Condition or Warranty? The Opera decides

Covent Garden Opera House

The Opera is responsible for developing the legal difference between a condition and a warranty in a contract. Breaching a warranty allows a claim for damages only. Breaching a condition allows a party to terminate a contract and also claim damages.

Two important cases involved Opera singers and both were heard by Blackburn J in 1876. Bettini & Gye (1876) 1 QBD 183 is foundational for warranties and Poussard v Spiers and Pond (1876) 1 QBD 410 establishes the law around conditions.

The messages in those very old cases still holds true for entertainers today. If a performer is contracted to specifically do something and does not, the court will likely see that as a breach of condition and allow the contract can be terminated.

In the Bettini case, Mr Bettini did not arrive on time for rehearsals 6 days before the performance as contracted. The court said that being late was not fundamental to the heart of the contract to perform. Mr Gye could only claim damages for any losses incurred such as lost rehearsal costs or time but could not end the contract with Mr Bettini.

Compare that to the Poussard case where Mde Poussard was contracted to perform on opening night, but could not due to illness. The obligation to perform on opening night was so fundamental – it was at the root (or heart) of the contract that to not perform was a breach – even in light of the illness!

In this day and age these types of cases are rare as entertainers and producers & managers rely on ‘relationships’ to hold things together. That’s OK, but so you don’t damage relationships, understand what you’re getting yourself into.

Entertainers should know the heart of their obligations and be prepared to carry them out. As for producers & managers, if an obligation on an entertainer is so important that you would end the contract if they didn’t perform it – then say so in the contract.

Media and entertainment’s next big thing will happen whether you predict it or not

I’ve been working in or with the media and entertainment sector since I was 12 years old. It was so simple then. There was film & television (which is where I started at 12), music & radio (where I worked from the end of school) and newsprint and magazines (where I have never worked in or thankfully appeared in!)

Retraining as a lawyer I saw the evolution of digital media (or multi media as it was once known) as it happened. The www emerged on 28 bit modem, mp3 surfaced, transmission was light speed the dot com bubble inflated and burst and overnight the world shrunk. In the late 90s and early 00s the smart money saw the internet as a boon for cutting out some bricks and mortar businesses and replacing them with the Internet.  Amazon was the example of the time. No one then really imagined that sites like Google, Twitter or Facebook would emerge as poster children for new media.

Media & entertainment lawyers used to advise either the media business or the talent about film & television, music & radio or newsprint & magazines. The early millennial media mix up also changed the entertainment lawyers business from understanding and advising (about fairly complex businesses) to reaching into technology, investment structures and grappling with new business models. All of this whilst trying to find solutions for bringing new and old together in a legal system that itself is wheezing for air, exhausted from the continual change about to come.

The new media disrupted traditional media and blew apart the simple strands of what media was. Today it is largely irrelevant what the media is – traditional,  tech, new, old and that has been argued over way too much. I have spent years thinking about how the media would end up. I often spoke of change and figuring out what the next big thing was. Time after time I was frustrated that it moved faster than it would settle and the improbability of predicting even broad trends became far-fetched.

Life as a media & entertainment lawyer is still about working in shades of grey with some of the most creative and innovative people on the planet. I’ve moved beyond trying to figure out the media & entertainment industry’s next move. I’m enjoying the people.

Everyone’s written a song worth $1,000,000

He was passionate, I’ll give him that. The way he gesticulated to repeatedly make his points over again. “It’s a matter of principle! She stole my melody!” I had some sympathy for him. A world famous artist had sampled a melody line from a song that he wrote for another artist in the early 1980s and used it once in a live performance just the one time – and that just happened to be broadcast.

Had they cleared the sample, there would have been a few bucks from it, maybe something from the performance royalties in some parts of the world. Enough anyway to cut a cheque, but in no way was this worth the $1,000,000 he was demanding with each slammed fist on the desk. It also wasn’t worth spending the money on lawyers to pursue the matter, there wasn’t enough upside to cover the expense.

That day was a lesson in the gulf between creativity and getting paid which I distilled into this simple rule of thumb: no one cares about the copyright until it’s worth $1,000,000.

Once a copyright starts earning enough money to make you sit up and pay attention is the same day that anyone who had a creative nod towards its creation will arrive on your doorstep to demand their rights (aka money).

Some are opportunist, some genuinely should have participated from the beginning but didn’t. The reason I hear time again is that “I didn’t want to have the conversation about ownership” at the time creativity was peaking. It’s awkward to talk about money and contribution. I get that.

Truth is that most songs don’t and won’t go on to earn loads of money but some will and do. If you had a crystal ball you could know which would and ensure that you settled your contribution at the outset.

In absence of that, have the awkward conversation with co-writers upfront. Outline the contributions today. It will save you having to bang my desk in despair years later, while your co-writer lounges on a yacht.

Questions every performer should ask before they sign a contract

Abbey Road

Recording at Abbey Road

Here, sign this kid and I’ll make you a star!” This golden age of Hollywood cliché still haunts the entertainment industry today. Contracts are the necessary machinery that holds the industry together. Contracts ensure (basically) that producers have the rights that they need to make a show and that the performers get paid.

To safeguard that your contract does what it should and what you need it to do, nothing can replace quality legal advice from an expert entertainment lawyer (I would say that, wouldn’t I). But sometimes things like cost, time frames and excitement to be even offered a deal mean that bringing in the lawyers doesn’t happen – or doesn’t happen soon enough!

If you’re a performer and for whatever the reason can’t get legal help, then here are some simple questions that you should ask yourself about any entertainment deal that you’re offered. It’s not legal advice, but it will help you assess if the deal will work for you.

  1. What do they want me to do? Can I do it and am I OK with it?
  2. How much do they want to pay me and am I OK with that?
  3. How long does this contract last?
  4. To what standard must I deliver my performance?
  5. What do I have to promise them in addition to the performance required?
  6. What do they promise to do with my performance and where do they want to use it?
  7. Do I get additional payments for additional uses of my performance?
  8. Does this contract lead me towards my long term artistic goals?
  9. Can the people offering the contract perform the promises that they’re making to me?
  10. What warranties (promises that can lead to paying damages) and indemnities (promises to cover all costs over and above damages) am I required to give?
  11. Can I check this with an industry representative organisation that helps performers?
  12. Do my performer friends and contacts think that this deal sounds right?
  13. What do my instincts tell me? Does the deal feel wrong?

Don’t stop here – add your own questions and experiences to the comments section so that others can benefit from your tips.

If you get through this and feel that you’re unsure about the deal offered or you’d like to change some things – get some help. You may be surprised at how friendly, affordable and helpful some entertainment lawyers are! Feel free to email me too, I’d be happy to steer you in the right direction for advice.

Paul Weller wins High Court privacy case

Legendary musician and songwriter Paul Weller has succeeded in an English High Court case against the owners of the MailOnline, Associated Newspapers Ltd.

The court found that Paul’s children’s privacy was breached through publication of certain photographs taken whilst they were in California. The children’s Article 8 of the ECHR rights outweighed the publications Article 10 ECHR rights tipped the balance once the reasonable expectation of privacy was made out.

David Sherborne from 5RB Chambers in London represented Paul Weller and provides a succinct summary of the issues and the victory in the case here on his website.



Special Event: The Real Vibe of “The Castle”

I’m attending this event next week, I hope that you can too! It’s the vibe. It’s Mabo. At the price, you’re not dreaming…

The Stickler: 
with special guests:
* Santo Cilauro, co-writer of The Castle and
* The Hon Keith Mason AC QC, former President of the NSW Court of Appeal 
Santo Cilauro and the Hon Keith Mason AC QC join passionately pedantic movie buffs Mark Sutton and Zoe Norton Lodge to discuss the classic Aussie film and discover if the truth really does get in the way of a good story. 
The Stickler is the film forum that makes fastidiousness fun! See iconic moments from The Castle and discover the facts behind the fiction as the panel faces questions like:
* Would Darryl Kerrigan really have won in the High Court, or was Santo dreaming? 
* Is bumbling suburban solicitor Dennis Denuto based on someone in the Santo’s family? 
* Is The Castle the best ever film about section 51(xxxi) of the Australian Constitution?
The Stickler
The World’s Most Fastidious Film Forum*
7:30pm Thursday 8 May
at Giant Dwarf (link to map)
199 Cleveland St Theatre, Redfern
*may not technically be accurate

9 changes to entertainment industry laws that you need to know

This is a guest post from Amy GIbbs, from Brett Oaten Solicitors in Sydney. Amy has kindly summarised some important legal changes affecting the entertainment industry in NSW.

The Entertainment Industry Act 2013 commenced on 1 March 2014.  The Act aims to streamline the regulation of the entertainment industry, and improve the efficiency and transparency of relationships between performers, artists and managers.

The important changes to the Act include:

  • Licensing and bond requirements have been removed.  License fees lodged since 1 March 2013, and any monetary bonds will be refunded accordingly.
  • The term ‘performer representative’ has replaced the separate categories of ‘agent and manager’. The role of a performer representative may include seeking work opportunities and publicity for performers, negotiating performance agreements and finalising payment procedures for their clients. Similarly, the Act now refers to ‘venue representatives’  (formerly venue consultants) and ‘entertainment industry hirers’ (anyone who engages or contracts a performer for a performance).
  • Management agreements are now referred to in the act as entertainment industry managerial agreements. Agreements must include an ‘additional fee acknowledgment’ which explains that a manager can charge an additional fee if they perform duties on top of those set out in the agreement. The Act also introduces a three day cooling-off period for performers.
  • The Act introduces a Code of Conduct, providing performer representatives with more guidance on the standards of service, conflict of interest requirements and ethical considerations of their role.
  • Performer representative fees are now capped at 10% of the total amount payable to a performer working in film, television and electronic media. For performers working in live theatre or musicals, the cap is 10% for a period of up to 5 weeks and 5% thereafter. A performer representative can not charge any more than this unless they are also acting as a career manager, or if its agreed in writing under a managerial agreement.
  • Trust accounts should be established on behalf of the artist to receive performance money.  Any money not paid to performers immediately should be paid into this trust account within 14 days of a performance representative or venue representatives receiving that money on the performer’s behalf.
  • Performer representatives must now provide performers with the ‘Information for Performers’ fact sheet before entering into an entertainment industry managerial agreement. In the case of child performers the fact sheet should be given to their legal guardian, as well as the Office of the Children’s Guardian ‘Parents Fact Sheet explaining the Code of Practice’.
  • Performer representatives, entertainment industry hirers and venue representatives must also keep certain records, including financial statements, at their principal place of business for five years after they are made.
  • Failure to comply with the Act will see parties issued with penalty notices, prohibition notices, enforceable undertakings, and offences listed on a register of information.

If you want to discuss these changes further than you can contact Amy at Brett Oaten Solicitors on + 61 (0)2 9557 7173. Or let me know if you’re too shy, and I’ll introduce you.

Amy Gibbs is a solicitor at Brett Oaten Solicitors. She has been a presenter on FBi Radio for six years and currently hosts the weekly arts and culture show Canvas, interviewing local and international artists, curators, writers and other leading creatives. Amy is also the secretary of the board of FBi Radio. Prior to joining the firm, Amy spent two years working at Sydney law firm Minter Ellison.