Are You Ready for Nutcracker (or Any Other Performance)?
Your performances show off your “product.” Consequently, they are your most important advertising and public relations activities. No matter how low-key, your production has to flatter everyone whose name appears in the program. But you can’t just “put on a show” without consulting your lawyer!
Start with the concept: What work do you plan to perform? Whose work will you use? Are you commissioning choreography? Or are you, your faculty or your students doing the choreography? Do you need to bring in someone to stage the work?
Choreography, like any other piece of intellectual property, belongs to the maker. You can’t just stage a “Nutcracker” from a videotape. If the choreographer still owns the “rights” to use his or her work, he or she may determine the terms under which the choreography can be used. First, you’ll need to learn whether you can use the choreography at all, and then, under what terms. Finding out who to contact may be as simple as looking at the DVD cover. Or it may be as complicated as tracking down attorneys representing an estate or trust. When a work is protected, plan on paying royalties, hiring an authorized person to stage the work and having your production approved.
Of course, the original choreography may have to be adapted to accommodate the abilities of your dancers. Does this become “your” work rather than the original choreographer’s? How much do you need to change to make the work your own? And then, what are your rights to this “new” choreography? Does it become yours because you did it? Or is it yours as a “work for hire” because your employee made changes and adapted it during the course of her employment? Who owns the choreography when it is original work by your students?
Similar questions should be asked about the music you plan to use. Teachers and studio owners may be more familiar with exceptions to copyright protection such as “fair use” and “public domain” because of recent and recurring battles with music publishers. Make sure permission to use recorded music is sought, granted and documented, or hire a musician to develop an adaptation of the score to avoid violating copyright law.
Copyright holders have not been shy to enforce their rights; on the contrary, historically, they have been aggressive in pursuing dance schools. The cost of consulting with an attorney, early in the planning stage, whose specialty is intellectual property law, should pay for itself if it avoids complex and time-consuming litigation. Ask for referrals from your adult students or parents and check with local law firms. Don’t hesitate to ask for free services (“pro bono publico”) as an arts or community institution.
Next step: Do you need to hire guest performers? Coaches? Additional teachers? Chaperones for your young performers?
You’ll need to prepare contracts for all additional hires. Use your generic independent contractor agreement, the one that you’ve used successfully in the past, because you certainly don’t want to deal with employment taxes and benefits for short-term personnel. Be clear with each hire that her services are limited, and be specific in the description of such services. Be sure he understands that no promises of future employment are being made or intended. State the fee.
If you don’t have a good independent contractor agreement to work from, now is a good time to retain counsel to develop one. Don’t do it yourself! The independent contractor relationship must withstand a possible audit by the state and federal taxing authorities. Getting a lawyer to defend such an audit will be much more expensive.
And the children? Waivers of liability, both on and off your studio premises, should be signed by all performers, or their parents or legal guardians. Accidents and injuries can, and do, happen and very often they happen in inconvenient places. Make sure your waiver form isn’t limited to incidents occurring in the studio. Include all locations where your performers might be: en route, the theatre, off-premises rehearsal spaces and any venue used for promotional purposes.
Get consents as well. Remember permission slips for class trips? Well, if you’re transporting your performers anywhere, you need to protect yourself not only from liability for accidents but from accusations that the children were “taken” without the knowledge of the parents or guardians. Get consents for photographs or moving images, too. Performers who belong to unions may not be allowed to appear in movies. Protective parents may be reluctant to have adorable pictures of their little ones in general circulation.
Use your generic forms or take this opportunity to develop new ones.
As “producer,” you will be faced with a variety of contracts for the use of performance and rehearsal space such as the technicians whose services are provided by the venue, loans of costumes and props, videographer, photographer, publicist, caterer, fund-raiser, etc. Watch out for situations in which you may still be liable to pay for services that can’t or won’t be rendered. Every contract should be reviewed by someone fluent in legalese, not by your office manager. Ask around for a parent or friend who can read contracts for you as a courtesy, or maybe for a free ticket!
You shouldn’t have to make your lawyer a partner in your production, but you do have to be fully aware of the legal issues arising out of a performance.