Friday, October 4, 2013

DoYou Need Help With Finances or Protecting Your Work?

Dare I say it, tax season is coming up fast, and there is never a season where you do not need to protect your work from those who seek to use it against your wishes. So whether you need help with accounting, taxes or copyright protecting your work, the Maine Volunteer Lawyers for the Arts are here to save the day.

Adam Hobson, CPA, MBA is the founder and President of Hobson and Company, a Certified Public Accounting firm located in Saco. Rook Thomas Hine is an attorney licensed in New York State specializing in intellectual property transactions, particularly performance and publication contracts, labor regulation, and the law of not-for-profit corporations.

Adam and Rook, through their affiliation with Maine Volunteer Lawyers for the Arts, have each agreed to provide separate hour-long workshops at the Maine International Conference on the Arts at the end of October. These workshops: Figures and Finance and Intellectual Property Protection are part of a selection of 27 aimed at supporting the arts. They will take place on Friday, October 25 between 4:00 and 6:00 pm.

These workshops will begin with overviews of these important topics, and will then turn to the audience for questions and answers. This is your chance to get your questions answered by professionals in the field. You can also take advantage of the many other workshops, keynotes and performances available throughout the conference.

We look forward to seeing there soon, click here to register.
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SMA said...

A recommendation from the Maine Arts Commission is not one that I consider especially trustworthy due to MAC's partnership with The New England Foundation For The Arts, which has maintained a Terms of Agreement for years which makes unreasonable claims of shared ownership over intellectual property rights, while NEFA's copyright protection policy applies only to third parties ( not to NEFA) and says NEFA will only protect your rights is NEFA decides to o so - and in return for this great generosity, NEFA goes on to say "YOU WAIVE ANY AND ALL CLAIMS OR REMEDIES WHICH YOU MIGHT OTHERWISE BE ABLE TO ASSERT AGAINST US UNDER ANY THEORY OF LAW (INCLUDING, BUT NOT LIMITED TO, INTELLECTUAL PROPERTY LAWS) THAT ARISE OUT OF OR RELATE IN ANY WAY TO THE CONTENT AT THIS SITE OR OUR RESPONSE, OR FAILURE TO RESPOND, TO A COMPLAINT."

It is the most outrageous Terms of Agreement that I have come across - looking similar in ways to Terms of Agreement used by Adobe and Google except that those companies place limitations on their own use that make the agreements reasonable. NEFA's agreement is not at all reasonable.

All of the government art bureaucracies in New England are in partnership with NEFA. I can't speak for other states but in Maine this means that NEFA is used for grant processing, which means that in order to apply for a grant online one must agree to NEFA's terms of agreement- ie basically allow NEFA with all its massive funding, shared ownership of your intellectual property rights.

As in the following paragraph from NEFA's contract:
8. License. By submitting any content to Our site, You grant to Us a perpetual, unlimited, irrevocable, royalty-free, non-exclusive, assignable, and worldwide license, to make, copy, perform, publish, display, distribute, transmit, translate, modify, prepare derivative works and use the content in other works in any form, media, or technology now known or hereinafter developed for the full term of any rights that may exist in that content. You also agree to waive and never assert any moral rights that You may have in the content submitted to Us.

This is my blog post on the NEFA Terms of Agreement

If The Maine Arts Commission makes no objection to the NEFA terms of Agreement and in fact uses NEFA to process grants- then MAC is complicit as well- and not trust worthy in regards to protecting individual artist's rights.

Maine Arts Commission said...

Thank you for this comment. I hope I can address some of your concerns in this response.

The Maine Arts Commission does pay regional dues to NEFA, as does almost all state arts agencies in the nation. In return NEFA administers grants that serve organizations in Maine; such as Bates Dance Festival, Portland Ovations and the Stonington Opera House. These grants delivered to Maine far outweigh the small fee we pay each year.
The Maine Arts Commission does not administer its own grant through NEFA in any way. We have our own independent system that serves everyone. We are in fact improving this to make it even easier to use.
As for usage of materials. The Maine Arts Commission did once require high resolution images that it did retain the right to use for the promotion of the artists who received grants. Now we do not require these. We now ask artists after they receive grants if they are willing to supply their work for promotional purposes. We consider the protection of artists' work a priority.

SMA said...

Fees are not at issue here- the claims made by NEFA over intellectual property rights are at issue. MAC says it does not use NEFA for its own grants but I seem to recall receiving an email announcing that MAC uses NEFA for grant processing. If I am wrong I am wrong- but the words "its own grants" seem

to leave a little wiggle room. So MAC just pays fees and has no further input in the way NEFA is run?

No responsibility concerning the NEFA Terms of Agreement?

No defense of the NEFA Terms of Agreement? Just acceptance? In exchange for monetary rewards?

That may be fine with MAC but it still goes that MAC is not serving teh interest of protecting intellectual property rights bia its purely monetary relationship with NEFA. Either you are committed to protecting artists property and intellectual rights- or you will look the other way for a small fee. There is no gray ground here.

SMA said...

It seems to me that the Terms of Agreement put forth by The New England Foundation for the Arts is exactly the sort of agreement that artists need to protect themselves against. Once I read the terms of agreement , I declined to join and so I do not have access to inner circle information. From what I understand that is information regarding grants and so this is the use of capital funds for the arts as a means for the non-profit organization (NEFA) to gain intellectual ownership of the arts. It's as one sided an agreement as you will ever find - even saying that anyone signing the terms of agreement can link only to NEFA"s home page, while NEFA claims the right to "deep link" to any content submitted ( that's "submitted" and not "published")- with "deep link:" remaining undefined.

In fact according to NEFA, you don't even have to agree to NEFA"s Terms of Agreement- all you have to do is use the search function on their website to be governed by NEFA"s terms of agreement- or so NEFA asserts but it seems unlikely such an assertion would ever hold up in a court of law, although NEFA does have plenty of money to buy whoever.

If the Adam Hobson and Rook Thomas Hine are offering services to protect individual rights of the artists- why don't they weigh in on the NEFA Terms of Agreement? I would be interested in what they have to say about it.

Maine Arts Commission said...

Thank you again for your thought provoking emails. You are correct in the fact that you are wrong about remembering an email; we have sent no such email stating NEFA would handle our grants. Please feel free to visit at any time to see our system in place.

As previously stated, the Maine Arts Commission administers its own grants.

As for intellectual property protection, we are very happy to be providing workshops on the issue at an international conference that welcomes both for profit and nonprofit members of the regional cultural sector. We continue to listen to the feedback from our constituents and welcome conversations like this one.

The fees paid to NEFA are dues mandated by the NEA and in return the arts in Maine are supported at an incredible return.

The language you quote is indeed worth looking at, and we suggest you contact NEFA directly to see if they are willing to change it. Of course none of us could ever imagine NEFA doing anything to harm artists. We are certain that the intent of the language was the same as why the Maine Arts Commission would ever use art: we like to advertise and advocate on behalf of artists. This ensures support.

SMA said...

Quote from MAC"Thank you again for your thought provoking emails. You are correct in the fact that you are wrong about remembering an email; we have sent no such email stating NEFA would handle our grants."

AND Also t In return NEFA administers grants that serve organizations in Maine; such as Bates Dance Festival, Portland Ovations and the Stonington Opera House.his quote "

So you are making a distinction between MAC grants, which you say are not processed through NEFA and NEFA administered grants benefiting the above cultural institutions, which clearly NEFA administers, meaning that the above Maine cultural institutions had to sign the NEFA terms of Agreement in order to apply for a NEFA administered grant. This was probably what the email that I received was about- unless the Maine Art Commission serves no role in promoting or encouraging Maine artists to apply for NEFA grants, which seems not to be the case.

I have written to NEFA about their TOS since 2007 and the only thing that changed is that they used to call their "partner site", which hosts only NEFA "Cultural Logic"- a name shared with an online Marxist publication,which I wrote about in a blog. There after the name was changed to "Community Logic".

Other than that not a word has changed since I wrote objecting to their terms in 2007. My 2009 dialogue with NEFA is at>

But even if I contact NEfA,it says nothing about MAC's collaboration with NEFA and NEFA"s Terms of Agreement. Obviously NEFA has no reason to concern itself with the concerns of an individual citizen but The Maine Arts Commission stands collectively for the state of Maine and is a listed partner of NEFA- . One would think you would have more influence than a an individual citizen. but,you are deflecting responsibility and that as you recommend lawyers for artists supposedly to protect the artist from other entities such as NEFA. MAC's partner, trying to claim ownership of intellectual property rights over work created by the artist.

Maine Arts Commission said...

Can you explain what exactly we should be protecting organizations from in terms of NEFA?

Do you have an example where NEFA has taken art against an artist's will and used it for any gain, financial or otherwise?

It would seem that any organization that applies for a grant is aware of the language and conditions, and they continue to apply because they see no threat, or have no concern.

There are sure to be some good conversations at the MICA conference, and the one on intellectual property rights will surely provide some great talking points.

SMA said...

Interesting but not surprising that you frame your question in terms of "organizations" rather than individuals -and the organizations are non-profit organizations.

I don't need to give you an example of any actions taken by NEFA. The character of NEFA is in their Terms Of Agreement which is clearly exploitative to anyone with common sense. Nothing in your response has refuted that- you have just danced around the subject.

What ever people "feel" sure about is a separate matter from legal protection. Contracts are provisions against the nu-forseen. Most people would not enter into a relationship with another party if they "feel" they cannot trust the other party, but most people have been burned at some time in their lives by someone they trusted.

NEFA is an organization controlling vast streams of wealth. If one is being offered some of that wealth the risk represented by the words in the Terms of Agreement might appear small compared to the monetary rewards.

The content of the Terms of Agreement is so over the top that it seems incredulous, but it is there for the long term. It is already over six years since I first came across the NEFA TOS during which this country and the world has changed more than I could have imagined in 2007.

Maine Arts Commission said...

Here is my "question" again: Do you have an example where NEFA has taken art against an artist's will and used it for any gain, financial or otherwise?

I do not see an organization mentioned in this "question."

No there were two questions, one directly stating "artists" the other "organizations." It is you that insinuates bias to suit your needs. Much like the "seem to remember an email" argument.

But the fact remains that NEFA has never used materials for any form of under-handed gain, nor is it ever likely that they will.

They will however continue to support workshops and training that helps "artists" protect themselves from legitimate concerns. We are looking forward to having our partners at the conference providing their expertise to artists, and members of organizations, because that is what their staff does.

We will bring your concerns up to staff of NEFA though at the conference, because we are not trying to skirt the issue. We do listen to all points raised. This conversation has simply been an effort to provide you with facts because you had believed that MAC was somehow running its grants through NEFA and that is not correct.

SMA said...

I already gave you an answer to your question and I refer back to my previous answer.

You may not see an organization mentioned in the question but look at who is asking it- the collective voice of an organization. I have no idea who the individual is behind that collective front. My own reference to "organizations" refers to the other question asked by the Maine Arts Commission- "Can you explain what exactly we should be protecting organizations from in terms of NEFA? "

Really- can you not understand what is being said in the NEFA Terms of Agreement? I was all set to sign up for the database but it only took me a minute or two to understand that this is not a Terms of Agreement that anyone should sign. I am not a lawyer-but it doesn't require a law degree to understand that NEFA is trying to gain shared ownership to intellectual property rights. I have already posted several quotes from their contract. Do I have to walk you through every sentence of those quotes and explain them to you so that you will understand why they are unacceptable terms? Further more I already posted this link which discusses the issue;

The "seem to remember" is still seem to remember-It is probable that I still have that email in my files but its not worth my time to go dig it up- but after using that "seem" as a point in an attack on me- you then go and argue that "But the fact remains that NEFA has never used materials for any form of under-handed gain, nor is it ever likely that they will."

So we are to assume that you know every activity in which NEFA has ever been engaged or ever will be engaged and that your word on this is your substantiation for that claim?

That "seems" pretty unbelievable on the first score and impossible to substantiate on the second. Is that the best you have, Maine Art Commission ?

This all to transpose the issue from the content of NEFA's terms of agreement to a unsubstantiable truth claim. The problem is that you can't talk about that Terms of Agreement- can you? Perhaps you had to sign an oath of silence with NEFA in order to get that stream of wealth to flow through the port of the Maine Arts Commission. - Just a hypothesis- mind you- one that fits with the character of the NEFA Terms of Agreement.

Maybe Mr Hobson and Mr Hine are fine and maybe not. One way for the public to measure the trust worthiness of Adam Hobson
and Rook Thomas Hine is to question them about the NEFA Terms of Agreement. That's what I would do. If I think they give a legitimate answer to a this legitimate concern, then I might be inclined to trust them, otherwise not so much.

I think you are saying that there are some funds that Maine Arts Commission gets directly such as NEA funding distributed directly to the Maine Arts Commission and for money that is distributed or received directly by the Maine Arts Commission, there is no need to have any involvement with NEFA- but you also pay fees to NEFA and NEFA is also is distributed NEA funds from the federal government plus NEFA collects funds from other foundations and gifts. You have already acknowledged that you redistribute NEFA funding to Maine organizations and so, based on that claim, I think your claim that MAC is not running "its" grants through NEFA is a qualifiable half truth,used to avoid any response about NEFA's Terms of Agreement and the protection of intellectual property rights.

Maine Arts Commission said...

It seems the simple fact is that there is a choice. You choose to remain unengaged with NEFA and that is perfectly fine. Others choose to seek their support and trust them, simply because there appears no legitimate reason to doubt them based upon the fact that NEFA has a rich history of helping artists.

Rook and Adam have nothing to do with either NEFA or the Maine Arts Commission. They are lawyers donating their time to support the arts.

Again, the Maine Arts Commission does not have NEFA administer its grants, nor does the Maine Arts Commission receive funding from NEFA for its programs. There is nothing in what has been said that can lead you to that conclusion.
You keep making statements about this that are not based upon any evidence or research.

NEFA provides funding directly to Maine artists and organizations.

Do you really think anyone in the arts swears an oath of silence?

In this conversation we have tried to be open and honest with you in order to provide the truth about how the system works. It seems though that you have your beliefs and of course you are entitled to them. We appreciate your comments but this conversation is going nowhere.

SMA said...

So you are saying that the Terms of Agreement claiming shared ownership of intellectual rights for any "deep linked" material posted on NEFA's website- for all of eternity with no recourse to action is NOT a "legitimate"

reason to distrust NEFA? Dare I say that you, Maine Arts Commission, are exceedingly naive - at best.

It took me a while to understand that in your previously sentence posted : "They will however continue to support workshops and training that helps "artists" protect themselves from legitimate concerns. We are looking forward to having our partners at the conference providing their expertise to artists, and members of organizations, because that is what their staff does. "- that "They" and "their" refer to non-other than NEFA, so generously running workshops on intellectual property rights protection, even as they have refused to change one iota of their grab for the same in the six plus years since I have brought it to their attention. Perhaps they just want to shine up the surface of their image but it can't conceal what is in their own Terms of Agreement published online for all to see.

I checked out Rook and Adams and they look worth a listen.

You keep parsing your language when it comes to describing the relationship between The Maine Arts Commission and NEFAa- its like you are saying NEFA has nothing to do with some Maine Arts Commission activities. OK- I wouldn't expect that they would but you have already stated that MAC pays a fee to NEFA- for what? That's taxpayer money you're spending!

BTW nothing that I have posted can is a conclusion that Mmaine Arts Commission gets funding from NEFA for its programs. The discussion has all been about grants- not about programs- though you do seem to be suggesting that NEFA is involved with the program about intellectual property rights with nothing said about funding - merely that their "staff" ( volunteers too?) provide expertise.

Maine Arts Commission said: "You keep making statements about this that are not based upon any evidence or research"

Well please provide the "evidence" that I have made the "statements" that you have been putting into my mouth!

The statement "NEFA provides funding directly to Maine artists and organizations is what I said- but you have justified paying a fee to NEFA with the fact that Maine organizations received money from NEFA and so I think there is a little more to the story than you are willing to admit. Once again- What does Maine Arts Commission receive from NEFA in return for the fee? What is the terms of agreement in the fee transaction?

You ask if I think anyone swears an oath of silence (a non-disclosure agreement in other words) and I point to #7 the NEFA Terms of agreement

7. Linking and Framing. You agree not to bypass or attempt to bypass the home page of Our site and “deep link” to any other page in Our website, or frame Our content within another website or copy, or use it in another medium without Our express written permission. You hereby give Us the right, however, to create a deep link to certain pages on Your website for the purpose of offering access to content that We, in Our sole discretion, determine to be appropriate for the CultureCount™ site.

I am just saying that it would be characteristic of NEFA to make similar demands of state agencies who are linking to NEFA as a resource to "bring capital into the state" as our legislature calls it.

Thank you for your openness. You are entitled to your opinion about where this conversation has gone.

Maine Arts Commission said...

Again, we did not say NEFA are involved in programming at all. We said NEFA will be at the conference. Hopefully you will be too and then we can introduce you to them in person and let you discuss your concerns.

Adam and Rook are worth a listen and we are certain that attendees will receive a great amount of information that will be helpful.

SMA said...

Well then I am not understanding who you mean by your use of pronouns in the previously cited comment.

I would like to hear Rook and Adams but Orono is a very long way to travel. Since I am one of two primary care takers for my elderly father, it is not such an easy thing to do.