Cameo Clips

AGENCY AGREEMENTS/POST-TERM COMMISSIONS

The U.S. District Court for the Southern District of New York ruled that artists were precluded from raising as affirmative defenses that the plaintiff booking agency's firing of two of its key persons who handled the artists' account also terminated the artists' agreements with the agency ' and thus the artists' obligations to pay post-term commissions to the agency. Columbia Artists Management LLC (CAMI) v. Alvarez, 08 Civ. 11254(LBS). CAMI sought post-term commissions from opera singers Marcelo Alvarez, Richard Margison and Ramon Vargas. The artists had left CAMI in February 2005, after CAMI reps Bruce Zemsky and Alan Green were fired and formed their own company. CAMI sued the artists to obtain post-term commissions for engagements secured through CAMI before, but performed after, February 2005.

District Judge Leonard B. Sand first denied CAMI's motion for summary judgment on the ground that a genuine issue of material fact existed regarding the impact of a three-month, termination notice requirement and the post-termination commission provision in CAMI's agreements with the artists. Judge Sand also found genuine issues of material fact existed “as to (1) whether it is a practice within the opera industry for artists to pay commissions for performances booked but not performed prior to a manager's termination, and (2) Defendants' awareness of this practice.”

But the district judge also ruled: “Defendants are precluded from offering at trial the affirmative defenses that Plaintiff terminated the contract[s] by firing Zemsky and Green and was therefore not entitled to post-termination commissions due to either breach of contract or failure to satisfy a [three-month termination notice] condition precedent.” According to the court: “Here, the contracts imposed Defendants' obligation to pay commissions '[f]or all engagements which you accept,' and did not condition payment of those commissions on Plaintiff's continued retention as Defendants' manager. In other words, Defendants naturally agreed to compensate Plaintiff for the work it performed while the agreement was in effect. Even if Plaintiffs['] dismissal of Zemsky and Green constituted a breach, that breach took place after Plaintiff had already performed under the contract and Defendants' obligation to compensate Plaintiff for its performance had already attached. The alleged obligation to pay commissions on performances secured before any putative breach is 'distinct and independent' from any obligations or remedies arising from that breach '. [T]he claim that Zemsky and Green's termination cancelled any possible obligation of Defendants to pay post-termination commissions is invalid as a matter of law.”

The U.S. District Court for the Southern District of New York awarded attorney fees, though reduced, to former Violent Femmes guitarist Gordon Gano in a suit brought against him by Brian Ritchie, former bassist of the defunct band. Ritchie v. Gano, 07 Civ. 7269(VM). Ritchie alleged copyright, federal trademark and several state law claims. Gano sought attorney fees after he and Ritchie agreed to a dismissal of the case. District Judge Victor Marrero decided “that the rates charged by Gano's attorneys ' $475 to $525 per hour for two partners with over [20] years of experience ' are reasonable in light of the rates normally charged for such work in this district.” But Judge Marrero also found that: “[A]n expenditure of over 800 hours of attorney time, as submitted by Gano, is unreasonably high. Additionally, the Court finds that Gano lists certain attorney hours in a manner that makes it impossible for the Court to determine whether such work was actually focused on, or inextricably linked to, the copyright and trademark claims, or whether Gano wrongly or excessively attributed those hours to work on the copyright and trademark claims. Because of the vagueness of many of the entries, it is unclear whether all of the hours Gano reports as related to the copyright and trademark claims were actually spent working only on these claims. Because of this ambiguity, the Court reduces Gano's award of attorneys' fees for this claim by forty percent, yielding an award of $187,792.”

AGENCY AGREEMENTS/POST-TERM COMMISSIONS

The U.S. District Court for the Southern District of New York ruled that artists were precluded from raising as affirmative defenses that the plaintiff booking agency's firing of two of its key persons who handled the artists' account also terminated the artists' agreements with the agency ' and thus the artists' obligations to pay post-term commissions to the agency. Columbia Artists Management LLC (CAMI) v. Alvarez, 08 Civ. 11254(LBS). CAMI sought post-term commissions from opera singers Marcelo Alvarez, Richard Margison and Ramon Vargas. The artists had left CAMI in February 2005, after CAMI reps Bruce Zemsky and Alan Green were fired and formed their own company. CAMI sued the artists to obtain post-term commissions for engagements secured through CAMI before, but performed after, February 2005.

District Judge Leonard B. Sand first denied CAMI's motion for summary judgment on the ground that a genuine issue of material fact existed regarding the impact of a three-month, termination notice requirement and the post-termination commission provision in CAMI's agreements with the artists. Judge Sand also found genuine issues of material fact existed “as to (1) whether it is a practice within the opera industry for artists to pay commissions for performances booked but not performed prior to a manager's termination, and (2) Defendants' awareness of this practice.”

But the district judge also ruled: “Defendants are precluded from offering at trial the affirmative defenses that Plaintiff terminated the contract[s] by firing Zemsky and Green and was therefore not entitled to post-termination commissions due to either breach of contract or failure to satisfy a [three-month termination notice] condition precedent.” According to the court: “Here, the contracts imposed Defendants' obligation to pay commissions '[f]or all engagements which you accept,' and did not condition payment of those commissions on Plaintiff's continued retention as Defendants' manager. In other words, Defendants naturally agreed to compensate Plaintiff for the work it performed while the agreement was in effect. Even if Plaintiffs['] dismissal of Zemsky and Green constituted a breach, that breach took place after Plaintiff had already performed under the contract and Defendants' obligation to compensate Plaintiff for its performance had already attached. The alleged obligation to pay commissions on performances secured before any putative breach is 'distinct and independent' from any obligations or remedies arising from that breach '. [T]he claim that Zemsky and Green's termination cancelled any possible obligation of Defendants to pay post-termination commissions is invalid as a matter of law.”

The U.S. District Court for the Southern District of New York awarded attorney fees, though reduced, to former Violent Femmes guitarist Gordon Gano in a suit brought against him by Brian Ritchie, former bassist of the defunct band. Ritchie v. Gano, 07 Civ. 7269(VM). Ritchie alleged copyright, federal trademark and several state law claims. Gano sought attorney fees after he and Ritchie agreed to a dismissal of the case. District Judge Victor Marrero decided “that the rates charged by Gano's attorneys ' $475 to $525 per hour for two partners with over [20] years of experience ' are reasonable in light of the rates normally charged for such work in this district.” But Judge Marrero also found that: “[A]n expenditure of over 800 hours of attorney time, as submitted by Gano, is unreasonably high. Additionally, the Court finds that Gano lists certain attorney hours in a manner that makes it impossible for the Court to determine whether such work was actually focused on, or inextricably linked to, the copyright and trademark claims, or whether Gano wrongly or excessively attributed those hours to work on the copyright and trademark claims. Because of the vagueness of many of the entries, it is unclear whether all of the hours Gano reports as related to the copyright and trademark claims were actually spent working only on these claims. Because of this ambiguity, the Court reduces Gano's award of attorneys' fees for this claim by forty percent, yielding an award of $187,792.”