Showing posts with label litigation. Show all posts
Showing posts with label litigation. Show all posts

Friday, March 12, 2021

Q&A with Andrew Tenenbaum

Andrew D. Tenenbaum, Esq. Lectures on the Economics of Live Touring at Los Angeles College of Music
Andrew D. Tenenbaum, Esq.
Lectures on the Economics of Live Touring
At Los Angeles College of Music

Andrew D. Tenenbaum
has decades of management experience with clients such as comedian Terry Fator, producer Larry Brezner (“Arthur”, “Arthur 2” and “Ride Along”), the Frank Zappa Estate, Elvis Presley Enterprises, comedian Chonda Pierce, writer Beth Sherman (“The Ellen DeGeneres Show” and “The Queen Latifah Show”), writer Anthony Caleca (“Tonight Show”, “The Talk” and “The Kelly Clarkson Show”), writer Andrew McElfresh (“Tonight Show”, You Bet Your Life With Jay Leno” and “Scary Movie II”), X-Games skateboard medalist/actor Paul “P-Rod” Rodriguez, and many, many more entertainers and athletes.

In addition, Mr. Tenenbaum has been a founder, operator and investor in multiple start-up private companies, has an extensive history as a producer and executive producer in film and TV, and he is a licensed attorney with a sharp entertainment litigation practice.


BOSCHAN: What are the three most important things that you do for clients?

TENENBAUM: That may be one of the best questions ever asked.  

BOSCHAN: Thank you. You may have one of the best answers.

TENENBAUM: The number one thing is to help clients to realize their creative dreams.  It's not about a quick hit or making the news on a given day. But rather to help them sustain a career and reach goals.  

Number two is to be honest, fair and reliable.  Artists need to know you have their back and are looking out for them.  

Number three would be to take care of business so artists can focus on the art.  One of my mentors, Buddy Morra, hung a sign in his office that said, “Don’t Embarrass The Office.”  So, add that one to the list.

BOSCHAN: You have such a multifaceted career.  You are an attorney, a talent manager and an entrepreneur… who does each of those things well!  Am I missing anything? (e.g., Are you an architect too? haha)

TENENBAUM: Not an architect but I do have an amazing wood workshop in my garage that is my hobby.  

BOSCHAN: A true Renaissance man. 

TENENBAUM: As to your question, you have the list correct.  But did I also mention that I produce film and television?  All of those things work harmoniously together.  

Being a talent manager is the “mother ship” that gives me a great reach of relationships, an understanding of how artists think and function, how the pieces of production come together and the inner workings of the sub-genres of the entertainment business.  

Of course, the lawyer side greatly informs putting deals together and vice versa. 

And the entrepreneurial endeavors are the icing on the cake.  

BOSCHAN: Do you find you can focus on all of these occupations simultaneously, or do you prefer to take breaks and focus on them serially?  

TENENBAUM: It's all simultaneous.  It gives me great flexibility.  If I meet an artist or rights holder that needs management I can go in that direction.  Sometimes it's about legal advice and I can work it that way.  Or sometimes the opportunity is more about investment or a start-up.  I can also take on a one-off deal as a lawyer, or bring an IFTA or other arbitration for a profit participation.


BOSCHAN: How have your varied career pursuits informed your practice as an attorney?

TENENBAUM: There is no substitute for actual hands-on experience to inform the practice of law.  I have spent tens of thousands of hours on the road, at rehearsals, at shows, recording, producing and working with artists in all kinds of other ways.  Then, when an issue arises it’s a tremendous benefit to have had the firsthand boots-on-the ground experience to know how things work in order to put together deals or resolve conflicts.

BOSCHAN: How does your view differ from others when you are evaluating a potential case?

TENENBAUM: I think I have a much more practical view of things, that comes from experience like I mentioned above.  Not everyone has that.  Too many lawyers just know what things look like on paper and when they go bad.  Go spend 30 days a year of more on a tour bus, or months on a set in 90-degree weather in Tennessee, and folks will understand a lot more.   

BOSCHAN: How do you differ from other entertainment litigators who specifically do profit participation work, which is one of your strong suits?

TENENBAUM: There are many very good lawyers out there doing great work.  My differentiation is that I prefer contingency work.  It aligns my interest 100% with the client.  If they don’t win, I don’t win.  I don’t get paid for bad settlements.  I will take that risk and bet on myself every time.

BOSCHAN: In litigation we often look backward in time to claim past damages for clients. How far back can you usually go?

TENENBAUM: There are normally three limitations.  First is the statute of limitations, which is the law about how for back a claim came be made.  In California for example its normally four years for a written contract.  There is some room to maneuver as to when that four years begins.  Second is if there is a clause in the contract that limits the amount of time a client has to object to a statement that accompanies payment.  Third is also in a contract and that would be after the period of time to object to a statement, how long a client has to file an action.  It’s very important to track these things and if you are going to challenge a statement to get a terrific auditor retained.  Am I allowed to mention Cedar Boschan for this last suggestion?

BOSCHAN: Thank you, Andrew. We are pleased to be of service.

Do your damages claims often relate to intercompany fees deducted off the top from the foreign affiliate receipts reported to our clients?

TENENBAUM: Yes, this is a common claim.  This happens where a distributor charges a basic distribution fee and then hires its affiliates as a sub distributor.  The artist ends up being charged twice by the same company and all the money goes into the same pocket.  I had a case once where a European distributor was aggressively defending an intercompany distribution fee claim that I destroyed when we provided evidence that both entities had their name on the same door.  Not all of them are that easy, but the claim is quite common.

BOSCHAN: What are some of your challenges collecting your clients’ fair share?  Can you offer any tips?

TENENBAUM: Shock and awe!  When it becomes clear that the distributor is not going to settle reasonably, then move quickly and aggressively to file an action.  And don’t just go in with a summons and be seen as settling in for a long-term case.  Hit them hard from the beginning.  File the complaint along with a motion for summary judgment where possible, be aggressive and expedient about discovery and utilize arbitration where possible.

BOSCHAN: I love shock and awe!

To make arbitration over foreign distribution profit shares worthwhile, what minimum level of foreign earnings and/or what kind of pictures/projects are we talking about in which territories?

TENENBAUM: If client and lawyer are smart about the elements of the claim and realistic about settlement potential it’s possible to bring cases in the mid five figures.  For example, if it’s an IFTA claim and the distributor does not want to end up in bad standing by defaulting at IFTA, they will need to pay real attention to the claim.  They don’t want to be barred from film markets.  Lawyers who are efficient and aggressive can get good settlements in cases this way.  And often it’s not about just one case for smaller amounts, but rather bringing a variety of cases across a film or portfolio the total of which is cumulative equivalent or more than one very large case.   


BOSCHAN: What are the major income sources for your clients and how is that changing over time? 

TENENBAUM: Income sources have changed dramatically.  Take for example film producers.  Ten to twenty and more years ago there was the same theatrical income as there is now, except for this pandemic.  However, in those days there was great money to be made from distribution windows at pay cable, basic cable, and DVD.  Broadcast networks for movies of the week had largely ended by then, at least in the USA.  That’s all gone in relative terms at least, and in addition to theatrical it’s the various forms of video on demand, namely subscription and transactional.  Some folks made fortunes on DVDs…anyone own a DVD player except to watch the screeners the guilds send out (which are quickly being replaced by streaming links)?

BOSCHAN: To make a living, how many fans does an entertainer need?  1,000 (per Kevin Kelly) or 100,000? Or what questions should an individual be asking to determine if a project is financially viable.

TENENBAUM: The answer very much depends on the genre the artist works in.  I don’t agree that the 1,000 that the article talks about is anywhere near close to what is needed for an artist on a national scale.  A jazz musician can make a living with probably 500k+ followers.  Versus a pop artist needs millions to tens of millions to sustain touring, recording and everything that goes with it.  And there are many cases in the middle.  Plus, there is a key factor of engagement which may be more important than fan count.  An artist with a highly engaged social media base of 1M is more viable than an artist with 10M that has casual fans that don’t engage much.  

BOSCHAN: In the entertainment business, what is less important now than it was five years ago? And how will the coronavirus pandemic permanently change the entertainment business?

TENENBAUM: The pandemic has changed a lot of things.  One I would like to discuss is “appearances”.  There was a time that it was critical to have great looking offices, a prestige address, lunch at the right places, etc.  Now that we all work from home due to Corona, in many ways I feel that it has leveled the playing field.  Many folks on those Zoom calls are wearing sweats and t-shirts, the kids are taking in the background and the dog is barking.  But we have learned to look past all that and focus on the person.  Not that I am giving up my offices any time soon, but I like that appearances are at least a lesser part of the equation.

...Anyone want to buy a closet full of button-down Brooks Brothers dress shirts?

I think for the next phase after the pandemic people will become much more deliberate in their out-of-the-home activities.  Going to the movies, for example, will be planned to a greater extent.  Concerts will be, unfortunately, less in volume and higher in a fan’s scale of importance.  Informed people are taking about more “curated” activities.  

BOSCHAN: What are some of the current companies in entertainment who you think are getting it right and why?

TENENBAUM: Just to give a few examples, right now at the top of the list is Netflix.  Ten years ago, they were mailing DVDs to my house, so we did not have to go to the store to rent them.  Then they figured out how to ditch the discs and stream the movies.  Then they figured out how to produce and distribute some of the best quality content that an entire family can watch for the cost of a single movie ticket.  They deliver a great product at a very fair price.  

Disney+ is doing the same and now with the bold goal of delivering ten series based on Star Wars, again for a very affordable monthly price.  

Spotify is another one.  For a very fair monthly price a family has access to virtually every song ever, on demand, with an amazing set of tools to refine song lists and playback options.  Again, for monthly price of less than what a CD cost back in the day.  

BOSCHAN: What are some of the key opportunities for entertainers today?

TENENBAUM: The biggest opportunity today presents the biggest issue.  Everyone has - at their fingertips - distribution to the entire world.  4.4B people have access to the internet.  2B have YouTube.  The key opportunity is how to break thru all the noise and be heard.  How to get your material seen and hear.  

Charli D’Amelio is a 16-year-old who has 8.6B likes on Tik Tok and no one heard of her just a few years ago.  If you add up everyone who ever saw a concert by Miles Davis, Count Basie, Elvis, Michael Jackson, David Bowie, The Beatles, Bing Crosby and Sinatra it won't be a fraction of that.  

One artist to look at is Laura Clery.  Laura has 13M fan on Facebook.  She puts out videos multiple times per week and gets tens of millions of views.  Some say she is a modern version of Lucille Ball.  I think if Lucille Ball were alive today, she’d be doing what Laura is doing.  

Chonda Pierce is a dear friend and client I work with.  She is a terrific study for young artists that want to break thru, to see how Chonda took advantage of each opportunity as they presented themselves to evolve a career, from VHS, to DVD, to theatrical documentary, to streaming and on. 


Andrew D. Tenenbaum, Esq.
Lectures on the Economics of Live Touring
At Los Angeles College of Music

BOSCHAN: You were kind enough to guest lecture on the economics of the live entertainment business when I was teaching at Los Angeles College of Music. The students thought you were the best speaker, by the way! I had them read this op-ed in Billboard that you wrote as well about dynamic ticket pricing and VIP packages. 

At this juncture (during a coronavirus pandemic where much of the live entertainment business is shut down) and looking into the future, in which directions do you think dynamic ticket prices and dynamic fan experiences are evolving?

TENENBAUM: Thanks for the kind words.  Dynamic pricing is and will be the future.  It makes total sense.  Like I wrote in the article, you can’t mess with the law of supply and demand, but if you try that’s when the middlemen step in a take income away from the artists because the marketplace was not real.  That is the Don Corleone scenario I wrote about.  Dynamic pricing is the natural outcome of the supply vs. demand equation.  It will become more of the norm.

BOSCHAN: You had the foresight or luck to divest Future Beat - your VIP package business - before the COVID-19 pandemic (WME bought it).  Would you consider getting back into the live music business again in the future and under what circumstances? 

TENENBAUM: Live music will always be a terrific business.  I am working on a new venture.  It's going to take some time till things can be safe for the artist and audience and de-risked for the investor.

BOSCHAN: Do you think virtual live (or prerecorded) event experiences are priced below-market, just as live experiences were? (Except there aren’t scalpers to resell tickets because there is unlimited supply of underpriced access to virtual live entertainment events.)

TENENBAUM: The virtual live business is too young to really know.  $20 seems to be a sweet spot for a lot of these offerings.  But it will take time to find out where the right price lives.

BOSCHAN: Any tips on how entertainers can better or more dynamically monetize their virtual appearances?

TENENBAUM: There is a nice set-up offered by and others that utilize large video boards that allow fans to pay a VIP price to be seen in a virtual audience.  Merchandise bundles and personal Zoom sessions are also being offered.  

BOSCHAN: Are there unique challenges for comedians in going virtual? (My favorite local comedy show – The Secret Show – has not gone virtual. I wonder if it is because some of the comedians have granted exclusive streaming rights to other companies and, whereas they could previously perform live, they are restricted from streaming their performances, or maybe they just don’t want to because live is how they were testing their material and it is hard to get the same audience feedback virtually.)

TENENBAUM: Comedy presents a very different situation than music.  Comedians need the real-time feedback of a live audience.  Just try to watch what some have tried on television specials without audiences.  It’s difficult for them to find a comfort zone and the viewer sees it all as off balance.  It doesn’t deliver.  The virtual audience I mention above is a good solution. 


BOSCHAN: When should an entertainer fire his manager?

TENENBAUM: I am a strong believer in loyalty and that good things flow from that.  David Steinberg is a manager I worked for, for many years, and a mentor.  David is a great teacher and one of the funniest people on the planet.  He has managed Billy Crystal for 50 years. Billy is one of the greatest talents I have ever seen.  Billy’s career has benefited tremendously from having David at his side, watching his back and advancing his career.  That’s what artists should have in a manager.  And if an artist does not have that, the next step is to talk to the manger.  Don’t expeditiously fire him or her.  The client-manager relationship is a very special one.  Always try to make it work.  But there are times when it is appropriate to move on.

BOSCHAN: What software and services help you run your life? 

TENENBAUM:  Is red wine an appropriate answer to this question?

BOSCHAN: What is the best $200 dollars (or less) that you have spent in the last year? (i.e., what is the small purchase that gave you the greatest joy?)

TENENBAUM: Is red wine also an appropriate answer to this question?

BOSCHAN: What are the key metrics you rely on to gauge your success?

TENENBAUM: I learned a great lesson from my dad on this one, Stephen Tenenbaum, who has had a 64-year career as a business manager, royalty auditor, manager, and producer.  He always said to keep the clients happy and the success will follow.  It’s a good non-metric.  It works.   

BOSCHAN: Your father is such a legend in the entertainment business. Three of my mentors – Fred Wolinsky, Linda Becker, and Steve Sills – worked for him and I am delighted to be working with him on a project right now.  Why did you choose to pursue your law degree (and not accounting)?  How has having a father in the world of accounting and in entertainment helped or hindered your career path?

TENENBAUM: Actually, I have a degree in accounting.  My father has been the best mentor and teacher.  He has a vast knowledge of the industry and its history that reaches back to 1957, when Elvis was first getting started and before the Beatles, to the present with streaming, hip hop, social media influencers, etc.  There are very few people in the industry who know what he knows.  I call on him frequently for advice on things.  And he now calls on me… that is how I referred him to you.

BOSCHAN: I can't believe you also have a degree in accounting. Wow - I am so impressed!


BOSCHAN: Who should definitely contact you? Who are your clients and how can they find you?

TENENBAUM: Artists, rights holders, producers, and investors.  Most anyone with a need for professional representation in the entertainment industry.  I am not shy about saying when I don’t have the ability to do something and helping direct someone to the expertise they need.  A lot of the business comes from referrals, but I also have my website,

BOSCHAN: Thank you for teaching us so much,  Andrew. I especially encourage profit participants to reach out for your help with foreign and other damages claims!

Friday, December 23, 2016

2016 Year in Review - Tech & Game News

Professionally speaking, in 2016, I found articles about in-app purchasesthe value of interactive game deals, pricing of bundles and discounting to be most relevant news to my practice of auditing game publishers and distributors, while right of publicity cases like this and this were most relevant to my forensic accounting work.

Further, followers of my tech feed on Twitter - especially game developer CFOs and attorneys - were most engaged by the following news in 2016, especially news reported by Gamasutra and VentureBeat:
There were many shares of information that did not engage readers, so I did not mention them.  What was the most interesting games earnings news story not mentioned here, especially those that pertain to royalties and/or damages?

Friday, January 1, 2016

2015 Year-In-Review: Damages

 What We Learned About Damages from Blurred Lines + Howard King Talk

Tuesday, December 1, 2015

Calendar: Wednesday, December 9, 2015: Talk on Royalty & Participation Audits

The Beverly Hills Bar Association will present on Wednesday, December 9, 2015 a program on royalty and profit participation audits:

Our founder, auditor and forensic accountant Cedar Boschan, will lead top accounting and legal audit professionals in discussion about:
  • Drafting accounting, objection and audit provisions in contracts
  • Making the call to audit, hiring an auditor and issuing audit and objection notices
  • Working closely with accountants to smoothly complete audits
  • Negotiating tolling agreements, settlements and, at times, litigating
Forensic accountant and royalty auditor Cedar Boschan Moderates Panel at Lawry's
The panelists will discuss these and other elements of modern royalty and profit participation audits to empower attorneys in attendance to optimize settlements for your clients.  
Speakers include an auditor and a litigator who mutually represent plaintiffs including Richard Dreyfuss in a current case against Walt Disney Pictures, as well as an executive from MGM:

  • Neville Johnson, Esq.; Partner at Johnson & Johnson LLP
  • Edward Slizewski, Esq.; Senior Vice President at Metro-Goldwyn-Mayer Studios Inc.
  • David Robinson, CPA; Owner at Robinson & Company
  • Moderator: Cedar Boschan; Founder, Boschan Corp.
Attorneys who attend the lunch at Lawry's The Prime Rib in Beverly Hills (or who watch the program online) may receive 1.5 hours of MCLE credit.

Registration is now open - click here to register!

Monday, September 8, 2014

Q&A with California Talent Agencies Act Expert Edwin F. McPherson, Esq.

Edwin F. McPherson, Esq.

Distinguished entertainment litigator Edwin F. McPherson is the foremost expert on California's Talent Agencies Act (the "TAA").  On the heels of a recent Billboard piece - "Did the California Labor Commissioner Just Shake Up the Music Industry?" - we share the Q&A below to benefit talent representatives.  

To contact Mr. McPherson, visit or call 310-553-8833.

Cedar Boschan: What is the Talent Agencies Act?

Ed McPherson: The Talent Agencies Act is found in California Labor Code Section 1700 et seq.  Essentially, the Act governs the licensing and regulation of talent agents in the State of California.  However, what the Act also does is to preclude anyone who is not a licensed talent agent from procuring employment for “artists” in the entertainment industry.  The concept of “procurement” has been expanded over time to include any negotiation whatsoever, so that anyone who is not a licensed talent agent may not negotiate any terms of an employment agreement for an artist unless that person does so at the request of, and in conjunction with, a licensed talent agent.

How does it impact recording artists and their representatives?

McPherson: The Act was enacted to protect artists.  Many questions have been raised in the last several years (primarily by me) as to whether the Act really does what it was designed to do, or whether it actually hurts the very artists that it was designed to protect.  Several years ago, professionals in the music industry lobbied to amend the Act to exempt recording agreements from the Acts proscriptions.  That amendment went unchallenged for many years until the California Labor Commissioner, in the Dwight Yoakam v. The Fitzgerald Hartley Co., etc., et al., Case No. TAC 8774, determined that, because modern recording agreements include elements such as music videos, there are parts of a recording agreement that are subject to the Act and parts that are exempted from the Act.  Now that most, if not all, recording agreements include many other “360” type elements, the so-called “recording agreement exemption” is all but gone.

Unfortunately, there was never an exemption made for the negotiation or procurement of publishing agreements, perhaps because nobody ever contemplated that a publishing agreement could be the subject of the TAA.  However, not all publishing agreements are subject to the TAA.  If the agreement is a simple licensing agreement, licensing the use of one or more compositions, the procurement of that agreement is not considered to be a TAA violation; however, if the agreement purports to require the services of the songwriter to write songs for a period of time, the procurement of that agreement is typically going to be found to be a violation of the Act.

The unfortunate fact of life in the music industry is that agents in the music industry do not typically negotiate recording agreements, publishing agreements, producer agreements, or even mixing agreements – so the TAA basically leaves a musical artist without anyone who is adept at negotiating such deals, who is legally authorized to do so.

Boschan: What about music producers and mixers, and their representatives?

McPherson: There is now an odd dichotomy between how producer agreements and mixer agreements are construed in accordance with the TAA.  There is a case from a few years ago, entitled Lord Alge v. Moir Marie Entertainment, Case No. TAC 45-05 (2008), in which the California Labor Commissioner ruled that a management company that essentially did nothing for two mixer partners but procure employment for them was not liable for violating the Act because a mixing agreement is a recording agreement under the recording contract exemption to the Act.  Moir Marie actually found an expert witness who testified as such – and I can tell you that there is probably nobody else in the music industry that would say that a mixing contract is a recording contract.  In fact, most of the time, mixers do not record anything; they only mix the tracks that have been recorded already.  Even the Labor Commissioner thought twice about her decision, and granted Lord Alge’s motion for reconsideration.  However, unfortunately, the case had already been de novo’d to Superior Court, and jurisdiction therefore removed from the Labor Commissioner.  Although it is doubtful that a similar case will be decided in the same way in the future, lawyers unfortunately are still allowed to cite to the case for authority.

More recently, in fact on August 11, 2014, the Labor Commissioner decided Lindsey v. Lisa Marie Entertainment, Case No. TAC 28811 (2014), in which the successor of the same management company, doing exactly the same kind of procurement for a producer client, was found to have violated the Act.  The Labor Commissioner determined that a producer deal is not a recording agreement.  This, of course, is the proper ruling.  However, the interesting thing is that one could argue that a producer agreement is much more akin to a recording agreement than a mixing agreement.  The hearing officer in the Lindsey case treaded carefully around the Lord Alge case, paying deference to the hearing officer in that case, simply by saying that his decision was limited to the (producer) agreement at hand.

Boschan: How do you help clients who are impacted by the Talent Agencies Act?

McPherson: Although I have often criticized the Act, I have represented countless artists against their former managers and others.  Although I question whether the Talent Agencies Act is good for the industry as a whole, it would be malpractice for me not to use it to the advantage of talent that I represent when their former representatives come after them for commissions.  Similarly, I have represented managers against talent when I do not feel that they have violated the Act, or at least have not violated the Act in a way that permeates the relationship, as defined in the Marathon v. Blasi case.

Boschan: You are a Talent Agencies Act activist.  What changes do you think should be made to the act and why?

McPherson: I think that the entire Act should be looked at very closely in light of the entertainment industry as it exists today – not when the law was originally enacted.  However, the first priority has to be the Solis v. Blancarte case!


Ed McPherson has been practicing law for over 30 years.  He is licensed to practice law in California, New York, Massachusetts, and Hawaii, and has litigated cases all over the country.  He is a partner with the Los Angeles entertainment litigation firm McPherson Rane LLP, which specializes in the (talent side) representation of artists in the entertainment industry.  A substantial portion of Mr. McPherson’s practice involves the Talent Agencies Act, about which he has written numerous articles, given many panels, and has testified as an expert witness.