Florida Law
Florida Arts, Entertainment & Sports Law
Arts, Entertainment & Sports Law
The primary concern of artists and entertainers is the creation of their art. But creating art should not be their only concern, because making a living as an artist or entertainer also is a business. Likewise, while the primary concern of professional athletes is playing the game, athletes also must be businesspersons. Artists, entertainers and athletes must understand the legal aspects of the business relationships they enter into with agents, teams, sponsors, production companies, book publishers, managers, music clubs and record companies. They also should be concerned with laws that regulate any business relationships they form. An artist, entertainer or athlete who ignores these laws or fails to get important business relationships defined in writing is likely to encounter problems as his or her career advances.This chapter describes arts and entertainment law and outlines some of the elements of copyright and trademark law as they apply to artists who want to protect their rights to the artistic messages they create. This chapter also describes some aspects of sports law. Athletes' contractual relationships with teams and sports agents are discussed in this chapter, as well as the obligations of those who recruit college athletes for professional teams.
Arts and Entertainment Law
Arts and entertainment law is a broad area of legal
specialization, so there is probably no typical arts
and entertainment lawyer. An attorney practicing in
this area can concentrate his or her practice in just
a few or in many of the legal issues that an artist
or entertainer may encounter. An arts and entertainment
lawyer's practice may include helping artists set up
corporations or partnerships, settling copyright infringement
cases, negotiating business deals, and drafting contracts
between artists and record companies, production companies,
book publishers or agents. This section outlines the
areas of arts and entertainment law most likely to
be encountered by an artist or performer.
Types of Contracts
The following is a list of the most common types of
contracts an artist or entertainer is likely to encounter
in his or her career.
Shopping Agreement
A shopping agreement is an agreement that an artist
or a group of artists (such as a music group) makes
with an agent or manager, who then shops around trying
to get the individual or group a contract. The agreement
should spell out how long the contract is in effect,
or how much time the agent will search on the artist's
behalf. The time period should be long enough to give
the parties time to evaluate each other's ability
to work together, but not so long that the parties
are stuck with an unsuitable arrangement. This agreement
also should spell out how the agent or manager is paid
(usually a 10 to 20 percent commission) and which party
pays expenses. If the agreement stipulates that payment
is on a commission basis, the document should clearly
specify the terms.
Management or Booking Contract
When an individual artist or group wants to be managed
and/or promoted by another party, a written contract
should be entered into to spell out all the rights
and responsibilities each party has to the other. The
artist should carefully scrutinize all aspects of such
a contract, especially if it is a long-term contract,
to ensure that its terms are of value and that his
or her rights are protected. The contract should include
specific commitments by the agency to protect and respect
the artist's artistic freedom, promote the artist's
career and provide the artist with income or employment.
The contract also should address how the agency will
settle disputes over booking deals, and how the contract
will be modified if the group changes its members,
its name, or its artistic style.
Performance Agreement
A performance agreement is an agreement between a performer
and an organization or person producing (paying for)
the performance. A performance agreement should at
least state the basics: who performs, the location,
date and hours of performance, the manner of performance,
the amount of compensation for the performance, and
the manner and form of promotion of the performance.
A more detailed agreement may include who will pay
attorneys' fees for any disputes and the manner in
which disputes will be settled, such as arbitration
or mediation. Performers also should make certain that
the person signing the contract is the person responsible
for making payment after the performance or an authorized
representative thereof.
Mutual Release Agreement
Mutual release agreements outline how to manage the
legal and financial aspects of a group's breakup. Having
a mutual release agreement is especially important
if the departure of a member is not voluntary. Elements
that should be clearly specified include whether the
departing member has any rights to use some of the
group's material, whether the departing member receives
any future royalties and which party, if any, has the
right to continue using the group's name.
Consignment Agreement
A consignment agreement is an agreement between an artist
and an art dealer or gallery owner under which the
artist delivers a work of art to the dealer for the
purpose of sale. Upon selling the artwork, the art
dealer usually receives a commission or some other
form of compensation. In an effort to protect artists
from bankrupt or unscrupulous gallery owners or art
dealers, Florida law requires that all consignment
agreements be in written form and include the following
provisions:
*The proceeds of the sale must be delivered to the artist
at a schedule agreed to by the artist and the art dealer
*The art dealer is responsible for the stated value
of the artwork in the event of loss or damage while
the artwork is in possession of the art dealer
*The artwork will only be sold by the art dealer for
an amount at least equal to that agreed to by the artist
in writing
*The artwork may be used or displayed by the art dealer
only with prior written consent of the artist and only
if the artist is acknowledged in such use or display
*An artwork delivered to an art dealer for the purpose
of sale or exhibition, and the artist's share of the
proceeds of any sale by the art dealer, creates a priority
in favor of the artist over any claims, liens or security
interests in the artwork by creditors of the art dealer
After delivering the artwork to the art dealer, the artist should affix a tag on the artwork giving notice that the work of art is being sold on a consignment basis. Or, the art dealer could post a sign in his or her place of business stating that some of the artwork being sold are consignment pieces.
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How to Avoid
Talent Agency Con Artists
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a $5,000 bond with the state. If any person is the victim
of misconduct by a talent agency, he or she may sue upon
the bond for damages.
Organizing the Business
Probably the most important agreements that artists
sign are documents outlining their relationships with
each other. Some of the legal options artists have
when creating formal relationships with each other
are the topic of this section.
General Partnership
For both artists and business people, a common arrangement
is a general partnership in which all partners share
in managing the partnership. A general partnership
agreement should include the name of the partnership
and whether it is protected or protectable by trademark,
the names of the partners, the partnership's location
and duration, each partner's investment and participation
in profits and losses, the procedure for admitting
new partners and liquidating the interests of departing
members, the amount of time to be contributed by each
partner, and each partner's managerial and other responsibilities.
Other elements of a general partnership agreement that
may be of special concern to artistic groups include
naming a managing partner, setting a method for resolving
disputes, setting conditions under which a partner
can withdraw from the partnership, defining the grounds
for expelling a partner and specifying a period of
time during which a departing partner may not compete
with the remaining partners.
A major drawback of a general partnership is that each partner can be held personably liable for the losses of the entire partnership. This means that if the partnership accumulates a large business debt, or if the partnership loses a large lawsuit, each partner may be forced to contribute some of his or her personal money to help pay off the debt. This drawback can be avoided by forming one of the different types of legal corporations described in the next section.
Corporation
Although forming a general partnership agreement is
a common choice for a group of artists who perform
or create together, artists also have the option of
organizing as a corporation. To do this requires a
little more organization and commitment by the group,
because managing even a simple corporation requires
a greater time commitment and closer attention to paperwork.
Incorporating may be the best route to take, however,
because of the possible advantages of lower taxes and
reduced liability.
A corporation is a legal entity that operates separately from the shareholders, who are its owners. For most arts groups, all of the shareholders are also officers of the corporation. This is in contrast to the type of corporations most people are familiar withpublic corporations with shares that can be traded on a public stock market. Artists rarely form public corporations, so only those small corporations with privately held shares are discussed here. In such closely held corporations, the officers of the corporation (president, vice president, secretary and treasurer) hold all the stock issued by the corporation.
The corporation may be structured so as to qualify as an S corporation, which gives significant tax advantages to the owners of the corporation. Simply put, an S corporation is not taxed, although any profits distributed to owners are taxed as personal income. In some other types of corporations, the corporation's profits are taxed and the earnings passed along to shareholders are taxed again.
Unlike a general partnership, the owners of a corporation generally are not liable for the debts of the corporation because of the legal separation between a corporation and its owners. Thus, if a corporation goes heavily into debt, bill collectors generally can only go after the assets of the corporationthey may not try to collect from the personal accounts of the corporation's shareholders. This exemption from liability disappears, however, if it is proven in court that the shareholders engaged in fraud or otherwise seriously mismanaged the corporation.
Trademark
A trademark is a word, name, symbol or design used by
a manufacturer or merchant to identify its products
and distinguish it from other products. More to the
point of this chapter, music groups, theater groups
or individual artists or entertainers also have significant
investments in their names as a way to distinguish
their work from the work of other artists. A trademark
protects the owner of a product from others who would
make a similar product and try to sell it using the
owner's good name and reputation.
For an artist or group of artists, this protection is very valuablea fact perhaps best illustrated by noting that the name "Picasso" is a trademark. To make sure that the value in a namevalue that an artist creates through hard work and talentis not appropriated by someone else, the artist can register the name with the state or the federal government. Filing with the federal government protects the mark beyond the state's borders.
Although anyone can do an informal, preliminary search to determine whether a particular name is available to be registered as a trademark, it is best to hire a lawyer experienced in trademark law to do a comprehensive search and to properly register the mark. A search by an attorney affords financial and legal protection. Although it costs money to hire an attorney to conduct this search, it is much better to know if anyone else has the name before spending money promoting and using a mark that belongs to someone else.
A name does not have to be registered in order to claim it as a trademark. This is so because a trademark automatically arises from repeated, regular use of a name. However, if the owner ever wants to claim that someone else is infringing on the use of a name, he or she will have a harder time doing so if the name was not previously registered as a trademark.
Registering a name as a trademark is the first step in protecting exclusive rights to it. Whether a person registers a trademark with the state or with the federal government, he or she gets a certificate of registration that is valid for ten years. The registration can be renewed after ten years. Whenever the artist stops regular, repeated use of a trademark, he or she is open to the possibility that someone else can begin legally using it. Also, the holder of the trademark must police the mark to make sure that others who try to use it are notified of the holder's exclusive rights to the trademark. If the holder does not act to stop others from infringing on a trademark, he or she can lose the exclusive right to use the trademark.
Copyright
A copyright is a federal protection that affords creators
of original works the rights to exclusively reproduce,
distribute, sell, perform or publicly display the copyrighted
work. If someone writes a play or a book, drafts a
song, paints a picture, sculpts artwork or creates
a computer program, movie or photograph, he or she
already has the copyright to that work by virtue of
having created it. Registering the work with the United
States Copyright Office is mostly a legal formality,
but there are reasons for doing so anyway. The most
important reason is that if the creator of a work registers
a copyright on a work within three months of its creation
or at any time before an alleged infringement of the
work, he or she may be able to collect statutory damages
and attorneys' fees in addition to actual damages in
an infringement lawsuit.
A copyright owner has the exclusive right to control the reproduction, distribution, performance, display and creation of derivative works. However, the "fair use doctrine" permits the limited use of a copyrighted work without the owner's permission. Courts use four factors to determine whether use is fair use:
*Purpose and character of use, including whether the
use is of a commercial nature or for nonprofit educational
purposes
*Nature of the copyrighted work
*Amount of the work used in relation to the copyright
work as a whole
*Effect of the use upon the potential market or value
of the copyrighted work
A court using these four factors must decide whether the use constitutes a parody, which may be fair use, or if the use is for purely commercial reasons. There is a presumption that a commercial use of copyrighted work is not fair use. There is stronger protection for some works than for others. Advertisements do not receive as much protection as literary works, so an advertisement parodying another advertisement may be acceptable, while an advertisement using a copyrighted song may be unacceptable.
While a lawyer likely would not be needed simply to register a copyright, an attorney should be consulted in any sort of copyright infringement matter. A copyright holder also may want to engage an attorney if he or she is ever hired to create a work of art for someone else. The attorney can ensure that an employment contract clearly states who has copyright for the work.
Sports Law
Sports law covers a wide range of legal areas, and good
sports lawyers will be well-versed in many areas of
the law. This section describes some of the contracts
and relationships that professional athletes may encounter
in their careers.
Standard Player's Contract
Contracts in sports define the rights of the players,
the teams and the leagues or commissioners of various
sports. The standard player's contract specifies the
rights, duties and obligations of the player. Despite
the name, most such contracts favor teams, not players.
Generally, they allow that teams may terminate players
for cause, which means the player can be let go if
he or she is injured, is out of shape, cannot pass
the team physical, or no longer fits with the needs
of the team. These contracts further specify that the
league or commissioner can fine, suspend or discharge
players for violation of league rules.
Players are not totally defenseless, however. Leagues usually have players' unions that negotiate collective bargaining agreements on the players' behalf. In addition, many players are represented by agents who attempt to get the best deals possible for their clients. Athletes who are uniquely skilled or have attained star status have a greater ability to negotiate and to modify these standard contracts, adding provisions that increase income and job security. Some of the perks agents derive for their clients are signing bonuses, performance incentive clauses and the right not to be traded unless agreed to by the player.
Sports Agents and the Standard Representation Contract
There are a number of areas in which sports agents can
assist the athlete. In addition to contract negotiation
and public relations, an agent might contract to be
a client's money manager or financial planner. Product
endorsements and public appearances generally are handled
by an agent. Agents may serve as career advisers and
personal development counsel. Sometimes, an athlete's
agent also is the athlete's attorney. Florida law requires
that sports agents register with the Florida Department
of Business and Professional Regulation. Failure to
register is a third degree felony.
The standard representation contract establishes the rights and responsibilities between the player and the agent. Most such contracts contain language concerning disclosure of any conflict of interest, good faith negotiation and arbitration, as well as a clause stating which state law controls the interpretation of the contract. When the athlete is a college student, the standard representation contract may require additional provisions and usually is subject to further regulation. Both the agent and a college athlete recruited by the agent must notify the athletic director of the student's college within 72 hours of signing a standard representation contract. Failure to report may result in the contract being found unenforceable, and may open the door to criminal penalties, as well as civil suit by the school against the agent, athlete or both.
Resources
You're the Judge!: How to Understand Sports, Torts and
Courts, John M. Fotiades, Edgeworth & North Books,
1989.
Law of Professional and Amateur Sports, Gary A. Uberstine, Clark Boardman Co., 1988.
To order copyright application forms from the United States Copyright Office, call (202) 707-9100. To speak to a copyright specialist, call the Copyright Public Information Office at (202) 707-3000 between 8:30 a.m. and 5:00 p.m., eastern time, Monday through Friday, except federal holidays. In addition, frequently requested Copyright Office circulars, announcements and regulations now are available on the Internet. These documents may be examined and downloaded through the Library of Congress campus-wide information system LC MARVEL, which can be reached through Telnet (marvel.loc.gov), Gopher (marvel.loc.gov), and the World Wide Web (http://www.lcweb.loc.gov/copyright).
To order a Florida copyright application, write to the Florida Department of State, Division of Corporations, Trademark Registration Section, P.O. Box 6327, Tallahassee, FL 32314, or call (904) 487-6051.
Volunteer Lawyers for the Arts/Florida (VLA) is part of an informal nationwide network of legal assistance programs for artists. VLA maintains a legal hot line for individual artists and arts organizations in Florida, called Art Serve, which can be reached at (800) 453-4251. VLA also provides free legal counseling to qualified artists and not-for-profit art organizations. VLA's address is 1350 Sunrise Boulevard East, Suite 100, Ft. Lauderdale, FL 33304. The telephone number is (305) 462-9191 ext. 305. National Volunteer Lawyers for the Arts also maintains an Art Law Line to assist artists with legal problems and provide lawyer referrals at (212) 319-2910.
The Florida Department of Business and Professional Regulation can be reached at Northwood Centre, Suite 60, 1940 Monroe Street North, Tallahassee, FL 32399, (904) 487-2252. If writing for a list of licensed talent agencies in Florida, include a self-addressed, stamped envelope.
The Screen Actors Guild (SAG) maintains two offices in Florida. For northern and central Florida, contact SAG at 3393 Vine Street West, Kissimmee, FL 34741-4665, (407) 847-4445; in southern Florida, SAG is located at 7300 Kendall Drive North, Suite 620, Miami, FL 33156-7840, (305) 670-7677.
To check on the business practices of a Florida talent agency, contact the Florida Department of Agriculture and Consumer Services, The Capitol, PL-10, Tallahassee, FL 32399-0810, (904) 488-3022.