An Update on smoking bans and theater March 6, 2008
Posted by Gordon Firemark in : Law , add a commentSince I first wrote about this here and here, there have been some interesting developments on the questions surrounding laws banning smoking in public places. Following passage of a smoking ban law in Minnesota (the “Freedom to Breathe Act”), a growing number of bar and restaurant owners have been staging “theatre nights”, wherein they involve the patrons in “performance” of smoking.
The ban, which took effect Oct. 1, 2007, contains an exception for theatrical productions intended to allow actors to smoke as part of a role. But the law does not define a theatrical production, and bar owners have justified allowing smoking by printing up playbills and arguing their patrons are really actors. Their view seems to be that such activities fall within the aforementioned exemption , and so-far, they’ve been correct. Nobody’s been citied by the athorities…. yet.
The State of Minnesota’s department of Health has stated that the exemption does not cover the bars and restaurants, and that they expect full compliance with the new law.
The argument that theatrical performances are exempt from smoking bans is not new… I suggested last year that First Amendment grounds might be used to defend against enforcement of a smoking ban against smoking called for in the course of a performance of a play, as for example, where stage directions call for a character to light his cigarette, pipe, or cigar. I believe that if such a stage direction exists, it amounts to a form of artistic expression by the playwright, and as such, constitutes speech. So, the ban would amount to an unlawful prior restraint on such speech, and thus invalid on its face. I don’t believe such a ban will ultimately survive constitutional scrutiny, since the government objectives can be achieved through less restrictive laws.
Tags: minnesota, smoking, ban, theatre, theater, first, amendment, speech, freedom, freeAre audience participation/interactive shows in peril? February 11, 2008
Posted by Gordon Firemark in : Theatre law, entertainment law , 2 comments
A Chicago man has filed a lawsuit against the producers of the Blue Man Group theatrical act. His suit claims that he was chosen by the performers to participate in their “esophagus video” gag. The actors held the man in place, and allegedly “forced the esophagus cam into his mouth, and while he struggled to free himself, an image of his mouth and throat was projected on a video screen before the other audience members (including the man’s grandson). The man claims that this amounted to “offensive touching” caused injury to his throat, mouth and dental work, and his lawsuit includes claims for Battery, negligence, and negligent infliction of emotional distress.
The lesson for producers of live entertainment featuring interactions with the audience is that care must be taken to select audience participants who indicate their willingness to join in the show, and to be alert to signs that the audience participant may be embarrassed, upset or angered by the events as they unfold.
Audience members should be asked whether they consent to participate, and given a meaningful opportunity to decline. Ultimately, the performers should take “no” for an answer.
Photo courtesy of Flickr user “Stelb”, used by permission under Creative Commons License
Tags: noneRandy Quaid Fined and Banned from Actor’s Equity February 7, 2008
Posted by Gordon Firemark in : Theatre law , add a comment
Actor Randy Quaid has been fined in the amount of $81,572, and banned from the stage actors’ union, Actor’s Equity Association for life, following the union’s investigation and a hearing to examine his alleged bad behavior during the unsuccessful Seattle run of “Lone Star Love”, a country musical based on Shakespeare’s “The Merry Wives of Windsor”, in which the actor played Falstaff.
According to allegations made by his fellow cast members (all of whom filed grievances with the union), Quaid physically and verbally abused them, and engaged in “oddball” behavior during the rehearsals and run of the musical.
Quaid’s lawyer reportedly blames the show’s producers for the action, which, he says stems from their attempts to avoid paying Quaid’s contractually guaranteed financial participations, nor to afford him the creative approvals to which he is entitled.
Producers ended up canceling the show’s planned move to Broadway.
Source: Backstage
Tags: Equity, union, actors, quaid, randy, seattle, broadway, shakespeare, merry wives, windsor, lone star loveForce Majeure clauses (on firemark.com) January 23, 2008
Posted by Gordon Firemark in : entertainment law , add a commentIn the wake of contract terminations at ABC last week, I’ve posted a short discussion of Force Majeure clauses on my other website at firemark.com. Please have a look, and let me know if you have comments!
Tags: noneMusic Rights for Plays and Musicals January 21, 2008
Posted by Gordon Firemark in : Theatre law, entertainment law , 5 commentsRecently, received the following question via the ‘net, so I thought I’d answer here, since it’s a common and often misunderstood area.
I wrote an original play … We have a DJ who spins slightly different cues
every night, as the show has a bit of improvisation. Are we responsible to
get music licensing rights for playing this music? We do not include any
description of the artists, use their likenesses or in any way advertise to
capitilize on their work. The music is important to the arc of the show, but
under the control of our DJ. I have heard several conflicting (and
confusing) opinions on this matter and was wondering if you could tell us
what you think.
Well, first my answer is that yes, they must obtain clearance to include the music in the show.
Grand Rights vs. “Small” Performing Rights
Ultimately, the analysis of this question depends on the nature of the use of music. While it’s true that most venues pay ASCAP and BMI for blanket music licenses, which allow for the performance of music, the rights granted by these performing rights organizations cover only the so-called “small” performing rights.
Small performing rights essentially means the right to play or perform the song publicly, in an out-of-context way, where the song does not play an integral role in the overall performance. Typically, this includes radio airplay, live performances in a restaurant or bar. In a more theatrical situation, one example might be the use of a CD to play pre-show or post-show music, or in a revue type performance or concert.
Where the music in question is ‘important to the arc of the show’ as in the question at hand, we’re talking about so-called “Grand” performing rights.
Grand Rights, sometimes also referred to as “Dramatic Performing Rights” are for performances of the composition in a dramatic setting, such as within a stage play or musical, an opera, ballet, etc., where the compensation becomes part of the story, plot or theme of the performance. An example of a grand rights use is where a character in the show sings a popular song, or recites the lyrics to a favorite.
Grand Rights are not administered by ASCAP, BMI or any other, similar performing rights society. Instead they’re controlled by the composer and/or music publisher. Thus, in order to secure the necessary rights and permissions, the producer of the show must identify each song’s composer and publisher, and negotiation the terms of a license.
License Terms
Grand Performing Rights licenses may vary widely in scope and expense. In some instances, the playwright may have prenegotiated a royalty rate to be paid for uses of songs contained within the show, in others, the producer may have to offer a royalty based on a percentage of gross box office receipts. In many cases, the publisher of the song will want a guaranteed minimum fee.
In this day and age of the ‘Jukebox Musical’, this type of licensing is becoming more commonplace, so publishers have some sense of how to proceed, so, when multiple songs are included in a show, it’s often possible to negotiate a favored-nations deal, or a “pooled” royalty for music, in which each song recieves a pro-rata share of the pool.
Another point of concern is the scope and duration of the license granted. I’ve been brought in to help with more than one musical where songs have had to be ‘pulled’ and replaced because of license expirations, or ‘holdback’ provisions imposed by publishers. Obviously, changing a show mid-run can be a hair raising adventure, and may disappoint audiences and critics.
Conclusion
The best advice I can offer to directors and playwrights is to anticipate these issues when selecting music to incorporate into a show. Plenty of time should also be allocated to the licensing project. There’s nothing worse for your bargaining position to be negotiating the royalty in the hours before the show is slated to open.
And of course, the help of a lawyer experienced in both music and theatrical matters can be invaluable in these situations.
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