Sometimes, things just go sideways.
Despite the best intentions of your organization’s Board, Officers, staff, and key volunteers, one misstep can threaten the entire mission. Whether there are allegations of financial malfeasance, inappropriate conduct, insufficient entity formalities, or some other variant, the Board of Directors must take quick action to decide if an internal investigation is warranted.
Once you know you need independent inquiry, who should you call to help you?
At the very least, your internal investigator must be unbiased. Ideally, an investigation is conducted by outside counsel or a special committee. And, your choice of investigators is an important as what they uncover.
In order to be productive and get meaningful results, your investigator should:
- Understand the culture of your organization.
- Commit to interviewing the correct parties, including individuals who were involved with the organization at the time period under investigation.
- Be well versed in how to conduct an investigation and how to evaluate credibility.
–(Remember, this is NOT a case of “he said/she said, so we’ll never know. Part of the investigator’s job is to make credibility assessments).
–Your investigator should know how to rely on asking open ended questions.
–Your investigator should have a delicate approach to asking questions that telegraph the subject or intention of the investigation, and should know when to ask them.
- Be adept at conducting interviews with emotional witnesses.
- NEVER use the services of an investigator unless they are licensed or subject to a licensing exemption. In Colorado, employees, attorneys, and CPAs for the entity may conduct an investigation under an exemption. Other exemptions do exist. But, for the most part, your wise and level-headed HOA President is not an appropriate person to conduct the investigation without an independent relationship to the organization.
- Always work with an investigator who understands the importance of defining the scope and purpose of the investigation with the board at the outset. In particular, you should understand what standards of proof will apply to the findings and recommendations. Miscommunications on scope will not only waste time and energy, but may result in a contaminated investigation. Once interviews have been conducted, it is difficult to revisit witnesses and receive answers that are free from outside influence or revisionist reflection.
- Always work with an investigator who has the expertise to identify and recommend ways that your organization can strengthen its policies, procedures, and formal documentation. The most productive investigations will help you minimize risks in the future.
Once your investigator has completed the investigation, the Board of Directors should use the findings and recommendations to come to a good faith, well informed decision about how to respond. Only independent Directors, those who are not implicated in the underlying issue, should make the decision. As always, Directors have a duty to act in the best interests of the organization. Hiring a competent investigator will not only help the organization reach a reasoned decision, but will protect the Board from individual liability.
If your business or nonprofit organization needs assistance with an internal investigation, contact Caroline Kert, Esq. at 303-763-1615 or email@example.com.
One of our arts and entertainment attorneys, Caroline Kert, was recently asked to address a group of local artists and arts organizations regarding Protest Art. She covers protester rights as well as the boundaries of free expression. This is a must watch for artists and dissenters in the current political climate. Contact Caroline Kert at firstname.lastname@example.org for more information.
You can watch the full presentation here:
Don’t let your dad who wanted you to major in business administration tell you otherwise – In today’s economy, making a living as an artist is probably more viable than it has ever been before.
Many individuals (including your dad) are under the impression that the only way to succeed in the arts is to become a superstar. Media representations tend to present the arts as an all-or-nothing proposition, with the spotlight only given to the celebrity successes.
However, a viable career in the arts can encompass a broad range of options for those of us who aren’t necessarily nobodies, but whose lives aren’t fodder for PerezHilton.com either. The arts are not a competition, and you don’t need to be a superstar to make a living doing what you love!
Here are some key points, some legal but many non-legal, we try to relay to our artist and creative entrepreneur clients:
- Identify and Maximize Various Revenue Streams
It can’t be denied that those working in creative professions often lack traditional benefits and job security. There is nothing in this post that offers solutions towards finding a tradition 9-to-5-with-health-insurance job in the arts. Instead, those who are able to pursue multiple sources of income and become comfortable (or even thrive) with a lifestyle with no promises of a paycheck can find career sustainability.
Experimenting with a variety of moneymaking options allows artists to discover which methods are the most lucrative. Here in Colorado, we unfortunately do not have a long-established art collector scene like on the coasts. However, traditional gallery art sales and online art sales may be complemented by speaking gigs, public art commissions, publishing, teaching, commission projects, crowdfunding and grants.
In other words, we believe it is a good investment for artists just beginning to establish their careers (but also for those looking to give a boost to current careers) to participate a little in a lot. If one revenue stream (for example, gallery sales) is not doing so well, you ideally should have multiple other sources of income to fall back on. The downside is that your schedule may be very full. The potential upside after several years of pursuing all options is that you’ve found something that really works for your medium, personality, lifestyle and business model, and you have found financial security.
- Be Weird
Being “weird” could be a bad idea at a lot of jobs, but it is definitely an asset in the creative professions. To sell art or become known as an artist, it helps to grab your audiences’ attention by creating works that are distinctly different from what is already out there.
Moreover, artists who devote time beyond their actual artwork to create a unique brand around themselves will likely have more opportunities to engage in various projects and receive more invitations to work, speak, sell and teach (all towards, see above, diversifying income streams!). Individuals who succeed in branding themselves aren’t necessarily the most talented and brilliant artists out there, but they do produce more bankable work. Navigating the fine line of being your authentic self yet making an impression on those around you can be tricky, but finding that balance can yield profitable results.
- Be Professional
Passion, talent and weirdness aren’t the only qualifications for becoming a successful professional artist. A creative individual pursuing a career in the arts should also be able to successfully navigate the business side of their own enterprise.
For example, grants can be a good source of income for an artist or arts organization. There are even some arts grants where, if you’ve received it once and demonstrated you were able to meet the objectives of the grant program, you can receive the same grant several years in a row.
However, groups that award such grants want to ensure their money is going to be used appropriately. They require clear and straightforward descriptions of how the grant funds will be used, and they also need assurances that the funds will be properly accounted for once received. This kind of due diligence is legally required for most of the foundations, endowments, 501(c)(3)s, and other organizations who are in the business of making arts grants.
If you never know the balance of your bank account or choose a casual attitude towards the financial aspects of your business, this is trouble! It is critical to establish, and continually maintain, a high level of professionalism in your arts business. Certain actions that can go a long way include:
- Setting yourself up as a legal business entity with a separate business tax ID (an EIN);
- Having separate business bank accounts;
- Staying on top of deadlines and document requests from grant organizations, vendors, and other collaborators or colleagues;
- Recognizing and protecting your intellectual assets (copyrights and trademarks);
- Having a good professional services contract when you are hired for projects, shows, etc.;
- Maintaining an active and professional online presence (social media and your website); and
- Sustaining a solid network of mentors, colleagues, and professional advisors such as accountants and attorneys who are on your team as you navigate your career in the arts.
I practice arts & entertainment law in Colorado, have co-created a local cooperative artistic space, volunteer services to artists, and socialize in arts and Burning Man communities. I live and breathe arts in community.
So, when I heard about the tragedy in Oakland’s GhostShip, I was hit particularly hard. I didn’t know any of the victims directly, but many of my friends did. My mind quickly turned to our Colorado DIY spaces—what were they feeling, what were they scrambling to correct in their safety approaches, and how could I help? Not surprisingly, I found that artists in Colorado are grieving and also fighting to keep their spaces up to code in the face of increased interest from safety agencies.
At a recent gathering of artists running DIY spaces, I heard a lot of confusion and uncertainty about the lay of the legal landscape. Watch this space over the next weeks as I pen a blog series that answers questions many spaces are having and elaborates on top issues for DIY creative spaces.
All situations are case specific, so you may need further guidance given your particular situation.
Verifying Your Zoning Status in Denver
In Denver, the public online records provide a nice link to the basic information you will need to feel more assured about your zoning status. Remember that public government websites are never guaranteed to be 100% up to date, but this should give you a reasonable place to start in confirming that your space does not have unresolved zoning issues.
1) Visit the online real estate records page:
2) Hit “Advanced Search”
3) Enter your address information
4) There will be a hyperlink on your building’s address. Click on the address to go to the detail page.
5) The website will take you to the “Property Summary” tab. Click the Tab to view “Property Map”. This is where you will find all sorts of juicy information about your zoning allowances.
6) Note all special designations for your property, including Enterprise Zones, Historic Landmark status, and zone district information. I recommend making a written note for easy reference as you look at the Zoning Code. You may be part of an “overlay district”, which means that two sets of requirements apply to you—make sure to check the requirements for any and all references made in this section.
7) The page will link to the version of the Denver Building Code that relates to your property. Click through to that document in the “Code Version” line.
Check the Code and How It Applies to Your Building
Understanding the Zoning Code is complicated and technical. This makes it difficult to maintain exact compliance and leaves property owners open to differing interpretations and potential violations, even discrepancies within the same department. Keep your focus on trying to get reasonable compliance with the most that you can. There is always a chance that the city will show up and point out a non-compliance issue that you haven’t thought of. Your attempts to get it right in the other instances will help you establish good faith and some negotiating room with the city if you need it.
Click through to the version of the Zoning Code that applies to your property.
a) Look at Articles 1 and 2 to get an overview of how to use the manual.
b) Look for the Article that matches each of the zoning assignments given to your building.
c) Find the Chapter on your specific zoning assignment and read.
1. You will find information on what types of buildings are allowable and offset distances from the sidewalks (this won’t really be anything you can control or worry about). What will be important is to Check the Uses Allowable for Your Type of Building.
2. You do want to look at any requirements that apply to free-standing structures you have in your space (sheds, lockers, garages…).
3. Look at the tables that apply to your type of zoning in each section of the chapter for the requirements that you need to follow. This is where you can start to pull together a list of items to prioritize as you come into compliance. Or, hopefully, you won’t need to make any improvements at all.
4. Pay particular attention to parking requirements and the USE TABLES. You should verify that the way you are using the property is allowable. And, you will want to know if you are required to get a permit for any specific types of use. For example, if you are zoned for mixed industrial use and live/work, there are limitations on parking and biking for which you will need approval.
d) Look at Article 10 for rules that apply to everyone.
e) Look at Article 11 for definitions and rules that apply to your specific uses.
If you determine that there may be compliance issues, discuss with the building owner. Your landlord may know something you don’t regarding prior approvals from the city or being grandfathered in for certain items. And, your landlord may be willing to help you with expenses to make things right.
Note that these instructions only apply to the Zoning Code. You will also need to be in compliance with the Building Code. Check this blog later for highlights from the International Building Code, which is used as a model law for municipalities.
If you don’t live in Denver, your city may also include zoning information as part of the public record. Research what information is available to you through both the assessors office and the real estate records office of your city.
If you need more information or help with these or other topics for your DIY space, please contact Caroline Kert us via www.danieltgoodwin.com.
Our guest contributor today, photographer John Uhr, posted this great analysis on Facebook of a current, local and much-publicized trademark dispute regarding the name “Open Studios.”
A quick background: Open Studios, established in 1995, is an arts-awareness and -appreciation organization based in Boulder, Colorado. Recently, the organization has been quite aggressive in its legal efforts to protect the name “Open Studios” in the Boulder area by asserting its trademark rights. This has impacted many artists in the area, including the Boulder Metalsmithing Association. Recently, Open Studios and the Boulder Metalsmithing Association are parties to a trademark lawsuit in federal district court here in Colorado. You can read Open Studio’s complaint, filed in August 2016, here.
October 10, 2016 at 11:17am ·
A funny thing happened this evening. Completely by coincidence, I made the acquaintance of Open Studios board-member and attorney, Howard Bernstein. He was discussing with Chris Brown (respected photographer and O.S. artist) a certain controversy surrounding Open Studios suing a small arts organization. Since I have a passing interest in the matter, I asked Mr. Bernstein a number of questions I had been wondering about and listened carefully to the answers. We spoke for around 45 minutes and at the end I inquired whether Open Studios would abide by the results of the upcoming mediation if it should go against them. His answer (after assuring me that Open Studios would most certainly win) was an emphatic “why would we?” ……more on our conversation as I have time.
Ok, It’s later …
This article reports on an unexpected conversation I had with Open Studios lawyer and board-member, Howard Bernstein. The conversation took place at about 6 PM Oct. 10th at Chris Brown’s photography studio and in the presence of Chris and Mr. Bernstein’s wife, who listened with interest and occasional interjections. If Mr. Bernstein disagrees with my characterization of his position, I would welcome his input. These are his words and position to the best of my memory. I would also like to add that I hold no enmity toward Mr. Bernstein and believe he has the best interest of Open Studios at heart.
1) Mr. Bernstein believes that due to the their many years of use of the term, good works, etc. that Open Studios owns the right to the phrase “open studios(s)” for promotion of events in all of Boulder County. I asked if an individual artist (such as Chris Brown) would be allowed to post a sign saying “open studio” and he indicated that he would. I took this to mean that they only wished to control usage by organizations, but didn’t pursue the point.
2) While Mr. Bernstein seemed very anxious to make this issue about Boulder Metalsmithing Association and its director/founder Beth Merkel, it was apparent that he believes that any organization in Boulder County using the term “open studios” is violating OS’s rights and that allowing them to continue would be irresponsible. He would very much prefer that other organizations voluntarily stop using the term and that litigation is a last resort if they refuse to stop using it.
3) Mr. Bernstein believes that Boulder Metalsmithing’s attempt to trademark the term “open studios” was clearly an attempt to get exclusive rights to it’s use (keeping OS from being able to use it). I suggested that it was simply an attempt to ensure that the phrase could continue to be used by anyone, in the face of Open Studio’s demands. I said that I and everyone I had spoken to would be equally against anyone else claiming exclusive rights to the term.
4) I pointed out that literally thousands of organizations use the term “open studios”, many of them for far longer than Boulder’s OS and that I could find no instances of any of them suing to keep exclusive rights, but Mr. Bernstein insisted many times that they were “forced” to take legal action. It was clear to me during the course of our discussion that OS is pursuing exclusive rights to the term and will oppose any use of it, using legal means if voluntary compliance is not forthcoming in the misguided belief that they are protecting OS and their artists.
A search for “open studios” reveals that virtually all other of the thousands of open studio organizations attach their open studios name to their location. “Open studio” is a common generic phrase, while “open studios Cornwall” provides the uniqueness commonly valued in a trade name. For the same reason, common descriptive phrases like “farmer’s market”, “art fair”, “film festival” are attached to a location like Boulder County, Pearl St, or CU International when used as an organization’s name. I suggested that a simple solution for OS would be to attach their name to “Boulder” or “Boulder County”. Mr. Bernstein emphatically rejected this idea seemingly because “open studios” had always been “open studios” and always would be. Tradition! The response is ironic because one of the main reasons Mr. Bernstein gave for preventing the use of the term by others is the potential for “confusion”.
Mr. Bernstein also seems to be overlooking a much greater potential source for confusion. If OS doesn’t claim “Boulder Open Studios” as a trade name, what prevents another organization from doing so, for instance, as a public forum for discussion of open studios issues and controversies? Talk about confusion!
It seems to me that Open Studios simply made an easily fixed mistake in not using the more appropriate, specific and descriptive name of Boulder Open Studios. Fixing this would do much more to avoid confusion than using a generic descriptive phrase and then being “forced” to prevent other organizations to stop using it.
To make things much easier for Open Studios to adopt this solution, I have purchased the tradename “Boulder Open Studios” and the domain name “boulderopenstudios.org”. I am offering these names to Open Studios free of charge if they will acknowledge that the term “open studios” is simply a common generic phrase which should be available for anyone to use.
What do you think of John’s solution? Do you agree with Open Studio’s attorney or is this a case of trademark bullying? This is certainly a case our intellectual property team will be watching!
Individuals who are engaged in creative pursuits often maintain other employment to supplement their income. For example, a painter might work full-time as an art teacher or college professor, or may moonlight as a theater stagehand. Many artists also slog away in professions completely unrelated to their creative endeavors. Nevertheless, they may devote evenings, weekends and summers to making, promoting and selling their art, thus running a business enterprise apart from their “day job.”
However, these individuals may find themselves owing thousands of dollars to the IRS should their creative business pursuits be classified as merely a “hobby.”
This happened to Susan Crile, a painter and multimedia arts whose works have been displayed in top museums like the Metropolitan Museum of Art and the Guggenheim. Susan’s art business came into question with the IRS because she is also a tenured professor of studio art at Hunter College.
Since well before obtaining her teaching position, Susan devoted a substantial amount of time and money earning a living primarily as an artist. In addition to the costs of supplies and studio space, it took a great deal of promotional efforts to have her pieces noticed by curators and art dealers and to be displayed all over the world. Through such efforts over 40-plus years, Susan was able sell 356 works to art collectors and buyers, including a number of large corporations like AT&T, Exxon-Mobile, Bank of America and Charles Schwaab. These successes sustained her business to some degree, but not enough to provide for Susan’s living expenses entirely. Her teaching career filled that need, but as a dedicated artist, she has always continued to put in the time at her business.
Like countless artists before her, Susan wrote off expenses related to her making and selling art on her personal income tax returns. Such expenses included supplies, travel, the costs of reaching out and maintaining communications with galleries and collectors, and hiring assistants to help with social media.
Unfortunately, in 2010 the IRS accused Susan of underpaying her taxes by more than $81,000 from 2004 to 2009 because it claimed her efforts as an artist were not a separate profession or business, and not something she intended to make money from, but something she did as part of her job at Hunter.
To make this argument, the IRS invoked a set of tax code provisions often called the “Hobby Loss Rule.” Under Section 162 of the Internal Revenue Code, a taxpayer is allowed deduct all of the ordinary and necessary expenses of carrying on a “trade or business.” However, the taxpayer must show that he or she is engaged in the activity with an actual and honest objective of making a profit. If an activity is not engaged in for profit, it is a “hobby” under the meaning of Section 183.
The kicker of the Hobby Loss Rule is actually when a taxpayer loses money. Taxpayers can deduct expenses of a “trade or business” in excess of earnings, thus allowing them to claim a net loss. A “hobby” may only deduct its expenses to the extent of the profits of the activity, and cannot generate a net loss. In other words, net losses from a hobby may not be used to offset income from other sources, like a professor’s salary, but net losses from a trade or business can.
Susan’s 2004 through 2009 tax returns reported earnings from sales of her artworks on her Schedule C, but also reported a number of expenses that ultimately resulted in large overall losses for her art business, which she then used to offset other income.
When the IRS looks at whether a taxpayer’s enterprises is a “trade or business” or a “hobby,” a number of factors are considered:
- The manner in which activities were carried on;
- The expertise of taxpayer or her advisers;
- The time and effort the taxpayer expended on the activities;
- The expectation that assets may appreciate in value;
- The taxpayer’s success in carrying on other similar or dissimilar activities;
- The taxpayer’s history of income or loss; and
- The taxpayer’s personal motives.
Accordingly, Susan’s attorney stated that her goal was to show the tax court that “art is not a business like other businesses.” During trial, she called a number of art industry experts, including the dean of the Yale School of Art, Robert Storr, and a 40-year curator, gallery director, and art dealer, Renato Danese.
These experts explained that an art career, and the prices for which an artist can sell his or her work, can be highly volatile. They explained it is not uncommon for artists to make no money for years at a time, and so it is reasonable for artists to have other jobs or careers apart from their own art businesses.
In October 2014, the Tax Court Judge finally made a determination, and it was hailed as a victory to artists everywhere. Judge Albert G. Lauber held that Susan had met her burden of proving that her activities as an artist carried her actual and honest objective of making a profit, and therefore under tax law, should be considered a professional artist entitled to report her full losses on her Schedule Cs.
Despite Susan’s success, artists and creators are wise to still be wary when it comes to the Hobby Loss Rule. Under Sections 162 and 163, there remains a fuzzy line between a hobby and a business venture, especially when taking all the 7 factors outlined above into consideration of a particular creative industry. A tax advisor or attorney familiar with these nuances can help you distinguish between the two and ensure you are compliant with tax laws. If the IRS initially disagrees, a tax professional can also help you work with the IRS to support and substantiate your positions.
In the last blog post, we discussed Katy Perry’s attempts to secure a trademark in “Left Shark” and a design image of a shark. That discussion focused on trademark, which protects phrases and images that identify and distinguish a source of goods or services. Copyright, on the other hand, protects works of authorship, such as drawings, songs, musical recordings, or books.
Cease and Desist Letter
Florida-based artist Fernando Sosa markets himself as “Political Sculptor,” [http://politicalsculptor.com/] and creates irreverent 3D-printed figurines inspired by current events and world politics. Immediately after Katy’s halftime show, Fernando began selling Left Shark figurines. On February 3 (the Super Bowl took place on February 1), Katy’s legal team sent Fernando a Cease and Desist letter asserting that he was violating Katy’s rights under U.S. copyright law. They also sent a takedown notice to Shapeways, the website selling Fernando’s figurines, and Left Shark was promptly removed from the site. Fernando decided to make the fight public, explaining on his blog: “Usually when it comes to small business owners, when the lawyers come after you the outcome is usually pretty predictable. I decided to finally take a stand and break the usual cycle of rolling over or giving into legal threats.” He engaged the services of a prominent intellectual property attorney, NYU Law Professor Christopher Sprigman, to respond to Katy’s lawyers. Fernando also shared the electronic files online so that anyone with a 3D printer would be able to create their very own Left Shark sculptures.
Cease and Desist Responses
Professor Sprigman’s response letters brought up two points of copyright law. First, under U.S. copyright law, costumes and clothes are generally not copyrightable. He asked Katy’s lawyers to explain why the Left Shark costume should be treated any differently. He also questioned whether Katy Perry actually was the author of any Left Shark works of authorship, citing to Katy’s interview in Elle magazine where she explained: In my show, I am boss daddy. I am boss mommy. They call me Boss. Everything goes through my eyes; I call all the shots, 100 percent of it. With the NFL, I have to be accountable to several levels of red tape. There are many committees I have to go through for my costumes, the budgets of my show, every interview – everything, I have to report to somebody. So I am no longer the boss; I have to relinquish that control.” The Copyright Act requires all transfers of copyright ownership to be in writing. [https://www.law.cornell.edu/uscode/text/17/204] Thus, Professor Sprigman brought up a cogent point that the Left Shark design may belong to another individual or the NFL. Katy’s lawyers answered Professor Sprigman’s first point by explaining that Katy’s team created multiple shark drawings in the process of designing the costumes, and those were copyrightable. They also explained that “multiple elements” within the costume itself were copyrightable, though did not explain specifically which elements these were. Katy’s lawyers also quickly asserted that Katy did, “pursuant to the terms of multiple agreements,” own all relevant copyrights to her dancing sharks.
After receiving Professor Sprigman’s first letter, Katy’s legal team asserted in addition to copyright infringement claims, they would also bring claims under unfair competition law, because “it is clear that any commercial value that your client’s sculptures have derives solely from the public’s association of them with Ms. Perry.” Unfair competition is a set tort claims that can be brought against a party that causes an economic injury to a business through a deceptive or wrongful business practice. In the intellectual property context, unfair competition often is an accompanying claim to trademark infringement and the attempt to use an already-established name, logo, or other identifying characteristic to deceive consumers into thinking that they are buying the product of a competitor.
“Left Shark Belongs to Us All”
In the last exchange between Professor Sprigman and the Katy’s lawyers, the professor made a salient point about the collective capabilities of the Internet: “No one knew that one of the sharks dancing next to Katy Perry during the Super Bowl halftime show was Left Shark until the Internet told us so. The Internet decided that Left Shark’s flubbed dance moves were hilarious. [The Internet] gave Left Shark his name, and then made him into a meme. Left Shark isn’t really about Katy Perry.” In April 2015, Fernando retained a new attorney in Florida to continue work on his instinctual property infringement/unfair competition case with Katy Perry but, as of the date of this writing, any new developments between the two have yet to be publicly shared.
Photo taken by ShoreShot Photography