INTRO
Welcome to Artful Conversations – a podcast about arts and cultural management. Annetta Latham and guest hosts interview leaders who help shape the world of arts and culture. We share their stories, their insights and observations. This season has been brought to you with the support of the faculty of fine arts and communications at MacEwan University.
ANNETTA: Welcome to Artful Conversations. I'm your host, Annetta Latham. Today, my guest is Martin Boersma.
Martin is an entertainment and media lawyer with Taylor Oballa Murray and Leyland LLP, located in Toronto, Ontario. Joining the firm in 2021, Martin primarily advises clients in film, television and other audiovisual sectors. Additionally, he assists on a range of corporate and commercial matters for the firm's creative and entertainment clients. Martin holds a BFA with distinction in theater performance from Concordia University and an MFA in acting from the School of Drama at the New School University in New York. Martin received his Juris Doctorate J.D. from Western University and was called to the Ontario Bar in 2021.
Prior to becoming a lawyer, Martin worked in the theater and film industry as an actor, fight director and stunt performer, both in Montreal and New York City. Martin continues to be engaged in film, theater and stage combat communities in both Canada and the US.
ANNETTA: Welcome Martin. It's great to have you join us here at Artful Conversations.
MARTIN: Thanks so much, Annetta. It's so nice to be here talking to you.
ANNETTA: So the big, big question that I always get asked is what is arts law? And so can you provide us an overview, a Reader's Digest vision overview of what arts law incorporates? Like, what is it?
MARTIN: I mean, I can certainly try arts law as a as a term isn't exactly something that I would say is thrown around sort of in my circles in legal industry. You'll often hear people talk about media and entertainment law or contract law or sort of corporate law that maybe deals with arts focused organizations. So broadly, what I would say arts law is, is just the body of law that deals with situations encountered by individuals or entities who are engaged in the practice of, you know, the arts sphere. And we can get into what counts as the arts sphere, maybe on a different day, but broadly that would probably fall under arts law. And within that, to give a little more context in that answer, it's going to deal a lot with intellectual property because that's kind of what arts is. It’s the process of creating intellectual property, at least from a from a legal point of view, there's going to be a lot of contract work in there, a lot of deal making. Individuals will also get to the point where we're starting to deal with corporate law as we move into maybe more sophisticated entities that that are trying to deal with the benefits of protecting themselves behind a corporate veil. And you can range from you know Geoffrey that wants to play drums in a band. He has legal needs that would fall under arts law. And, you know, the National Museum of Canada is, has also needs that will be very particular to their situation that I would say fall into arts law. Broadly that's the big thing. Particular needs for artistic individuals.
ANNETTA: Okay, that's a good summary.
ANNETTA: As we mentioned in the introduction, before you went into the law practice, you were performing artist and in the performing arts sector, you know, you were a fight director, never met a fight director in my life, by the way, and a stunt performer and an actor, you know, that all sounds really amazing, and you did a lot of education around that kind of side of your career. So, what inspired you to make the transition out of that kind of world into law?
MARTIN: So the decision to go into law for me was sort of a decision that was borne out of getting to a point in my career as an artist where I was looking at the trajectory of my career and seeing, you know, where similar individuals had ended up and trying to decide if that's what I wanted to do. A lot of the, I mean, the reality of the arts industry is that it's a gig economy. It's, you know, not the most known for stability and whatnot. And so I started to as I started to get developed, I started saying to myself, well, I really like what I'm doing, but I think I'd like to prioritize a little more stability for me. And so I started thinking, well, hey, how do I have… what transferable skills do I have? How do I have the ability to take all of the work that I've put into this career and not have to start over? And I had been in New York City working with a company that hired professional actors as interpersonal skills coaches and speaking coaches and mock witnesses for law schools and for early associates at law firms for, in the States, they call it deposition, here, we call it discovery. And so through that, I'd had a little exposure to the legal industry, and I kind of thought, well, this is interesting. And I think that I could at least do the skills that I, you know, ostensibly training people to do in that context. And so that became a blip on my radar that as I sort of honed in on, “hey, what do I want to do?” Became something that I thought, well, let's, you know, take a shot. And, here I am years later. It was a really a happy… a happy set of circumstances that led me coming back to arts law. Going into law school, I, I really sort of had sort of resigned myself to thinking, you know, I will practice arts and continue to be an artist in an amateur capacity and I can keep that a separate part of my life. And I'll see where, where the world takes me. But, I mean, it seems kind of inevitable that my, you know, my set of interest is what it is. I was really drawn to things like intellectual property. And then I was really drawn leaving law school into wanting to focus on that and so, when the opportunity came up to come into media and entertainment law I kind of thought, well, yeah, this is, this is my world. These are my people. This is my jam.
ANNETTA: Yeah, and I guess it's, it's that thing about, you know, you never lose your background and all those things can be an asset as you move forward into new careers. I had a wonderful mentor when I first kind of started in the arts world who said, As soon as you can afford it, buy a house because you might not be able to afford it in a couple of years time. But if you can afford it, buy a house. Best advice I was ever given, because as soon as I mean that, you know, we're talking about like a thousand years ago when houses were much cheaper and she was right. We bought a house as soon as we could get the deposit together and it, it set us in good stead. Because did. It is like you say, it is a, it is a bit of a gig economy and then you can get a thing like COVID that puts a bump in it. I'm pleased you were able to continue working with your people and you know that your arts background was able to kind of merge into a new career, new direction, which I think is really important for some of our listeners to not think, oh, you know, it's a whole restart. In your law practice, what do you are finding that are the main kind of concerns that your clients are dealing with? Like what's the kind of question that, you know, if it's like a thousand questions, what's the top two questions they're constantly asking you?
MARTIN: So my practice focuses mainly on film and television right now. The firm that I am a part of has sort of two bents to it. There's the music side, which is a whole world unto itself. And then there's the film and TV side, which is also pretty specialized. So I'm dealing with sort of clients at the two extremes of the spectrum. The bottom side will be people who have, say, concepts for shows or television series that they've written. And the simplest question is just someone coming and saying, “hey, like, I have a concept for a show, what do I do now?” And the response is really, well, you're not at the point necessarily where I have, you know, an answer to you that is legal advice here. Welcome to the business and the industry. You're working with that. But then all the way up through the process of once a creator sort of gets interest in their work, they start going through the development process. Whether you're bringing in new writers to talk about that, then you start getting into questions of like joint authorship and you start getting to the point where you sort of want the structure of the sort of legal framework behind everything to be well thought out. And moving through that, we get into development, whether they start shooting a pilot, trying to shop around to networks, broadcasters, trying to maybe do co-production with other more established producers. Once that gets then picked up, I have clients that are in the process of making films, so lots of production legals for all sorts of films whether it's higher budget things or smaller indie films that are more fledgling producers, more… newer to the industry. So on top of that, there's financing. People are trying to get distributing deals. And then at the high end, we're also dealing with the financiers. So the people who are providing the money and helping these films get built in exchange for, you know, some sort of compensation on the back end or some sort of the interest.
ANNETTA: So give us an example of something that's tricky to navigate in your world.
MARTIN: I think one of the trickiest things to navigate from my point of view is that a lot of the clients that I have is that their specialization is on art, especially whether it's on writing or creation. And so people often don't necessarily know what they don't know. And so can come in with their questions and have an incorrect idea of either what stage of the process they are at or what their next steps should be. And oftentimes people come in and are really fantastic, are very open to learning and taking advice as to, sort of, hey, this is what the actual lay of the land is for the moment. Let's work from where you are. And sometimes you'll get people who are a little less receptive to that. I think that's one of the just realities of the world that some people are more confident in in their point of view.
ANNETTA: So what's the value and benefit of an artists or an organization working with an arts lawyer? Like, you know, apart from it's a big bill, you know, people it is a its money. It can be a big bill. So, what's the point? You know, the to the to you know, I have a lot of I talk to the students a lot and say. Pay for an hour. Pay for an hour of an of a lawyer's time because it may save you a lot moving forward. But from your perspective in relation to getting artists and organizations to consult with a lawyer, what's the value?
MARTIN: So I think that the first thing regarding this question is it… it's already sort of focused on… I want to say this as nicely as possible. Sort of the less sophisticated sort of entity or individual that's really coming. And in sophistication I don't mean like intelligence level, I just mean, you know, a big corporation often will have their own in-house counsel and so already recognizes the value add that having a specifically entertainment or arts focused lawyer brings. And it goes back to what I was saying before it's that it's the specificity of what your job is. If you're an artist, your job is to be an artist. To create, to produce. It's not to know the law. It's not to know the specifics around that. It's really useful if you do. Don't get me wrong, I like I highly recommend that at any artists or people in the arts industry out there do a little to educate yourself on the ins and outs of the sort of legal framework you operate in. But it's the lawyer's job to know the law. And so, I think the real value that talking to a lawyer and talk to a lawyer early is that it sets you up so that you have at least a map. A partial map of the landscape that you're about to enter into and travel with.
ANNETTA: So let's put it into an example of when someone can when you think someone can connect with a lawyer. So, I'll give you an example. So I've written a children's book and it's a children's pictures book, and I was at an educational institution the other day and they were looking at they work a lot with gaming staff and creating games and in passing one of the conversations was, oh, I should actually take my little children's book character and turn her into a game and make a game around her and build a game around her. And, you know, and then I had another idea of being able to use a piece of teaching that we're doing, which is a First Nations walk and going, Oh, how could we how could we do that? Walk and film this? And kind of using that game technology and using the knowledge from the First Nations people and be able to kind of create this kind of gaming platform. So, in relation to both of those two things, if they ever were real, when should I contact a lawyer?
MARTIN: So the inevitable and obvious caveat, all of any legal situation is very fact dependent, is very situation specific. So, nothing that I'm saying right now is in anyway, any sort of legal advice, even if your situation is very similar to that. We're just talking for the purpose of this podcast.
ANNETTA: Yeah, we really are. And my examples are only examples.
MARTIN: So I always say that the time to talk to a lawyer is the moment that you have a thought, hey, should I talk to a lawyer about this? You probably should have talked to the lawyer last week. There's absolutely no harm in talking to a lawyer. And having them say, hey, you don't need me at this point. And as much as sort of the mythos around lawyers is these, you know, scary money hunting, bloodsucking ambulance chasing individuals. Lawyers are people. And often times, if you're in a situation where you reach out to a law firm and say, hey, can I have like 15 minutes, 5 minutes of your time, I just want to, like, let you know where I'm at. And check to see if I need to hire you yet. I mean, some. I'm not saying all firms will give you, you know, 5 minutes free, but at the end of the day, paying for a 20-minute phone call to be told, hey, it doesn't sound like you need me yet, but once you start doing X. Come talk to us. Is really worth it in the long run.
The reality of the world is not everything that is done improperly or illegally or, you know, not absolutely to the tee gets quote unquote, punished or, you know, sees a negative repercussion. And so it's really easy to look at certain situation and say, well, like I did it this way and it worked out fine last time. Why would I need… why would I need to get advice? I already did it once. But just because you didn't, you know, get stung that first time doesn't mean that t's not a possibility moving forward. The money that you spend now, in talking to a lawyer, you can think of it as it's insurance so that you don't have to spend way more money later solving a problem. It’s so much easier to pre-empt a problem with a little bit of a work than it is to come in halfway through or well into the issue and then have to do all sorts of figuring out and working backwards and then trying to solve issues.
ANNETTA: So in relation to that first 20-minute phone call, what's the best advice you can give someone to be mindful of what they are asking for? Like, what do they need to kind of ready themselves for that first phone call kind of thing? Because I know I've got a lot of listeners out there saying, well, what do I ask in my 20 minutes?
MARTIN: Right. What do you ask in those 20 minutes? Well, I can't exactly say, you know, what you should ask? Depends on your situation. Having a really clear idea of what you want to do is really useful. Whether it's that you want to, you know, work with a friend to create a business or an app or a situation that's going to set something up to do… to accomplish a specific task or whether you, you know, have a script or a piece of art and you want to exploit that in some way. Having a clearer idea of where you're at, who you've been talking to, what the possibilities are, and specifically what you would like to ultimately be the outcome is really useful. It's really nice for someone to come in to me and say, hey, I want to paint my car blue. How do I go about that? And then I can talk about that. But if someone comes and says, Hey, I think I kind of, you know, might want to make my car look different. Suddenly we're in a vast realm of possibilities. And then we have to take some time to pick that apart and say, well, what do you mean by that? What does “different” mean to you? You know, this is that's a very abstract hypothetical.
ANNETTA: No, I know it's a good one, though. So come with the information, the clean information, so you know what you're doing.
MARTIN: Yeah. Absolutely. and be open. Open to, to being asked questions by the lawyer. If possible, try to send out like a brief outline in advance so that the lawyer can maybe look at it. And, and if you're way off base that way, they can say, hey, you know what? Like, give me a little more specifics on this so we can prep for the call.
ANNETTA: Okay. And it's not going to the principal's office, really, is it?
MARTIN: Oh, no, no. At the end of the day, like we're working for you. The law profession is a service industry. Yeah, that's another thing that I think sometimes feels like a big barrier for people. It's like, Oh, I'm going to talk to a lawyer. And they're so, you know, highfalutin and sophisticated and I feel like I have to be very proper there. One of the things that I love about arts law is, I mean, everyone's artists here, like I don't know that I've worn specifically a tie to meet with a client in quite a long time.
ANNETTA: I don't think any of us have worn ties for quite a long time.
MARTIN: That’s true. Right.
ANNETTA: One of the things that is kind of interesting to me as a new Canadian is does the law actually differ from one province to the next? And does it differ internationally in relation to arts law and like copyright, moral rights, and just for everybody, we don't have the time right now to get into what is moral rights law, what is copyright. We're just don’t. They’re there in the real world. Please google them if you want to. But you know in relation to some of those things that do sit in arts law, really, a lot in arts law. Is there a difference across the provinces?
MARTIN: So with the caveat that your question was actually multiple questions in one. Yes. Copyright law, specifically in Canada is a federal law. So, the Copyright Act applies uniformly across all of the provinces. The United States also has their own body of copyright law. And there are differences. Like, really simple differences is just the term of copyright in Canada. In Canada, copyright subsists for the life of the author plus 50 years. In the States, it's 70 years. We recently saw what would have been the late 2010s, 2018s with the big U.S. Mexico-Canada trade agreement? There was a big push in that for the U.S. to extend their term to 100 years. So little differences like that can make a big difference. There are differences in how moral, moral rights and other aspects take their form. Generally, across the world, there is some sort of an effort to at least make copyright applicable in most countries. There's an international convention called the Berne Convention that in a very dumbed down version, basically says that if one country affords copyright protection to something, the other countries will endeavor to match that. So, if your works get infringed in Brazil, if Brazil is a signatory to the Bern Convention and etc., etc., they are covered there.
ANNETTA: Yeah, it is really interesting. In one of the ways for listeners to think about it is Beatrix Potter and the lovely Peter Rabbit. Her 70 years past her death because the copyright in the UK is 70 years past death has come up and for those of us that kind of were in the know, we were all like, oh, what is going to happen to this to these lovely characters? And you kind of thought, here we go. And it was really interesting to see just little subtle shifts. And, you know, the same thing has happened with Winnie the Pooh. And, you know, suddenly if you watch a cartoon of Winnie the Pooh, suddenly there's a whole other character and you go, where have you come from? But it is it comes back to the copyright has expired. But we're not going to go into what Disney's done with Winnie the Pooh. That's a, it's a podcast for another day.
MARTIN: There's a Winnie the Pooh horror movie as well. An interesting thing, perhaps, for the listeners there are I don't know the specifics, but there are websites out there that sort of track like what's coming into the public domain every year. And so at the turn of the year, every year, you know, a whole body of works will have come into the public domain.
MARTIN: And when I say public domain, we won't get into that. But yeah, but people can Google that Google public domain.
ANNETTA: Yeah. I know people can Google it. But just briefly, in one sentence, what is public domain?
MARTIN: Absolutely. Public domain is. So when we say copyright, a copyright is a very simplified version, the right to copy and make use of and exploit any sort of particular work. You know, an example is a book that I've written. Once that copyright term expires, I no longer have the sole rights to copy and use that. So, a good example is things like Shakespeare's plays. Shakespeare's plays were written 400 years ago, so that the copyright in those plays has expired, which means that anyone is free to make use of those works.
ANNETTA: So that's so just for everybody. That's kind of when you're free to make use of them, that's where it kind of sits in the public domain. And that's why you see a very, very horrible detail of Van Gogh’s lovely, lovely artworks all around the world. And you can see them in odd places. So, we've given a very kind of brief summary of that, but thank you for that. What I want to know in relation to that, though, is when someone writes a contract and ‘cause you work in film, so I imagine there's lots of players internationally. So, if someone's based in New Zealand and then someone's based in Scotland and then someone's based in Toronto, where does that contract sit? Does it sit in Canadian law? Does it sit in New Zealand law? Does it sit in UK law? How does that work when you have multiple players? You know, because a lot of our listeners have artists that they are working with across, you know, collaboratively that are that are across international boundaries.
MARTIN: So there's a whole body of law called conflict of laws which gets into the sort of specifics of what happens if that's not decided upon. The simplest way and the way that the way that's that everything that sort of gets set up in advance is what should be done. Is that's specifically decided on by the parties. So, you know, my firm’s based in Toronto. We do a lot of work with U.S. entities. And there will be a specific clause in most contracts that says, hey, this contract is governed by the laws of Ontario and the federal laws of Canada that apply therein. So, all the parties agree this is going to be based on Ontario law and we agree that if there's a dispute, it's going to be handled by the courts of Ontario. And you can change that around. You can say this is handled by Bermuda law. Cayman Island law. Mars's law. Well, maybe not Mars law yet.
ANNETTA: It's coming. So, in relation to us kind of talking about barriers and, you know, like a lot of emerging artists and also emerging arts managers are kind of a little bit nervous around connecting with lawyers. And we have touched on this, for you what do you see as some of the perceived barriers and challenges for arts organizations and artists when it comes to considering engaging a lawyer?
MARTIN: So I think we touched on some of these.
ANNETTA: We did.
MARTIN: So, not to go over them too much. Things like feeling sort of intimidated by talking to a lawyer. To which I, again, to say, was a service profession. You're going there to, for them to help you. Yes, they may be charging you for that, but there's no harm in going to say, hey, can we talk? And then if someone or if a firm says, sure, this is our fee to talk and it's outside your price range, you can feel free to shop around and talk around. Once you step foot in the lawyer's office, it's not like. “Ha—we got you! You owe us money”. An additional barrier, like I said, is just not necessarily having a clear idea of the value that a lawyer can provide, in giving sort of that advice and that opinion.
ANNETTA: I mean one of the things that I come across quite a bit in my professional practice is the everybody's a pseudo lawyer. Everybody seems to think they know the law. And it's I find it a really interesting conversation. This is a conversation I have repeatedly with arts boards where I say by an hour of a lawyer's time and I've said this earlier in this podcast, but one of I think one of the barriers and I'd be interested in your take on this is the assumed knowledge that we think we have of the law based on.
MARTIN: Absolutely.
ANNETTA: Television and what media, you know, it's like education by sitcom.
MARTIN: Absolutely. Absolutely. And, you know, it's really interesting, the big Johnny Depp Amber Heard deposition trial just happened. And the really interesting thing happened in that because it was widely televised, it was seen across the world. And I think what sort of happens is when people watch something like this that gets televised, people sort of forget that, hey, this isn't a movie. This isn't like a scripted drama. This isn't Law and Order. This is a real thing that's happening. And when you watch Law and Order, you know, the job of the writers for that is to make you forget that it's a made up story. And so it's really easy to look at that and say, Oh, yeah, well, that's the way it happens. And that just means the writers have done their good job. But there's no writer in these, you know, this publicized event. And so, people start to feel like they have a familiarity, with the process when there's actually lots going on behind the scenes that you're not aware of. And this is why you're saying buy an hour of a lawyer’s time. Because it's their job to know the things that are going on behind the scenes. And it's their job to advise you on those things. The things that you might not necessarily know.
ANNETTA: So are there any key resources out there that you think would be good just for the amateur to kind of have a look at this?
MARTIN: Yeah, absolutely. So, I kind of would separate them into two different categories. One is self-education resources. And then the other would be sort of legal resources that are more like organizations or clinics where you could go to get either cheaper or free legal advice. In terms of self-education resources, my plug for the music business, there's a book it's called All You Need to Know About the Music Business by Donald Passman. This is sort of what I recommend to people to pick up if you want a lawyer's perspective on the music industry. That's a really good spot to start.
ANNETTA: So to the listeners, we will put a reference to that book in the transcripts on the website.
MARTIN: In terms of just broadly, a little knowledge of copyright law and intellectual property law is also really useful. There's all sorts of books that you can find out there on that. In terms of Canada, specifically, one I'd recommend is called Canadian Copyright: A Citizen's Guide. It’s by Laura J. Murray and Samuel E. Trosow.
ANNETTA: Okay.
MARTIN: I'm assuming you'll have a reference to that. And then there's all sorts of books on the specifics of, you know, the business of television, the how to negotiate contracts with a music agent, with a writer, with the network. I might afterwards I'll give you another sort of list so that don't have to talk about. So that I don’t have to say them all. No, but that's really, really useful. The Government of Canada has the Intellectual Property Office. Has sort of a general overview of intellectual property law on their website, which is worth a read for individuals that are getting into this and want to come into it a little more educated and that will, again, really help when you start to talk to a lawyer. Because either you will have a good grasp of it and will be able to understand the concepts you're talking about, or you may have a misinterpretation which the lawyer can then maybe point out to you.
ANNETTA: This is wonderful.
MARTIN: In terms of some organizations that you can look at. There's the Canadian Artist’s Representation, CARFAC, the French half is Le Front Des Artistes Canadiens. That's at carfac.ca. In Toronto, there's the Artists’ Legal Advice Services. I know in Vancouver, there's a clinic called Artists’ Legal Outreach. The East Coast has Nova Scotia Artists Legal Information Society. If you sort of just Google in your area, you know, artists, legal clinic, artists, legal assistance, free legal artists clinic, obviously don't trust everything that you find on the Internet, do your research, etc. But the sort of access to the legal industry is a known problem that many individuals or organizations out there are trying to work to alleviate at least if not solve.
ANNETTA: This has been a wonderful conversation and there's so many areas that we could talk for on and circle back to. But as we're wrapping up, what is the most rewarding aspect of working in arts law for you?
MARTIN: Oh, for me, it's just being in the creative industry. I absolutely love the passion that people have for everything they do here for their projects. People really have an investment in the things they create in a way that I think makes the industry feel very personable to me. And being a being a performer previously and still an amateur performer on the side, I just really like knowing that, hey, because of what I'm doing, what I'm doing, someone's in front of a camera or so behind a microphone or, you know, something is going to go up on a wall somewhere. And I think that satisfies the artist in me to a little degree.
ANNETTA: Oh, that's wonderful. And to our listeners, we've had at MacEwan University Arts and Cultural Management Program. We've had the privilege of having Martin write our Arts Law course which will be taught for the first time in Winter 2023. So, you know if you're looking around for something to do, enroll in the course. And so, you know, it's been wonderful knowing that all of this knowledge that we're talking about now is being able to be embedded into that. I'm incredibly grateful that you've been able to and willing to share your knowledge with us and with our students. Is there anything that you would like to add to the rest of this conversation to our listeners?
MARTIN: There's a lot of planning and sort of uncertainty that can go into any sort of situation where you contemplated bringing in a lawyer. Don't be afraid. At the end of the day, lawyers are here to work for you. And we're all people too. The hardest step is the first one. And there's no harm in again, like I said, talking to a lawyer and having them say, you know what, you don't need me right now, but you're on the right track.
ANNETTA: Well, it is wonderful. Martin, thank you for your time. I really appreciate it.
MARTIN: Absolutely. Thanks so much for having me Annetta.
OUTRO
This show was created by executive producer and host Annetta Latham, Technical Producer Paul Johnston and research assistants Terri Le Gear, Micah Carter and Ian Small.
Theme music by Emily Darfur and cover art by Constanza Pacher. Special thanks to MacEwan University for their support and to our guests. Arts Conversations is a production of Artful Creative, all rights reserved.
REFERENCE
Latham, A. (Executive Producer and Host). (2022, November 16) [Season 3: Episode 07]. Martin Boersma. Podcast retrieved from: www.artfulconversations.com/season-3