New York Entertainment Attorney

LLC’s, Corporations, And Other Business Structures - Part III: Written By New York Entertainment Lawyer And LLC Counsel John J. Tormey III, Esq.

This article is not intended to, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally.

Part II of this article discussed how individuals historically incorporated their businesses in the hopes of avoiding personal liability, but then often became dissatisfied with the so-called “double taxation” thereby resulting. This, among other motivations, brought the S-corporation and then, the limited liability company (LLC), into being. As a New York entertainment lawyer practicing in this day and age, I most often see limited liability companies (LLC’s) as opposed to other forms of entities used in film, music, television, publishing, and Internet businesses. However one cannot understand and appreciate the advantages typically provided by the limited liability company (LLC) unless superimposed as bas-relief upon the entity’s historical context – which gives further meaning to the LLC across all sectors and industries including entertainment and media.

Society clearly benefits from encouraging people to start businesses - and take some commercial risks without an attendant risk of personal ruin. Yet otherwise well-intentioned and well-motivated people were either quitting businesses or exposing themselves to personal liability - in both instances due to their aversion to the so-called “double layer of taxation” engendered by the C-corp. Additionally, the “double” taxation of the C-corp was creating a disincentive for new people to go into business - particularly those who were risk-averse. There had to be a better way.

That better way, at the time, was the S-corp, which came into existence a number of years ago principally for the above types of reasons and rationales. It was named after a “Subchapter-S” in the Internal Revenue Code of the United States, and was regularly recognized by the IRS and state tax authorities alike. One of the familiar tasks for an entertainment lawyer became the act of ensuring that clients timely made their appropriate S-corp elections (see below) with appropriate governmental authorities – hardly the romantic notion one would have of what it is like to interact with talent and go to celebrity premieres..

Akin to the C-corp in most other respects, the S-corp only mandated a single layer of taxation, as opposed to the C-corp’s double layer of taxation. But there were also a few catches.

One had to make a formal written “election” (or in some cases, “elections”) to qualify as an S-corp. If one didn’t do so in time by a strict deadline, one would lose S-corp status and be “doubly” taxed like a C-corp instead. As most entertainment lawyers can attest, this kind of eventuality could actually snuff out a fledgling entertainment or media start-up business in its first years of existence, already engaging in risky and speculative business activity as is often the case in media and entertainment.

There were other restrictions on S-corps, too, such as a limit on the number of shareholders, a limit on foreign ownership, and a limit on corporate parent-subsidiary ownership. Some of these restrictions have been loosened - and in some cases eliminated - in recent years; so one should not rule out the S-corp without first updating its tax code requirements with one’s lawyer – entertainment lawyer or otherwise – as well as one’s tax accountant. The historical restrictions of the S-corp put business owners in a “Catch-22” situation - they clearly wanted a single layer of taxation, but in the context of an entity that wasn’t so restricted. The newer solution: scrap the idea of a corporation at all, and instead form a limited liability company, or LLC.

The limited liability company (LLC) is akin to the S-corp but without most of the attendant historical restrictions. Yes, there were a certain number of restrictions on the LLC, too, when it first appeared on the scene - most of which were subsequently lifted by either the IRS or state legislatures, or both. Again, S-corp restrictions have also been lifted in recent years, making the S-corp and limited liability company (LLC) look more similar to each other as time goes on.

But even as of this writing, the limited liability company (LLC) is usually considered the most advantageous entity from a tax perspective of all 3 most commonly available forms, for the small business owner to create. As a media and entertainment lawyer, the LLC is the entity which I am most often asked to create. The LLC is also considered the most flexible of all 3 entities. What does “flexible” mean? Well, it is considered easier to adapt the LLC to later-occurring additional equity-holders in one’s business, for example, which is another familiar task for an entertainment lawyer in the context of artistic co-ventures - and the word “easier” in this context translates to “less legal fees”. The LLC is in most cases an entity which is easier to manage and administrate.

There are some disadvantages to the limited liability company (LLC), too. The LLC can take more time to finalize, and in some cases can be more expensive to form and/or file with the government - as compared to an S-corp. Some states historically prohibited 1-person LLC’s. Some states still have an underdeveloped body of judicial case law on the LLC, since the entity is still quite new in many states - so the treatment of the LLC under the law may be less certain than the treatment of a corporation. We in New York have an odd restriction, too, as a result of the powerful newspaper and media lobby galvanized during the legislation’s enactment which as a media and entertainment lawyer I suppose that I should not begrudge. This restriction may be present in another state or two as well in analogous form. The restriction is this: if one elects to form a New York LLC, one must publish its existence in periodicals for a number of weeks, before being accorded the legal privilege of initiating a litigation - as a plaintiff - in the LLC’s name in the New York courts. Publication of an LLC’s naissance in Manhattan is expensive - the publication of a limited liability company in periodicals of the creation of a proposed Manhattan LLC can range between $1,000 and $3,000 (the figures can vary and are smaller in other parts of New York State apart from Manhattan).

Even so, the limited liability company (LLC) is considered the trend-setting entity of those “in the know”, across the country. As an entertainment lawyer in New York, I have noticed that hipster Californians gravitate to LLC’s just as much as hipster New Yorkers seem to do. And part from hype, assuming that one can afford to form an LLC, and assuming that one can live with whatever restrictions apply to the LLC in one’s jurisdiction, it may in fact be the entity of choice, and an improvement over the older S-corp and C-corp structures.

A limited liability company (LLC), though frequently mistaken for a corporation, is technically not considered a corporation – rather, it is an unincorporated entity under the tax code, more like a partnership than anything else, but one that (like the S-corp and C-corp), if properly formed and maintained, should provide its members with insulation against personal liability.

If one doesn’t incorporate or form a limited liability company (LLC), the business will likely be what is known as either a sole proprietorship (if a 1-person company), or a general partnership, de facto or otherwise, (if comprised of 2 or more persons). Any entertainment lawyer or other lawyer will opine that this could result in unlimited personal liability for the entity’s owner or owners. Again, that means that an owner’s personal assets can be at risk to satisfy the obligations and debts of the business. Any entertainment lawyer or other lawyer will opine that personal liability is not a risk worth taking. In addition, using a corporate entity or limited liability company (LLC) – particularly an LLC in this day and age - could add a good deal of “cachet” or credibility to one’s business endeavors, in the eyes of other persons and companies with whom the business has contact.

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My law practice as an entertainment lawyer includes incorporations and the formation of limited liability companies (LLC’s). If you have questions about legal issues which affect your career, and require representation, please contact me:

Law Office of John J. Tormey III, Esq.

John J. Tormey III, PLLC

1324 Lexington Avenue, PMB 188

New York, NY 10128 USA

(212) 410-4142 (phone)

(212) 410-2380 (fax)

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Business Structures - Part III

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LLC’s, Corporations, And Other Business Structures - Part II: Written By New York Entertainment Attorney And LLC Counsel John J. Tormey III, Esq.

Part I of this article discussed the process of selecting a new name for a business, typically a limited liability company (LLC) or a corporation in this day and age. Many people choose to incorporate or form an LLC, so as to minimize their personal liability for the debts, liabilities, and obligations of their business. There is cost to forming an entity, but the cost is often worth it. What follows is a brief discussion of “personal liability”, and the types of entities that may be available. These types of issues regarding corporations and limited liability companies (LLC’s) are often brought to an entertainment attorney such as myself in the context of new entertainment venture start-up companies and otherwise, but are in fact universal concerns across manifold sectors and industries besides entertainment.

2. Choosing an Entity.

A full description of all the differences between an S-corporation (S-corp), a C-corporation (C-corp), and a limited liability company (LLC) would be beyond the scope of this article. Besides, the distinctions are often altered - some would say “blurred” - by changes in the Internal Revenue Code and state laws. Even by the time you read this article, further changes to relevant tax laws and state laws may be made, further affecting your entity choice as between a limited liability company (LLC), a corporation, or other available form of entity such as a partnership or trust. The bottom line is that a choice of entity should be made upon current information only, with the assistance of a lawyer and an accountant. To do it any other way is to risk making a bad choice that one will later regret, especially when the first or successive tax returns relating to the LLC or corporation are filed. Though in this day and age an entertainment attorney will typically be asked to form and file a limited liability company (LLC) rather than an alternate form of entity in the context of a new media or entertainment business start-up, the choice of entity should still be carefully examined by the entertainment attorney and the business-owner at the outset – just as it should be carefully examined in any other sector or industry.

The distinctions between an S-corp, C-corp, and limited liability company (LLC) make sense when taken in the historical perspective. Look at them as the product of a kind of Darwinian evolution. In that vein, the S-corp and C-corp may someday become but extinct historical artifacts, while the LLC could become the only entity “fittest” to survive. The LLC may be the best choice of entity - if affordable, and if one is not otherwise precluded from forming it by virtue of one’s own tax profile or one’s home state’s current restrictions on LLC’s.

At some point in history it was realized that persons involved in businesses could be thereby putting their own personal assets at risk as a result. That principle still applies, by the way. If one runs an unincorporated or non-LLC business out of one’s house, that business owner may risk later losing that same house, not to mention cars, bank accounts, and other assets, to the debts, liabilities and obligations of one’s business. This is what “personal liability” is all about. A business owner wants to avoid personal liability, at all costs. The owner wants to shield his or her assets - like a house, cars, and personal bank accounts - from the risks engendered by the business. For these reasons, understandable and common to all humanity, the concept of a corporation was first formulated, many years ago. Rights deals in the context of film, music, television, and publishing, particularly, tend to be liability-evocative, and so it is not uncommon for an entertainment attorney to first focus on the structure of the business vehicle through which the deal is intended to run, before looking at the proposed deal itself.

The traditional and old-fashioned form of corporation in the U.S. still exists as of this writing - in the form of the C-corporation, named after a “Subchapter-C” in the Internal Revenue Code. When properly filed and maintained, the C-corp shields the business-owner/principal from personal liability. For example, if there is US$10,000 in the C-corp’s corporate bank account, then, in theory, only that US$10,000 amount can be used to satisfy a civil (court) judgment against the corporation - even if the President and sole shareholder of the corporation has an additional $50,000 in his/her personal bank account. A “wall”, “shield”, or “veil” is put up between the two sets of assets.

But the C-corp posed historical problems, principally that of so-called “double taxation”. Those C-corp owners filed corporate tax returns as well as individual tax returns. The unsuspecting were thereupon often disheartened to find out that they were subjected to an extra tax hit. The C-corp would be taxed on corporate earnings. In addition, the shareholders could also be taxed personally on monies withdrawn from the corporation by way of dividends. The net effect wasn’t always necessarily a 100% increase in otherwise-prevailing tax (as the somewhat-misleading phrase “double taxation” might otherwise suggest). But, on the other hand, the monies generated by the C-corp were required to filter through two “layers” of taxation as opposed to one.

In this regard, a number of business owners, including some in the entertainment business, realized that they would have oddly been better off from a tax perspective if not incorporated - a bizarre result if there ever was one. Why should the tax code and state corporation law encourage you to take unacceptable personal risk, after all? Some persons thereupon decided to simply not incorporate (or “un-incorporate”, dissolving a pre-existing corporation), and thereupon take the oft-significant risk of individual liability so as to minimize taxes. If continued, one would expect the rate of commercial litigations and personal bankruptcies to rise as result, an event which in no way would be in the public interest. Other persons instead opted out of corporate and business ownership entirely. As an entertainment attorney practicing in New York, I still encounter many companies who have yet to incorporate or form a limited liability company (LLC) – they are typically either sole proprietorships or de factopartnerships, the risks of which their principals are still assuming personal liability whether aware of it or not.

The next installment of this article will address how society responded to the growing dissatisfaction with the C-corp - namely, the creation of the S-corp and the limited liability company (LLC) thereafter.

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My entertainment law practice includes incorporations and the formation of limited liability companies (LLC’s). If you have questions about legal issues which affect your career, and require representation, please contact me:

Law Office of John J. Tormey III, Esq.

John J. Tormey III, PLLC
1324 Lexington Avenue, PMB 188
New York, NY 10128 USA
(212) 410-4142 (phone)
(212) 410-2380 (fax)
brightline@att.net
http://www.tormey.org

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Business Structures - Part II

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LLC’s, Corporations, And Other Business Structures - Part I: Written By New York Entertainment Lawyer And LLC Counsel John J. Tormey III, Esq.

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LLC’s, Corporations, And Other Business Structures - Part I: Written By New York Entertainment Lawyer And LLC Counsel John J. Tormey III, Esq.

While many artists continue to do business as individuals, there often comes a point in their career when it makes sense to ascend to the next level - to create a business, to create a company, usually in this day and age a limited liability company (LLC) or a corporation, with its own name and identity. In the fields of arts and entertainment, this process is often handled by and through an entertainment lawyer, and is often the first reason for which a new client seeks counsel. If you are an artist who has reached that point in your career, or even if you have already surpassed it and want to revisit your decision, then this article is for you. I am a New York entertainment lawyer who regularly handles corporate and LLC matters and my contact information appears below.

1. Choosing a Name For A New Business

If one is choosing a structure for a small business, there are a number of different types of business entities that can be formed. At minimum, one likely will need to assess the relative merits of the subchapter-”S” corporation (“S-corp”); the subchapter-“C” corporation (“C-corp”); and the limited liability company (“LLC”). This choice will be described in more detail, below, and in Part II and Part II of this Article. But the first issues one should address, also typically addressed with and through one’s entertainment lawyer, are the trademark considerations which may arise as a result of the chosen name for the limited liability company (LLC), corporation, or other form of company.

“Fanciful” (i.e., fictitious) new business names for a limited liability company (LLC), corporation, or other form of entity should be searched as trademarks, especially in fields like entertainment where name recognition can be so important. Entertainment lawyers will routinely search and then issue opinions on proposed trademarks of properties for clients, including trademark-searches on LLC names and corporation names themselves. Why go through this process? Because a new LLC, corporation, or other form of business needs to confirm that no other businesses have prior rights or viable claims to its newly-proposed name (or a name substantially similar to its newly-proposed name). In any event, one may be barred from registering a corporate, LLC, or other business name, if someone else has already registered the same name in the jurisdiction in which the entity-filing is intended. Moreover, if one’s business is intended to ultimately be national or international in scope, as is often the case in entertainment-related and Internet-related LLC’s and corporations, a careful trademark search conducted through one’s entertainment lawyer becomes all the more important. One doesn’t want to invest sweat and equity in a fanciful business name, only to later find out that he or she is legally prevented from using it, or is unable to stop others from infringing on the newly-chosen business name.

Principal owners of a new business do sometimes elect to incorporate or form a limited liability company (LLC) under their own legal and given name (i.e., “John Doe, Inc., or “John Doe LLC”), instead of a fanciful name, in the hopes of saving money that they would otherwise spend on a trademark search through an entertainment lawyer. But there are at least two potential drawbacks to doing so:

Incorporating or forming a limited liability company (LLC) under one’s given name often makes it more difficult to later successfully develop a separate and distinct brand identity for one’s products and services.

Incorporating or forming a limited liability company (LLC) under one’s given name (or even a variant thereof) marginally increases the chances that a court may be inclined to let a plaintiff “pierce” one’s “corporate veil” in a litigation, if the “corporate veil” issue ever arises. “Piercing” means “finding individual economic liability” on the part of the owner/principal. The plaintiff’s argument would be that a self-titled corporation (or LLC) is more likely to be the “alter ego” of its individual principal. Now, although the odds of one’s “veil” being “pierced” may not be that high - assuming that the business owner observes all other corporate or LLC filings and formalities up until that point - the risk of individual liability is still worth mentioning. After all, for many people, the avoidance of “personal liability” and the avoidance of possible “veil piercing” is the whole reason for their incorporating or forming an LLC in the first instance.

What do I mean by “personal liability”? That is probably the most important legal concept that a limited liability company (LLC) owner, corporation owner, or other form of business owner will ever seek to avoid! Please read the next installment of this article.

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My law practice as an entertainment attorney includes incorporations and the formation of limited liability companies (LLC’s), as well as work relating to trademarks and service marks. If you have questions about legal issues which affect your career, and require representation, please contact me:

Law Office of John J. Tormey III, Esq.

John J. Tormey III, PLLC

1324 Lexington Avenue, PMB 188

New York, NY 10128 USA

(212) 410-4142 (phone)

(212) 410-2380 (fax)

http://www.tormey.org/business1.htm

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Business Structures - Part I

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Publishing and Digital and Electronic Rights - Part II: Written By New York Entertainment Attorney And Publishing Lawyer John J. Tormey III, Esq.

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Publishing and Digital and Electronic Rights - Part II: Written By New York Entertainment Attorney And Publishing Lawyer John J. Tormey III, Esq.

Part I of this article discussed how phrases like the “digital right” or “electronic right” should not be assumed to be self-defining, even by and between publishing lawyers and entertainment attorneys, and how it is incumbent upon authors to reserve needed rights like the digital right or the electronic right to themselves in the context of a publishing deal. Next up, this Part II examines concepts such as the digital right or electronic right from the perspective of the publishing lawyer and entertainment attorney, and the standpoint of fairness - who between author and publisher should in fact hold on to the digital right and electronic right, once and assuming that they are first properly defined?

3. Yes, Digital Right And Electronic Right Uses Do Compete With Traditional Book Publishing Uses.

A publishing lawyer or entertainment attorney may be called upon to handle an author-side deal. A publishing lawyer or entertainment attorney may also be called upon to handle, under different factual circumstances, a publisher-side deal. So, now, a few words in defense of publishers, I suppose.

There is a perception in the author and Internet communities that publishers should not be taking broad grants of the digital right or electronic right from authors, since “digital rights and electronic rights do not compete or interfere with traditional book publishing and other media rights”.

Not true. Not anymore. For proof of that fact, ask a few veteran news desk editors whether or not they followed, or were otherwise concerned about, what appeared on the Drudge Report during the Clinton administration. Ask the CFO’s or in-house publishing lawyers of a few traditional encyclopedia companies how they feel about Wikipedia.

Incidentally, although as a publishing lawyer and entertainment attorney and unlike some others, I tend to use the phrase “electronic right” or even “digital right” in the singular number, there probably tends to be no single consensus as to what constitutes and collectively comprises the singular “electronic right” or “digital right”. There has not been sufficient time for the publishing, media, or entertainment industries to fully crystallize accurate and complete definitions of phrases like “electronic publishing”, “web publishing”, “electronic right[s]”, “e-rights”, “digital right[s]”, or “first electronic rights”.

Nevertheless, electronic media and specifically the digital right and electronic right, have already changed our history. You can be sure that they will have some effect, at a minimum, on most author’s individual publishing deals henceforth, and will be the fodder of publishing lawyer and entertainment attorney discussion for years to come. The fact is, electronic uses inherent in the digital right and the electronic right already do compete with older, more traditional uses - particularly because digital and electronic uses are cheaper and faster to deploy, and can potentially reach millions of users in less than, as Jackson Browne might say, the blink of an eye.

Commerce is increasingly relying upon the Internet and other electronic phenomena, and the linchpin of this reliance is the digital right and electronic right. After all, you are reading this article, and ostensibly gleaning some information or material from it. The Web, for example, has already put a sizable dent in dictionary and encyclopedia sales, and anyone who tells you otherwise is probably an employee in a dictionary or encyclopedia publishing company or publishing lawyer in-houser in denial of the digital and electronic right, trying to protect his/her stock options. As the recent and well-known Stephen King pilot program will attest, fiction is the next subject matter area to be affected. Many of us book lovers including publishing lawyers and entertainment attorneys don’t like to think about it, but bound hard-copy books may soon become the sole province of book collectors and publishing lawyer vanity bookcases alone. The vast majority of book readers, however, may so wholly embrace the digital right and electronic right that they soon even lose the patience to wait for their “amazon.com” mailed shipment.

Very few people who work in the publishing, media, and entertainment industries, including as amongst fair-minded publishing lawyers and entertainment attorneys, should dispute that electronic uses inherent in the digital right and electronic right can easily cannibalize the older and more traditional forms and formats. This cannibalization will only increase, not decrease, as time goes on. Again, the author should put himself/herself in the mind-set of the publisher or its in-house publishing lawyer, when having this digital right/electronic right argument with the publisher or publishing lawyer. The publisher otherwise may want to invest marketing and personnel support in the author’s work, and perhaps even pay the author an advance for the writing. In their view, though, the publisher’s publishing lawyer or entertainment attorney argues, why should they do so, and not also capture the author’s digital right or electronic right?

The last thing that the publisher or its publishing lawyer or entertainment attorney wants to do is to pay the author - and then discover that the author has “scooped” the publication with the author-reserved digital right or electronic right, stolen the publisher’s proverbial fire, and undermined the publisher’s investment in the author and the writing. The concern of the publisher and the book company’s in-house publishing lawyer or outside entertainment attorney is rational and valid. If the publisher allows the author to potentially undercut the book by exploiting author’s reserved digital right or electronic right, then the publisher is threatening the publisher’s own investment in the author and in the written work. (And on some subliminal level at least, the company’s in-house publishing lawyer also knows that this could come out of his or her future comp).

Compromises are available. One traditional compromise effected between publishing lawyers or entertainment attorneys is a so-called “hold-back” on the digital right or electronic right, whereby the author promises not to use or license-out any author-reserved digital right or electronic right for a certain period of time following publication. The author will need some leverage to get a publisher to agree to such a compromise, though. And a publishing lawyer or entertainment attorney should draft the clause - the author’s publishing lawyer or entertainment attorney, not the publisher’s counsel!

An author may think that small “portfolio” uses (e.g., tucked inside greeting cards, on an author’s personal web site, etc.) are so minor, that they will never compete with publishing rights granted for the same work, and may tell the publisher or the company’s publishing lawyer or entertainment attorney as much. The greeting card example does seem innocuous enough, but the publisher and its entertainment or publishing lawyer will likely not agree with the author regarding the author’s personal web site. It is the electronic right or the digital right that really scares publishers and their publishing lawyers and entertainment attorneys, and is perceived as threatening to their long-term investment in the author and his or her work.

The distinction to be made here is between hard-copy portfolio uses, and digital right or electronic right “portfolio uses”. The fact is that computer-uploaded text is so easy and quick to transmit, receive, and read. The posted content’s popularity could also spread like digital wildfire, so quickly - for example, if a company hyper-links to the author’s site, or if “Yahoo” bumps the author’s site up in their search-engine pecking-order. Many successes have already been made by virtue of digital right and electronic right self-publishing, and more will follow. Traditional (book) publishers and their publishing lawyers and entertainment attorneys already realize this fact. Accordingly, traditional book publishers and their counsel also realize that once they acknowledge an author’s reservation of a “self-promotion” digital right or electronic right, they risk losing control of a potential wildfire dissemination method. Again, this would put the publisher’s investment at risk - but smart business people and companies and the publishing lawyers and entertainment attorneys that represent them, don’t put their own investments at risk.

4. The Party To The Contract That Has The Better And More Immediate Means and Resources To Exploit The Electronic Rights, Should Be The One Who Takes The Electronic Rights.

Here is the final point. If a contracting party has no means and resources to exploit a digital right or electronic right or a given bundle of them, then that same party has no business taking (or reserving to themselves) those same digital or electronic rights by contract or even negotiating such a position by and between publishing lawyers or entertainment attorneys. To analogize, if I am a screenwriter who options or sells my script to the Acme Production Company, LLC, through an entertainment lawyer, how should I react if Acme asks me to specifically and contractually grant them “theme park rights” in my literary property in the negotiation between the entertainment attorneys? (Don’t laugh - this practice is now very prevalent in film and entertainment deals).

Well, if Acme doesn’t have its own theme park, I (or my entertainment attorney) now have a powerful argument for reserving the theme park rights to myself instead. “Hey, Acme”, I (or my entertainment attorney) say, “... how do you have the unmitigated gall to ask me for my theme park rights, when you don’t even have the ability to exploit or use them yourself? You don’t even have a theme park!” I (or my entertainment attorney) then make it clear to Acme that I don’t intend to be giving them any trophies that they can put on a shelf to collect proverbial dust.

The same argument can work in the publishing context, particularly as argued between publishing lawyers and entertainment attorneys, regarding the digital right or the electronic right. The author can proverbially cross-examine the publisher (or try to cross-examine the company’s publishing lawyer or entertainment attorney) as to what successful past uses they have made of other author’s digital rights or electronic rights across multiple books. The company President may fudge the answer, but the publishing lawyer or entertainment attorney representing the publisher must answer truthfully. (One good reason to negotiate through counsel).

If the true answer to the question is “none”, then the author can use the “trophy” argument stated above. If the true answer is, alternatively, “some”, then the author has a negotiating opportunity to compel the publisher and its publishing lawyer and entertainment attorney to contractually commit to digitally and electronically publish the author’s work, too. The author can argue: “I won’t grant you the digital right or electronic right unless you, publisher, contractually commit in advance as to how specifically you will exploit them, and how much money you will spend in their development and marketing”. The author or the author’s publishing lawyer or entertainment attorney can then carve those electronic right and digital right commitments right directly into the contract, if the author has the leverage to do so. Again, one should not try this at home - but instead use a publishing lawyer or entertainment attorney.

Needless to say, once the author makes the publisher commit, presumably through publishing lawyer or entertainment attorney counsel, to a development budget or other marketing or “release” commitment for the digital right or the electronic right, then both the author and the publisher might thereby also have some basis for numerical valuation of the rights themselves. And, it is an entirely reasonable argument for an author or author’s publishing lawyer or entertainment attorney to say to a publisher that: “I will license/sell you the following listed digital right[s] or electronic right[s] if you pay me the following additional amounts for them:_____________________. And in the blank space, the rights can be listed like menu options as they have been broken out in Item #1 above, each to which separate dollar values – that is, price-tags - are now assigned.

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My media law practice as a publishing lawyer and entertainment attorney includes the drafting, editing, negotiation, and closure of agreements including digital and electronic rights matters as they may arise therein, as well as in the fields of film, music, television, Internet, and other media and art forms. If you have questions about legal issues which affect your career, and require representation, please contact me:

Law Office of John J. Tormey III, Esq.

John J. Tormey III, PLLC

1324 Lexington Avenue, PMB 188

New York, NY 10128 USA

(212) 410-4142 (phone)

(212) 410-2380 (fax)

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Publishing and Digital and Electronic Rights - Part II

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Tuesday, January 1, 2013

Independent Contractors vs. Employees - Part II: Written By New York Entertainment Lawyer And Employment Attorney John J. Tormey III, Esq.

http://www.tormey.org/contractors2.htm

Law Office of John J. Tormey III, Esq. – Entertainment Lawyer, Entertainment Attorney

John J. Tormey III, PLLC
1324 Lexington Avenue, PMB 188
New York, NY 10128

USA

(212) 410-4142 (phone)
(212) 410-2380 (fax)
brightline@att.net
http://www.tormey.org

Independent Contractors vs. Employees - Part II: Written By New YorkEntertainment Lawyer And Employment Attorney John J. Tormey III, Esq.

Part I of this article discussed the distinction between hiring “independent contractors” versus “employees”, and some of the consequences thereby resulting. To give the hypothetical some real-life relevance to an entertainment lawyer like myself, how could, for example, a recording studio or a film production characterize its workers as the former (independent contractors), rather than the latter (employees)? If the Internal Revenue Service (IRS) or applicable Department of Labor (DOL) challenges the characterization of the workers as independent contractors as opposed to employees, is there anything that the film production or recording studio could have done in retrospect to seek to prevent or withstand the challenge – aside from calling its entertainment lawyer at the point of hire and asking the entertainment lawyer, that is?

A signed written agreement between the music or film studio and each worker, which among other things characterized each of them as an “independent contractor”, prepared by the entertainment lawyer, might have been helpful. But do not believe for a minute that agencies like the DOL and the IRS will view that self-serving contractual “independent contractor” vs. employee characterization as fully-dispositive, even when drafted by the entertainment lawyer. These agencies decidedly will not. Rather, the actual facts and circumstances surrounding the worker’s services must give additional support to the contractual characterization of an independent contractor as opposed to an employee. Moreover, things change. The facts and circumstances of work in the latter year may differ from what the entertainment lawyer’s drafting predicted them to be in the former year’s signed contract. See, e.g.:

http://www.irs.gov/businesses/small/article/0,,id=99921,00.html

In other words, the hiring company in the entertainment field should, at minimum, require all its independent contractor hires to sign independent contractor agreements prepared by the company’s entertainment lawyer, that among other things expressly disclaim an employee-employer relationship. But the smart company also further monitors the factual circumstances of that work relationship post-signature, to make sure that those facts continually support the contract and the “independent contractor” vs. employee characterization. Most independent contractor relationships themselves, as well as other forms of relationships, change over time and do not remain static. The entertainment lawyer can amend the pre-existing signed contract at the client’s further request.

This article will not rehash all factors in the past IRS “checklists” here, particularly because the governmental definition of independent contractor vs. employee continues to evolve and may have changed by the time you read this article. The hiring party should update itself on the IRS and DOL “independent contractor vs. employee” definitions anyway: (1) so to be sure to consider factors applicable to its own state and jurisdiction, and (2) so as to work off of the most updated definition Obviously it is wise to consult with one’s entertainment lawyer, accountant, and payroll company – particularly the latter two - before one rolls out an entertainment company payroll plan for independent contractors, employees or otherwise. Indeed, prospective advice should be obtained before the hiring party even make the hires. But below are some of the checklist factors which as an entertainment lawyer representing the hiring party I have found to have been given some significant weight in the context of past DOL actions. Query whether or not the hiring party will be able to “flip” any of them to its own favor and advantage, if the hiring party is ever challenged on its own characterizations of workers as independent contractors as opposed to employees:

A. Nature Of Services.

The entertainment lawyer first inquires of the hiring party, “What exact services or types of services does the claimed independent contractor worker perform?” If the hiring party is held to exercise or reserve the right to exercise sufficient supervision, direction, and control over the worker’s services, an “employer-employee” relationship may be established, even if such relationship was never intended by the hiring party thinking he or she was instead hiring an independent contractor rather than an employee. To this extent, a written job description in the agreement drafted by the entertainment lawyer suggesting that the worker toils independently, may support the company’s assertion of an “independent contractor” vs. an employee-employer relationship. But the written job description must be an accurate reflection of the facts, and must stay accurate going forward in time which is even more difficult. In any event the written job description scribed by the business owner’s entertainment lawyer, is not dispositive on “independent contractor vs. employee” question. Moreover, most media and entertainment hiring parties are unwilling to relinquish supervision, direction, and control over even its independent contractor hires, as a practical matter - much less instruct their entertainment lawyer do so in writing. Therefore, this “nature of services” item is a difficult checklist factor for the hiring party to “flip” to its own advantage in favor of an independent contractor adjudication as opposed to employee determination.

B. In Business For Himself/Herself.

The entertainment lawyer next asks, if this worker that the hiring party wishes to characterize as an independent contractor as opposed to employee, in business for himself or herself. For example, does this worker run his or her own business or corporation, or work through a “loan-out” entity? Does the worker have an independent consulting business? Does the worker advertise any business, or have the trappings or indicia of any self-standing business? If the worker is in business for himself or herself – and particularly if the worker can be documented by the hiring party’s entertainment lawyer to have been such, well-prior to the making of the hire in question – then that would be a strong suggestion that the worker is an independent contractor rather than an employee. In fact, the party wanting to hire a worker can choose to limit its hires only to those contractors that are already separately incorporated or functioning through a limited liability company, which the entertainment lawyer can normally confirm on-paper through the use of public-record databases. This “business for himself/herself” item is therefore a factor that can be flipped to the hiring party’s advantage in favor of an independent contractor determination over an employee characterization, if set-up carefully in advance, and a step in which it may be critical to involve the entertainment lawyer.

C. Invoicing Or Billing For Services.

Asks the entertainment lawyer to the hiring party, “Does the claimed independent contractor worker submit a bill or invoice for services?”. Most employees don’t. Most independent contractors do – or, should. Again, this is a factor that the hiring party can flip to its advantage in favor of an independent contractor characterization as opposed to an employee determination, if assessed and set-up carefully in advance, and a step with which the entertainment lawyer can help by assisting the documentation process. The party wanting to hire a worker can choose to limit its hires only to those claimed independent contractors that furnish or are willing to furnish periodic invoices. An employee would be unlikely to do so, and unlikely to be asked to do so. This “invoicing” factor will likely not be dispositive by itself, but could be helpful to the hiring party to support an independent contractor determination over an employee ruling.

D. Where, When And How Long.

The entertainment lawyer then asks the hiring party, “Is this worker claimed to be an independent contractor rater than an employee, told where to work each day? Or, when to work each day? Or, how long or how many hours to work each day?” The entertainment lawyer observes that a worker toiling off-premises is more likely to be characterized as an “independent contractor” rather than an employee. A worker on his or her own schedule is more likely to be characterized as an “independent contractor” rather than an employee. And, a worker who chooses his or her daily hour expenditure is more likely to be characterized as an “independent contractor” rather than an employee. But again, most hiring parties are unwilling to relinquish that kind of supervision, direction, and control over their hires much less instruct their entertainment lawyer do so in writing – be they employees or even independent contractors.

E. Review Of Work.

“Regarding the worker sought to be classified as an independent contractor rather than an employee”, asks the entertainment lawyer, “is this worker’s effort subject to review by anyone – particularly annual reviews? Is the worker’s effort reviewed as ‘satisfactory’ or ‘unsatisfactory’”? The more discretion of review that the company exercises, the more likely that this worker will be characterized as an “employee” rather than an independent contractor. One presumption would be that the remedy for a bad independent contractor would be simply to terminate rather than to review, which the hiring party might do through his or her counsel, or just on his or her own. But again, most hiring parties are unwilling to relinquish that kind of supervision, direction, and control over their hires, much less instruct their entertainment lawyer do so in writing – be they employees or even independent contractors.

F. Refusal Of Work Assignments.

This worker that the hiring party calls an independent contractor rather than an employee – the entertainment lawyer muses - can this worker refuse work assignments? Does this worker in fact refuse any work assignments? If so, what happens as a result? Though not an absolute, a worker entitled to refuse assignments is at least somewhat more likely to be characterized as an “independent contractor” rather than an employee. But again, most hiring parties are unwilling to relinquish that kind of supervision, direction, and control over their hires, much less instruct their entertainment lawyer do so in writing – be they employees or even independent contractors.

G. Tools And Office Space.

As for this worker that the hiring party claims to be an independent contractor as opposed to an employee, the entertainment lawyer inquires - what equipment or other tools or objects does this worker supply or bring to the job site by himself or herself, if any? Who provides the office space, if any? The more equipment and tools that the worker brings to the work site, the more likely it is that the worker will be characterized as an “independent contractor” rather than as an employee. If, on the other hand, the company provides an office, tools and equipment, the relationship looks more like an employee-employer employment relationship. In this day and age of laptop and telecommuting, we will more frequently see hiring parties try to flip this variable to their advantage in favor of an independent contractor determination as opposed to an employee determination. And this factor will not be ignored by the governmental authorities adjudicating the issue, or entertainment lawyers drafting the prospective agreements, either.

Again, please do not rely upon the excerpted list of “independent contractor vs. employee” factors above - it is only illustrative in the context of media and entertainment company hiring patterns in the past - and different tribunals may adjudicate different results. Any determination that a hiring party in the entertainment field makes about a worker’s status should be done only upon review with one’s own entertainment lawyer, one’s tax accountant, and one’s payroll company – particularly the latter two. The most important thing to remember is that the rule of “ipse dixit” does not apply to the “independent contractor vs. employee” question. In other words, just because the hiring party calls someone an “independent contractor” as opposed to an employee, does not make them so! (“Ipse dixit” is Latin for “he himself said so”).

There are structural modifications that the hiring party can make to the hiring relationship, as well as entertainment lawyer-drafted text, that will increase its chances of successfully claiming the worker to be an independent contractor rather than an employee. But there are seldom any absolutes in this regard. Finally, keep in mind that there is a real “Catch 22” to the “independent contractor v. employee” characterization. The entertainment lawyer will advise the hiring party that the hiring party must truly be willing to part with a substantial amount of supervision, direction, and control over a worker - and must in fact do so - in exchange for the privilege of paying them like an independent contractor rather than an employee. There is only a very limited extent to which a hiring party may be able to contract around this problem.

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My law practice as an entertainment attorney includes state and federal employment law matters relating to independent contractors and employees and other human resource matters as they arise in the fields of music, film, publishing, television, Internet, and other media and industries. If you have questions about legal issues which affect your career, and require representation, please contact me:

Law Office of John J. Tormey III, Esq.

John J. Tormey III, PLLC
1324 Lexington Avenue, PMB 188
New York, NY 10128

USA

(212) 410-4142 (phone)
(212) 410-2380 (fax)
brightline@att.net
http://www.tormey.org

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Independent Contractors vs. Employees - Part II

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http://www.tormey.org/contractors2.htm

Independent Contractors vs. Employees - Part I: Written By New York Entertainment Lawyer And Employment Attorney John J. Tormey III, Esq.

http://www.tormey.org/contractors1.htm

Law Office of John J. Tormey III, Esq. – Entertainment Lawyer, Entertainment Attorney

John J. Tormey III, PLLC

1324 Lexington Avenue, PMB 188

New York, NY 10128 USA

(212) 410-4142 (phone)

(212) 410-2380 (fax)

Independent Contractors vs. Employees - Part I: Written By New York Entertainment Lawyer And Employment Attorney John J. Tormey III, Esq.

As an entertainment attorney practicing in New York, I see people and companies struggling to address the definition of independent contractor vs. employee, frequently. Anyone who hires workers or is thinking of doing so, in New York or elsewhere in the United States, should be aware of the following. Before hiring anyone, it is critical that one carefully determines with one’s accountant and entertainment attorney or other counsel whether the new hire is to be an “employee”; or, alternatively, an “independent contractor”. The terms have legal and financial import; they are mutually exclusive; and one should never use them interchangeably.

The distinction between the two types of workers is important because, among other things, it is usually more expensive and more administratively inconvenient to hire and pay “employees” as opposed to “independent contractors”. On the other hand, few persons or companies that hire workers are truly willing to relinquish control over their hires, to a sufficient degree to allow those workers to accurately be characterized as “independent contractors” as opposed to employees. As an entertainment attorney, I frequently encounter business projects of short duration such as a single film shoot, a single album recording, or a single pilot shoot. The question of “independent contractor vs. employee” therefore arises most often in the context of media and entertainment projects of multi-week or multi-month duration. Though the two constructs, “independent contractor” and “employee”, are not necessarily self-defining, the word “independent” is used for a reason, and truly translates to “loss of hiring-party control”. I’ll explain below.

The U.S. Internal Revenue Service in (former) “IRS Publication 937” identified 20 “checklist” factors that it considered when determining whether or not an individual worker is an “independent contractor” as opposed to an “employee”. The litmus test has apparently since evolved somewhat. See, e.g.:

http://www.irs.gov/businesses/small/article/0,,id=99921,00.html

The hiring party should review the most updated version of the IRS criteria prior to any hires, and it is probably more important to do so with one’s payroll company and tax accountant, than one’s entertainment attorney. The hiring party should also be aware that the IRS is not the only institution with whom to be concerned regarding the all-important “independent contractor vs. employee” determination. Other governmental agencies have a stake in preventing mischaracterization of workers as independent contractors, too.

For example, the state Department of Labor (state “DOL”) in one’s own home state may apply its own checklist of criteria to distinguish independent contractors vs. employees. One needs to be aware that there is a federal [US] Department of Labor as well as a state Department of Labor. A hiring party needs to comply with the requirements of both. In a perfect world, there should be consistency between the respective “checklists” of the IRS and the applicable DOL, as well as consistency between each agency’s interpretation of those checklists. However, your entertainment attorney and tax accountant will opine to you that the world isn’t perfect, and those interpretations could differ as to what constitutes an independent contractor versus an employee. Therefore, one should be aware as to how a local state DOL characterizes the two different types of workers, too - if different than the IRS characterization. Additionally, from an enforcement perspective, the DOL could challenge a hiring business’ characterization of its workers as “independent contractors” vs. employees, without the IRS joining in on the contest. The IRS and the DOL are separate agencies, although there is a suggestion that they will more thoroughly share electronic data with each other on field data and this issue in the near future.

The “independent contractor” determination can be the proverbial unstable apple cart, easily tipped. An employer, as most know, should withhold taxes from an employee’s pay, and make unemployment contributions with respect to those employees, among other things. Hiring companies in the entertainment field, for example, even if they already have an entertainment attorney and a tax accountant, still often wisely use a “payroll company” to administrate payment obligations to workers, so as not to transgress. The cost of a hiring party mischaracterizing an employee as an independent contractor instead, could be high. If ever in doubt, payroll companies and accountants should skew cautious and conservative when making the distinction for their clients in favor of employees – and the entertainment attorney will usually tell the client to listen to his or her payroll company and tax accountant.

However, let’s say that a hypothetical music recording studio, or film production company, for that matter, hires 20 workers, characterizes them all (in reasonably good faith) as “independent contractors”, but uses no payroll company, tax accountant, or entertainment attorney initially. Let’s further assume that the film production or music studio pays no unemployment insurance or workers compensation contributions with respect to any of the hires, and does not withhold taxes from their paychecks. Then, one independent contractor worker is terminated, and vindictively files with the local state DOL for unemployment compensation, claiming to be a fired “employee” instead. Even after phoning the entertainment attorney and tax accountant to enlist their retroactive help, it may now be too late. The recording studio or film production could now find itself faced with a state DOL that characterizes not just the one claimant-worker - but all 20 workers - as “employees” as opposed to “independent contractors”. The apple cart tips. The camel’s nose is now in the tent.

The recording studio or film company may be required to litigate administrative hearings on the independent contractor v. employee question, and may thereupon be assessed retroactive unemployment insurance contributions, interest, and penalties with respect to the workers that “should have been paid as employees”. Other actions may also follow, such as a workers compensation audit, and perhaps even findings by the IRS and local tax authorities with respect to claimed monies that “should have been withheld” from the “employees” pay. The argument of, “But I told them they were independent contractors” may be considered a mere ipse dixit proposition and might not wash with the government. The entertainment attorney or the business owner can state the case to the authorities that short-term hires are the bread-and-butter of the local entertainment economy in the jurisdiction and so should be rewarded and not punished, but the adjudicating authorities may not accept that distinction between entertainment and non-entertainment sectors. Their only care may be to decrease the overall number of independent contractors and increase the total number of employees across all industries and sectors.

Could this nightmare have been avoided by the recording studio or film production company, through documentation, prospective use of its entertainment attorney, or otherwise? The answer is “Maybe yes, maybe no”. Please see Part II of this article for a further discussion.

Click the “Articles” button at:

to return to the main Articles page.

My entertainment law practice includes state and federal employment law matters relating to independent contractors and employees and other human resource matters as they arise in the fields of film, music, television, publishing, Internet, and other media and industries. If you have questions about legal issues which affect your career, and require representation, please contact me:

Law Office of John J. Tormey III, Esq.

John J. Tormey III, PLLC

1324 Lexington Avenue, PMB 188

New York, NY 10128 USA

(212) 410-4142 (phone)

(212) 410-2380 (fax)