HOW TO CUT AN ARTIST LOOSE
There’s been so much angst and frustration recently over President Trump and the new challenges of obtaining visas for artists to perform in the US, I thought it was time to focus on some of the many other issues that give us angst and frustration in the performing arts. This time: what to do before and after a manager or agent needs to dismiss an artist who becomes too difficult—or dangerous—to work with.
We’ve seen a rising number of instances recently where managers or agents have contacted us in situations where they need to dismiss an artist from their roster in situations ranging from “the artist physically attacked another performer” to “the artist can no longer perform without being so drunk that they fall off the stage.” In these instances, the dilemma for the manager is not whether to sack the artist, but how to warn everyone who has already booked or engaged the artist for upcoming performances. According these agents, “The presenters and venues are our clients. They trust us. We have long term relationships. We need to protect our clients.”
Fair enough. In any business, especially service-oriented businesses, you need to be polite and professional to both your clients and customers—even the unreasonably demanding ones. However, if your business is representing others—whether in real estate, law, insurance, investment banking, business transactions, or the performing arts—it’s important to distinguish your “customers” from “your clients.”
US law in most states impose two specific legal obligations on anyone who represents others in business transactions, including artist agents and managers: (1) All agents owe a fiduciary duty to those they represent (ie: they must put the artist’s interest above their own) and (2) All agents must follow the instructions and directives of those they represent (ie: the artists). There are other obligations, too, but these are the most important. In fact, the law considers these duties so fundamental that any attempt to have artists waive them in a contract are considered void and unenforceable.
This means that, while the artist/manager relationship should always be one of mutual respect, the artists are legally the manager’s “clients.” As the manager is selling an artist’s services, the presenters who book an artist are the “customers.” More specifically, the presenters are the customers of the artist, not even customers of the manager.
While there a multiple of legal, business, and ethical reasons for these rules (which I will spare you from for now), suffice it to say that these rules protect a manager by taking them out of the middle if something goes wrong (at least, legally) and protect an artist by ensuring that the artist is being represented according to the artist’s wishes and directives.
Without question, this can often pose some frustrating ethical conundrums for managers and agents—especially in situations where an artist directs you to withhold important information from a presenter or directs you to take action that you know could harm the presenter or harm your own relationship with the presenter. This can include anything from performing without the necessary licenses or visas to an artist directing you not to tell a presenter that they are too sick to perform. Should such circumstances arise, then your duty is to advise your artist against the foolishness of his or her plans. If the artist persists, and you believe that your own professional relationship with a presenter or anyone else would be imperiled, then your only legal course of action is to drop the artist from your roster. Anything else—such as giving the presenter a “head’s up”—would be a legal breach of a manager’s duty. But what about protecting your own interests? When you represent someone else, you cannot also act in your own self-interest. If you would prefer a role where you are legally allowed to act in your own best interest, become a producer and hire the artist yourself.
But what about after you have terminated the artist? Are you then free to warn your presenter friends and colleagues? No. Even after you terminate the offending artist, other laws—such as defamation (slander and liable) and tort (a fancy legal term for causing harm to others)—kick in to prevent either party from damaging the business relationships of the other. This means that you cannot immediately pick up the phone, call all of the presenters who booked your ex-artist, and advise them to cancel and book someone else—especially if the “someone else” is another artist on your own roster! While everyone is legally allowed to express an opinion, defamation and tort laws prohibit anyone from making false factual statements or otherwise intentionally attempting to cause other people to cancel or terminate contracts—fortunately, this goes both ways, also prohibiting artists from contacting others with the intent of harming their ex-manager or ex-agent.
You can absolutely contact presenters and colleagues and advise them that you no longer represent the artist. That’s factual. But do not embellish. If you are subsequently contacted by a panicked presenter or venue, these statements are permissible, non-fact based opinions:
“The artist was too hard to work with”
“The relationship was no longer working for either of us.”
Unless they can be proven as true, these statements are impermissible:
“The artist was so drunk he threw up on the orchestra.”
“The artist set the dressing room on fire.”
So what to do when situations demand you terminate an artist?
1) Immediately inform the artist in writing (which “could” be an email, but only if followed up with an old fashioned piece of paper).
2) Inform anyone and everyone with whom you have booked the artist or are in discussions with regarding the artist that you no longer represent the artist and that any further questions should be sent directly to the artist.
3) If they have any additional questions, advise them to contact either the artist or other presenters who have recently worked with the artist.
4) Step away.
When an agent or manager suddenly dumps an artist without warning, this will send a message to all but the most naïve that something has gone drastically wrong. Remember, actions often speak louder than words. And what if you are contacted in the future by a presenter or even another manager asking about your experience working with a former artist that you had to dismiss? I was once contacted for a reference about an ex-employee who was absolutely horrid. My response was: “She always came to work very clean and had no offensive odors that I recall.” Sometimes, its what you don’t say that says the most.
You can always find more information on our website: www.ggartslaw.com
. And if there’s something in particular you want to know about, be sure to let us know!
Brian Taylor Goldstein and Robyn Guilliams are the founding partners of GG Arts Law, a New York-based entertainment law firm, as well as Managing Directors of Goldstein Guilliams International, through which they provide comprehensive business, project and tour management, and legal services exclusively to the international performing arts and entertainment community. Brian has twice been recognized as one of New York's "Super Lawyers" in the fields of Entertainment, Intellectual Property and Immigration in The New York Times and is a well-known speaker and author on arts and artist management. Robyn is an internationally recognized specialist in foreign artist taxation and artist business matters, as well as a Co-Author of Artistsfromabroad.org, with an impressive past career in arts administration and management at major venues and arts organizations.
THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. One size never fits all. Circumstances and solutions can, and do, vary. Please consult with a professional—legal, medical, or otherwise—familiar with your specific facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, quoting us out of context, or doing anything rash!
Author: Brian Taylor Goldstein, Esq.