Arts law

Law comes from an understanding among people that a guiding set of ‘rules’ when followed and
applied bene ts all individuals and communities.

They apply because of:

A. A consensus among the population
B. Punishment if the laws are broken

Common Law
Made by judges and their court decisions (as adopted from the Westminster system)

Keep a diary of important conversations.

Business structures
Sole traders:
• Single individual is owner of business.
• Can have employees
• Simple to set up
• High risk

Partnerships:
• Shared responsibility and liability.
• You become liable personally for partnership debts and creditors
• High risk

Company structures
A company is a separate legal entity. A legal person.
• Owners of the company become share holders with a percentage of company ownership.
• As share holders, owners do not have personal liability.
• Directors of the company have limited liability. They become legally responsible for company
breaches of law
• If company becomes insolvent, directors can then be made to be personally responsible to
company creditors. Insolvent Trading
• If Directors allow company to break the law, they can become liable.

Contract Formation
• Most contacts we form are oral
• A legally binding contract only requires an “offer” and an “acceptance” of that offer.
• The rejection of that offer or a counter-offer voids the original offer.
• Along the way to an “offer” there is often a chain of negotiations on the form of the offer
• A binding contract must have an exchange of “promises”
• Exchange of promises is called “Consideration”
• For contract to be binding “Consideration” must be real and not fanciful and the must be
“intention” for the contract to be legally binding
• Does not require and actual written contract, although written contracts are easier to identify
and prove.
• See “Carlill v Carbolic Smoke Ball Co”
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 • Starting work before a formal acceptance of offer could be construed as evidence of
acceptance of contract at its current stage. Get contract nished rst!
• Estoppel: In simple terms, an “estoppel” is an equitable claim that prevents someone from
denying the existence of a state of affairs in circumstances where such denial would be
unconscientious. This necessarily has an impact upon those legal rights which would otherwise
be exercisable by the person estopped. Can’t claim that you didn’t understand the background
(or recital) of the contract
• Deed: Form of contract that does not require a “mutual exchange of promises”
• MOU: Memorandum of Understanding. Precursor of contract - basic overview to clarify details
of proposed contract. Generally not binding / could be an ‘estimate’ (but a Quote is binding)
• Breach of Contract: Generally suing for Damages. Damages are meant to be compensatory.
The loss that you rare claimer have to be shown to be caused by the breach of contact. States
that is not binding
• Templates: Sometimes a client can engage a lawyer can provide a contract template which
would have variable elds to be changed for each use. These can be “Tweaked” by a lawyer if
required to suit speci c requirements.

Contract Content
1. Parties
• Who are the concerned parties - what legal individuals or business entities
• Full names, street addresses and ABN (and/or ACN)
• Research companies. ASIC website and do a search on the company name or ABN
2. Recitals
• an enumeration or listing of connected names, facts, or events.
• Background - overview of the contract context and content
3. Goods
• Speci cations of goods or services to be exchanged
• What they are, colour, functionality, (never promise outcomes)
• Quantities
• Timing of supply
• Delivery of said goods - who is responsible and who pays?
• Quality - don’t use absolutes like: “Best Practice”
4. Services
• Do not promise outcomes!!
• Buyer wants guaranteed outcomes and supplier does not (supplier may even have a speci c
clause specifying service supplied may or may not result in an outcome)
• Service description:
A. When - time of supply of services
B. Who - what parties are supplying services (individuals or companies)
C. Where
D. What
E. How
• Promises delivered that exceed what is “Reasonable” can void insurance contracts.
• KPIs - must be measurable and must have consequences set out
5. Cost or Price
• What currency? If you get paid in your own home currency - hence you don’t take the risk of
the exchange rate uctuating
• When is money to be paid
• Suppler will want to receive payment early to ensure cash ow, buyer will want to delay
payment until they see an outcome
• When; as pre-speci ed milestones pass
• Balloon payments - leave enough at the end to incentivise the supplier to complete the job
• GST - make sure you at GST and quote inclusive at the outset. You must quote the total by
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 • Manner of payment - cash / EFT / cheque
6. IP Rights
• Primarily in the arts we are concerned with © copyright
7. Con dentiality
8. Cancellation Clause
• Termination - on what basis if the contract is breached can the contract be termination
• Suspension
9. What Law Applies for this Project?
10. De nitions
11. Subcontracting Clause
12. Notices
13. Assignment of Contract - transferring the contract to another party
14. Signing Clauses - 2 directors What if a Contract is Breached?
15. Causation of Loss - see Wagonmound judgement
- http://en.wikipedia.org/wiki/
Overseas_Tankship_(UK)_Ltd_v_Morts_Dock_and_Engineering_Co_Ltd
• Firstly does the breach of contract cause loss?
• The loss claimed must have been caused by the breach
• But for the action of the defendant, would I have suffered my loss?
16. The Loss must be Reasonably Foreseeable
17. Remoteness of the possibility of Loss - see Bolton v Stone
http://en.wikipedia.org/wiki/Bolton_v_Stone
18. Plaintiff must Mitigate the Loss

Indemnities
Contractual promise to cover a loss.
I you accept risk as part of a contract indemnity, Insurers rarely if ever will accept that risk.
If indemnity exists, you should attempt to negotiate it out of the contract before signing.
There is a possibility that an insurance policy may extend to include the indemnity.

Negligence & Duty of Care

See Donahue v Stevenson - http://en.wikipedia.org/wiki/Donoghue_v_Stevenson
Negligence works independently of the contract.
Legally we owe a duty of care to our neighbour. Is it reasonably foreseeable that your neighbour is
endangered physically or scally. Standard of care should be “Reasonable”.
In parachuting and white water rafting for example, participants the is a Voluntary Acceptance of a
Level of Risk.

Contributory negligence states that although another person may be at fault, if you as a victim have
contributed to the severity of the incident you will inherence part of the risk.

Exclusions and Limitation of Liability

In order to be enforceable, any exclusion or limitation must be reasonable… It cannot be so
excessive that it negates the contract itself. You cannot have a limitation on safety.
These are a good idea from us - for example a limitation of liability to match the coverage of your
insurance.
Risk Warnings: These help reduce liability for high risk activities
Insurance:
Take Reasonable Care:
Be prepared to cancel!
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 Insurance
You should always read your policy to ensure you're being covered in the way that you
need. You can request that contracts be amended to suit your particular risk needs.

When completing an insurance application form… you have a DUTY OF DISCLOSURE to reveal
any contributing factors of risk. You should keep a copy of any disclosures you make for insurance.
They should be consistent. There is a second duty that should be observed - if your circumstances
change you have a DUTY OF NOTIFICATION to keep you insurer apprised if circumstances
MIGHT lead to a claim.

• Most incidents have a 6 year statute of limitations.

• Keep a separate le on your noti cations.

As a theatrical production person, you should consider not only Public Liability Insurance but
also Professional Indemnity Insurance.

Special Event Insurance: You can now insure for any particular production. These can help cover
open air events against weather, shows against unforeseen cancellation, etc. These are generally
available through brokers - or sit down directly with the insurer and insure for any particular risk.
This can can be assisted by the development of a risk management pro le. With broken, do have
a healthy skepticism.

If your production contains anything out of the ordinary (ie pyrotechnics), it is likely that your policy
does not cover it. These out of the ordinary items should be matricides and checked against any
existing policy as early as possible in the show pre-production. Once identi ed, these extraordinary
factors should be addressed directly with the insurer, and insurance extended to suit request.
Another common example of this type of exclusion for any policy includes anything or anyone
coming out of North America. North America can also include Canada and Mexico depending on
the particular insurer and individual policy.

Policies that are “Claims Made” (cover at time claim is made instead of when incident happened), if
you change policy… in order to cover any claims arising after policy change, you will need “Run
off” cover to cover any claims that arise for incidents during the original insurance period but
claimed after the policy has expired.

Intellectual Property
Con dentiality
General law implies that personal information under the courts of equity, if information is
disseminated and it is reasonable that this information is intended to be secret or con dential, that
you must keep it secret. This can be expanded out into a formal agreement. Fiduciary duty… this is
the con dentiality that is implied by professional practice… i.e.: lawyers keep their clients
information con dential or doctors and patient records.

Patent
Protects and invention - can be mechanical, biological. Need to convince the regulating patent
examiner is novel (new) and unique. Patent owner retains a monopoly on any future production.

Registered Design®
Maintains ownership over the “look” of an item - its aesthetic.
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Trademarks™
Brand protection. For large corporates can be their most valuable asset. When applying to protect
a trademark, you should do an ATMOS search for similar names on the IP Australia website.

Quasi IP Rights
An implied link between new material and protected material. Provision under the Competition and
Consumer Act: Misleading use of images / text / aesthetics implying a partnership, association or
endorsement.

Copyright©
Prohibits “copying” some one else work. Does not protect ideas, storyline, characters… but purely
the text or images. Arises automatically when the work is created. Copyright lasts for 70 years after
the death of its author. Copyrights protects across different type of reapplication or adaption of the
original material.

Plagiarism
Different than copyright in that it refers to an individual claiming authorship over materials when
they in fact did not create them.

Moral Rights
The right of the author to be attributed as the author. And the right not have derogatory treatments
to the work. Maintaining the right not to be changed.

INFRINGEMENT: There is a quantitative ad qualitative exercise in determining copyright

infringement. Infringement can be valued by an Account of Pro ts or determining the value of the
Copyright licence.

PERMISSIONS: check provision that work you are going to use actually is own by the other party.

FOR ROYALTIES: You should negotiate any royalties based on revenue as opposed to pro t.

Arts Marketing
Any type of promotion to the marketplace.

Pay special attention to the Commonwealth Competition and Consumer Act.

:Australia Consumer Law (found in schedule to act - Schedule 18- Millers competition and
consumer act

Primary point: S18 ACL: A person shall not in trade or commerce engage in conduct that is
misleading or deceptive or likely to be misleading or deceptive.

The act applies despite intensions. It also applies between businesses. Law most often applied in a
marketing context.

Quote always including GST. No doing so is misleading. $####.## (incl. GST).

ACCC administer this. They are usually noti ed of breaches through consumer complaint.

Consider the Dunderklumpens! Will the least sophisticated intended recipient of your marketing
follow and understand it?

Section 29 expanses this for the ACCC able to punish breached.

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 Puf ng is ok, ensure you use language that cannot be forensically tested... The best is OK
(Subjective with out speci cs)
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