Exciting and creative enterprises they may be, but festivals nonetheless face plenty of legal pitfalls. Shivaji Shiva considers some of them.
This summer will see a wide range of arts festivals, carnivals and melas. Such festivals often begin informally out of a shared desire to promote a particular artform, create an exciting event or simply have fun. At first they are likely to be promoted by one or more enthusiasts acting on their own account, or within organisations. As others become involved, the group is likely to coalesce into an identifiable committee and begin to develop rules. At some point, its likely that rules will start to be recorded and a constitution adopted. The catalyst for this may depend on a members desire to know the rules, the need to produce a constitution to access funding, or a desire to protect commercial interests. The committee now amounts to an unincorporated association, which comes into being whenever several people join together with a common purpose other than making a profit. The group will remain as such, unless it is established as a company or other legal structure.
There are two main disadvantages to such a structure:
Unlimited personal liability: the members of the committee may be personally responsible for any debts of the group. So, if the festival makes a loss the individual committee members may be responsible for paying the amount due.
Lack of legal personality: the legal fiction under which companies are treated as though they are people and can own property and take action in their own right does not apply to unincorporated associations. As a result, any assets which the association has will need to be held in the name of one or more members of the association, and transferred to different people if they stop being involved with the association.
If a festival association has developed to the point where it employs staff, undertakes contracts or is otherwise exposed to risk, it is prudent to incorporate the association as a company. It may also be appropriate to consider seeking charitable status. It is also important to consider whether the project would be better performed by a separately constituted trading subsidiary.
Another key issues to consider is intellectual property. Trademark protection is easier to obtain if a festival is launched under a distinctive name or logo. Where the name of the festival describes the nature of the festival or the place where it occurs, it will be more difficult to register the name as a trademark, as such names remain in the public domain. However, it may be possible to overcome this difficulty where a descriptive name has been used for so long that it has come to be associated with a particular festival. The names Glastonbury and Glastonbury Festival have been registered on this basis.
Where a festival is organised by more than one organisation, it is important to clarify the ownership of the name or logo. This should be done by registering the name, logo or other get-up as a trademark. The mark can be owned by either party and licensed to the other or owned jointly. The logo may also be protected by copyright, but trademark law provides much more powerful protection than copyright. Failure to register a name or logo as a trademark leaves it open to another organisation to register the same mark and attempt to prevent you from using it.
There will also be intellectual property in other aspects of the festival, such as copyright in promotional material. It is important to ensure that you have recorded the manner in which these materials have been created and that you have obtained copyright assignments where work is done by anyone who is not employed by the individual or company running the event. The copyright in work produced by an employee in the course of his employment is owned by the employer. However, this does not apply to self-employed artists, casual staff with no employment relationship or employees who are working outside the normal course of their duties. If in doubt you should get a clear assignment of the copyright in any work produced. Where the concept of the festival is not easily protected by copyright or trademarks, it may be appropriate to consider confidentiality agreements or other contractual arrangements to prevent suppliers or project partners from using your concept.
Shivaji Shiva is a partner in the Charity Team at Russell-Cooke Solicitors.
t: 020 8394 6486;
e: shivas@russell-cooke.co.uk;
w: http://www.russell-cooke.co.uk
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