of the matter is that a transportation or carrier company (e.g., FedEx) can limit its liability -- meaning that it is very important for those in charge of that which is being transported to carefully review the tariff(s) provided by the carrier because a carrier is now only required to:

1. provide a shipper with the carrier’s tariff if the shipper requests it;
2. give the shipper a reasonable opportunity to choose between two or more levels of liability;
3. obtain the shipper’s agreement as to the shipper's choice of carrier liability limit; and,
4. issue a bill of lading prior to moving the shipment that reflects any such agreement.

           Number one above is the rub: if a shipper fails to request a tariff or ask about increased levels for insuring the goods during transportation, a claim for lost goods might just end up being based one something like a plain-vanilla, per pound value that comes with the basic tariff.
Let's say you are the producer of a Shakespearean show that is going to move from venue A to venue B (and B here stands for Bigger venue, with Bigger ticket prices and a much Bigger audience...I do like to be optimistic...). Assume that the aggregate value of the struck set, costumes, lighting and effects is over $200,000.00. However, the weight for all of this is only 300 pounds. If you -- as the shipper -- do not ask to see the tariff and select a higher level of coverage (sometimes nominated as "excess valuation" or "declared value"), the struck set, hand embroidered costumes, lighting equipment and effects that cost thousands of dollars that end up getting lost and/or damaged in transit might only have a claim value of $2.00 per pound, resulting in only $600.00 (cue the screechy horror film violins here).
           In light of this, always ask to see a carrier's tariff(s) and reflect upon whether it makes sense to select a level of coverage above and beyond the carrier's "standard" tariff either directly from the carrier or under supplemental insurance that your production company either has for the production from one or more entertainment industry insurers or can be purchased on a one-time basis for the particular shipping from venue A to venue B. Often, extra coverage is not that cost-prohibitive and can really result in peace of mind for the shipper, as well as more money should a claim for loss have to be made. If all of this seems to call for more paperwork than you might want to handle then, well, cue your lawyer here.
           For shippers, chances are you've already got a website. In California (and as discussed within this Blog) a Privacy Policy is mandatory...so if you've taken the time and trouble to post a Privacy Policy and the website's Terms of Use, why not post up your tariffs too? Again, cue your lawyer here to have him or her draft and/or review the tariff to be posted. Also, take the time to have your counsel look over all of your forms for clarity as real clarity often help prevents misunderstandings; and prevented misunderstandings reduce -- if not eliminate -- lawsuits before they begin.
           Put into an analogous concept, shippers should think about their documents along the same lines that they think about their fleet: quality machinery helps for timely shipment and delivery (and thus payment), all helping a shipper run the shipping business more smoothly and profitably. A shipper's contractual documents are -- if you'll forgive me a pun here -- part and parcel to transportation success.
           And here endeth the lesson...for now....

The Once & Future Medieval....

Well, it may or may not all be about the various forms of arts and entertainment...I do delve into other legal and historical topics as well. Slightly less exciting but definitely less salacious then much of the Medieval programming currently making the rounds on "cable", check out one of my articles posted on The Medieval Archives page at http://www.medievalarchives.com/2011/04/05/some-medieval-law.

Remember When, Mad Men

Recent entertainment industry news has highlighted that the next season of Mad Men will likely not be seen until 2012. This delay will likely accumulate into a perceived hiatus for fans of this show, seriously undermining its longevity in the process. Put into marketing parlance, think “buzz kill”. This author would like nothing better to be proven wrong about the foregoing prediction, but while not exactly an entertainment law per se, it is axiomatic that supply creates demand and the converse is just as true: lack of supply decreases demand.

While no program lasts forever, diminishing the supply of a show tends not to be a recipe for success: viewers will (literally) look elsewhere for similar and/or other programming.

Sadly, business and marketing history repeatedly reveal examples of this sort of scenario. Remember Rainier Beer? They had an ad campaign that garnered much attention many years ago: a television ad containing a motorcycle sound matched with a voice over that went, “raiiii-nieeeeer-beeeeeeeer” as the visual of the motorcycle drove towards a mountain and out of the frame. It quickly became the talk-of-the-town and people flocked to their local stores to buy it. Guess what? Rainier Beer did not have sufficient stock to meet the demand and the product became past history all to quickly. And granted, while entertainment is not beer, sometimes a little bit of Harvard Business Review-type analysis can be revealing; what does not work for selling a physical product might just not work for marketing a motion picture, a play, a television show, a radio program or a podcast.

In the case of Mad Men, what was supplied was a show that had similarities to The Sopranos (there Tony was the man-in-the-corner-office; in Mad Men, Don Draper occupies a similar role) with intelligent writing, an excellent cast, outstanding production and so on, and so on. Unfortunately, and as with The Sopranos, as seasons progress with Mad Men, it looks like there are going to be longer gaps between each season and fewer shows per season.

Not to sound too much like the penultimate pessimist here, this author can offer up an example of another program whose supply created demand and, in turn, that demand was progressively satisfied. The original Star Trek series turned out to be such a hit that the original (and later) fans never forgot it. Later, movies with the original cast came out. Then, there was Star Trek, The Next Generation. After that, more movies. And after that, another series. Thus was created that Star Trek “franchise”, an ongoing movable feast.

Food – be it actual or proverbial – for thought.

It's a Web, Web, Web, Web World!

Seems like every writer, director, producer, casting agent, production company, post-production house and studio now has a webpage. All well and good as the Internet can – and often is – one of the most cost-effective ways to reach out and target someone, be it those who might work with you, those who might want to buy a ticket to your “picture” or those who might want to purchase your services and/or products.

Chances are, you too already have a webpage…and if you don’t, you should. Here’s why: aside from having the ability to look insanely cool, webpages can have embedded practically any media you want. Are you a musician looking for a publisher? You’ll want your webpage to have some downloadable music files. Just made your first film? Then you’ll want your webpage to have trailers. Do voiceover work? Audio samples of your voice should be readily available on your webpage.

That being said, many entertainment-based webpages are lacking a posted Privacy Policy. In California (where there is no small amount of entertainment activity), the law (as embodied in Business & Professions Code §§22575-22579) requires that operators of a commercial website or online service that collects “personally identifiable information” post a Privacy Policy on the website and also to comply with that posted Privacy Policy. Do most websites collect such “personally identifiable information”? Generally, yes; as soon as there is the ability for a user of a particular webpage to request information online “personally identifiable information” is collected. Specifically, “…[t]he term ‘personally identifiable information’ means individually identifiable information about an individual consumer collected online by the operator from that individual and maintained by the operator in an accessible form, including any of the following: [a] first and last name; [a] home or other physical address, including street name and name of a city or town; [a]n e-mail address; [a] telephone number; [a] social security number; or, [a]ny other identifier that permits the physical or online contacting of a specific individual.” Bus. & Prof. Code §22577(a)(1)-(6) [emphases added].

Importantly, the above definition dovetails with the law viewing your website as “commercial” even though you might think it’s not. Most folks set up a webpage in the hopes of doing everything to finding an agent to obtaining financing for their project. These are all commercial activities. And they should be. As well, using your webpage to engage in “data mining” (e.g., whose looking at my webpage? how often? have they bought tickets? what sorts of information are they requesting? and so on, and so on) is not only permitted, it’s a good way to find out of your webpage is generating the “buzz” that you want.

To do this, though, you better be operating within the bounds of the law. The good news about California’s requirements vis-à-vis Privacy Policy compliance is that Business & Professions Code §§22575-22579 is not difficult and clearly enumerates what’s required, containing some pretty clear guidance.

As to posting, §22577 provides, “[t]he term ‘conspicuously post’ with respect to a privacy policy shall include posting the privacy policy through any of the following: [a] webpage on which the actual privacy policy is posted if the webpage is the homepage or first significant page after entering the web site; [a]n icon that hyperlinks to a webpage on which the actual privacy policy is posted, if the icon is located on the homepage or the first significant page after entering the web site, and if the icon contains the word ‘privacy’ the icon shall also use a color that contrasts with the background color of the webpage or is otherwise distinguishable; [a] text link that hyperlinks to a web page on which the actual privacy policy is posted, if the text link is located on the homepage or first significant page after entering the web site, and if the text link does one of the following: [i]ncludes the word ‘privacy’; [i]s written in capital letters equal to or greater in size than the surrounding text; [i]s written in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks that call attention to the language; [a]ny other functional hyperlink that is so displayed that a reasonable person would notice it.”  Bus. & Prof. Code §§22575, 22577(b)(1)-(4).

As to the content required, a webpage’s Privacy Policy must do all of the following: “…[i]dentify the categories of personally identifiable information that the operator collects through the website or online service about individual consumers who use or visit its commercial website or online service and the categories of third-party persons or entities with whom the operator may share that personally identifiable information; [i]f the operator maintains a process for an individual consumer who uses or visits its commercial website or online service to review and request changes to any of his or her personally identifiable information that is collected through the website or online service, provide a description of that process; [d]escribe the process by which the operator notifies consumers who use or visit its commercial website or online service of material changes to the operator's privacy policy for that website or online service; and, [i]dentify its effective date.”  Bus. & Prof. Code §§22575(b)(1)-(4).

You get the picture (pun intended).

Welcome

Whether it is a Homeric epic recited onstage at the theater at Epidaurus, a classic comedy reworked and replayed in an amphitheater in Rome, Shakespeare resounding from the boards at the Globe Theatre to one of the stages at Ashland, a Broadway musical performed at the Hollywood Bowl, a motion picture premiere, streaming Internet media or a podcast series, the dramatic arts entertain us, inform us, teach us, connect us, take us to new places, expand our horizons and continuously offer up opportunities (including – yes – employment) for those who participate, including writers, producers, actors, directors and all those that work to develop entertainment, in the dynamic arena we know as “The Business”.

And attorneys, such as the author of this Blog.

Without much that lawyers do – ranging from assembling an option and purchase agreement for the literary property that forms the genesis of all projects, to counseling a production company, to negotiating the terms of distribution agreements, and so on and so on – projects would simply not get off the ground. The good news is that when the legal counseling is done right, everybody wins: the writer, the producer, the director, the actors, the post-production people, the craft services folk and, of course, all those who experience the final entertainment product.

The purpose of this Blog is to provide insights into the goings-on in the entertainment business in general – hence the title of “The Arts Law” – and current legal issues in particular…all delivered with clarity, intelligence, realism and no small amount of humor.