Studio Legale Bonomo e Associati

In the profession and in private

Dettagli

Pubblicato Lunedì, 18 Gennaio 2016 16:25

Scritto da gbonomo1

Interview with Giovanni Bonomo, new media lawyer active in the Information Technology law.

 (by Paolo Corticelli - Corticelli Comunicazioni s.a.s.)

Protection of performing artists

 P.C.  What does anyone venturing into the performing arts world need to know?

 G.B.  Having prior information means saving both time and money.  Before beginning any activing in the performing arts, the artist should be familiar with the necessary legal requirements, so as to be not only in compliance with the law, but also in a position of strength when it comes to negotiating a contract (with agencies, stage managers, show organizers, producers, etc.). Thus, the artist will already be able to deal with minimal issues, and to avail himself of legal counsel only for more complex issues.

 P.C. What are the basic rules of behavior for someone undertaking an activity in the performing arts?

 G.B.  Here, I would simply limit myself to some legal advice in terms of fulfilling legal requirements.  Generally speaking, an artist, even with a bare minimum of experience, knows how to assess his interlocutors, and therefore distinguish between real and bogus stage managers, how to display his talent in audition settings, and to basically decide the way to behave in the various situations, without needing my advice.

  P.C. First of all, how can we describe the work of a performing artist?

 G.B.  The reciprocal duties between artist and employer are set down in a contract, which in turn has to comply with civil code reules and the special legislation governing labor. Said legislation, together with the various social security provisions, are usually spelled out in the collective bargaining contracts pertaining to collective labor categories. Then there are laws governing authorship rights that protect the artist also outside the sphere of his labor relationship, ensuring him a so-called equitable fee for further utilizations (that is, utilizations beyond the performance in which the artist exhibited himself).  The latter consist in audio/video recordings of artistic performances. Regarding the enforcement of these authorship laws (art. 80 - 85 quinquies l.d.a.), governing the protection of actors and performing artists, I refer to an article of mine (http://www.bonomonline.it/blog/53-protection-of-acting-and-performing-artists-rights), commenting on the law (Legislative Decree 68/2003) which incorporates EU Directive 29/2001/CE (the situation, therefore, is in line with that of the other EU countries, which have similarly been obliged to incorporate the same EU harmonizing directive). 

First of all, before stipulating an "artistic contract" (the term comes from the theatrical tradition), the artist has to first be  categorized as a "show worker". ENPALS is the agency in charge of enrolling "show workers" wanting to exercise their own activity, and to officialize their position as "contractual parties" when entering into any "labor contract". Once enrolled, the actor, musician, dancer, choreographer, piano-bar performer, etc., has to respect all relative labor laws, pay taxes, and contributions into the pension system.  Such is the case even when he or she performs either in a non-habitual, or exclusive, way (except in the case of purely occasional performances).  I would point out that this obligation is also binding on those who already engage in other types of work, and who are enrolled in the other state social security plans (such as the INPS or the Casse Previdenziali). Those enrolled in ENPALS receive a certificate that has to be exhibited prior to every performance, as it attests that the artist is enrolled in said organization and is lawfully entitled to work.          

 P.C. But, in this way, is the show worker an employee or a free-lance worker?

 G.B.  In Italy, as in all EU countries, the relationship between show worker and organizer/manager is categorized, according to the various cases, either as an employee or free-lance worker. In the former case, it is up to the organization to fulfill all tax, social security, safeness obligations, etc.  Whereas in the latter, this is up to the artist, who has to organize himself autonomously, and set himself up as a company, so as to qualify as a "performance company", and subsequently pay social security contributions.  ENPALS, in fact, does not issue safeness certificates to individuals, except to members of actor cooperatives, musicians, dancers, etc., as in said cases the cooperative itself is perceived as being a company (limited responsibility cooperative company). I would point out that substance prevails over form, in that the binding labor regulations, in protection of the worker, take precedence over directory contractual regulations; when, that is, in the performance of his labor relationship the artist, no matter how episodic and non-ongoing his performances may be, is subject to the directives of the organizer/manager, what applies is legislation relative to subordinate-type employment.  Thus, it is useless to apply for a VAT registration number to start working in the performing arts sector, unless one has considerable financial resources. I believe that the best solution for the artist is to be contractually hired on as a subordinate worker.  Suffice it to think of the fiscal advantages, and of the reduced responsibility should one find himself, through no personal fault, in a position of not being able to execute his performance, of the added social security benefits, and of knowing exactly when and where to perform thanks to pre-arrangements by the organizer. To the "free spirits," who bristle at whatever direction of their own artistic activity, there is therefore open the alternative of the cooperative-company arrangement. 

P.C. What are the labor-contract features for movie actors? 

G.B. The same holds for what I said about an actor normally establishing a subordinate-work relationship.  More than any other artist, the movie actor is subject to directing criteria of both the film director and producer, because his performance is conditioned by filming and its relative needs.  Unlike theater actors, whose performance is usually expended in one, albeit replicable, real stage performance, the movie actor performs in view of recording his performance on a material support: the cinematic film.  Then, influencing the work relationship are the actor's qualifications, even in terms of the aformentioned law (Legislative Decree 68/2003) regarding reform of authorship rights in reference to performing artists and actors, who are entitled to a so-called equitable recompense only if they have performed a role of considerable artistic importance (art. 84 comma 2 l.d.a.).

However, the considerable artistic importance criterion is not sufficient to delineate the notion of "actor" which would unreasonably exclude character actors, impersonators, starlets, etc., that is, so-called second-rate actors, who are distinguished from the so-called first-rate actors. The distinction dates back to 1936, the year when the national collective bargaining contract for movie actors was signed. According to this contract, leading actors are those who "have the most important role in films for which they have been contracted", and second-rate actors are those who "complement the action of the leading artists by contributing something of personal importance to film-action episodes". Actually, there does exist a role hierarchy, within the broader definition of "actor," which starts from the leading actor and goes all the way down to the extras. Properly speaking, one is an actor/artist only when playing a "part" that is relevant from the standpoint of plot, or from that of the dialogue interplay as set down by the director. This definition, however, excludes "extras", "bit-players", "walk-ons", "stand-ins", "choralists", who are all allotted a different pay scale in collective bargaining arrangements. The duration of a contract, too, depends on the type of role that is played.  However, the topic is too vast to be properly addressed in an interview. 

P.C. How can the artist, confronted with the myriad cases of false promises, assess the credibility of an agency before placing his trust in it? 

G.B.  First of all, you realize that you are dealing with a serious agency starting from the way in which you are received.  If you are asked to pay a membership fee, or to sign some mysterious-looking contract for acting or diction courses, certainly the agency in question lacks credibility.  A bona fide agency earns its money exclusively on the percentages of work performed by the artists it represents and promotes.  Furthermore, acting and diction courses are offered by appropriate schools.  Therefore, as a first rule, I would advise against paying or signing anything.  This can easily be done later, and only in the presence of clearly legible services written down in the contract.  A common error that would-be actors commit is that of seeking an agency with the dream of landing contracts with famours directors that the agency is expected to provide.  Better, then, to devote the same dream time enrolling in a serious actor's studio and improving one's acting abilities. Then, in terms of relationships with agencies, there is the matter of exlusive rights that can be asked of an artist.  This is normal practice with almost all agencies, which would not otherwise be able to promote an artist who is not entirely available, and, in turn, offers certain guarantees.  On the other hand, once a serious agency has been found, there is no need to look for others.  If the artist, once he has turned to an agency, truly felt neglected for too long a period of time by the latter, he could challenge the agency on the grounds of default, and then turn to another agency.  However, it is necessary to take into account, before initiating groundless challenges, that in the vast majority of cases agencies have nothing to do with the fact that an actor fails to land a contract.  Similarly, as it is not easy for each actor or actress to find the right agency, neither is it easy for agencies to find producers or directors who are interested in the roles offered by a given artist.  Then, an artist also has to be aware that, in agency-prepared contracts, he will find clauses bearing on fee percentages of their performances to be paid the agency.  Usually, this amounts to a percentage of the gross wage earned: 10 percent in the movie field, and 20 percent in that of advertising.  This constitutes a normal and by now consolidated praxis, there as yet not being in Italy any specific legislation in this area. 

Professional experiences

 P.C. Your work as a lawyer is not limited to authorship rights or television network consultancy.  I know, for example, that you have dealt with a well-know case of domain grabbing, on behalf of a company that operates on the Internet. 

G.B.  I think you are referring to the case, cited in legal case histories, of two companies that had the same denomination, except for the final suffix (top level domain), of ".com" in the former case (my client), and "net" in the latter: this does not suffice to avert the charge of name and title usurpation.  And, being duly mandated by my client, I took action against said usurpation. By winning a verdict favorable to my client, I simply helped to consolidate a legal orientation, regarding the protection of distinctive symbols on the Internet, one which was already under way.  But, there are other trials that I recall with passion; the same that came out during the defense phase, and which springs from a spirit of service on behalf of the weak and oppressed.  It is a spirit of service that should always accompany a lawyer, even one having a consolidated clientele. 

P.C. That sounds right. Could you give an example? 

G.B.  I vividly remember that law suit brought by a client of mine, a woman living on a pension, against a condominium, and against the latter's well-known and powerful insurance company, when she slipped on a flagstone on the condominial path.  Actually, colleagues of mine warned me that the case was a loser from the start.  These colleagues included my father, who has always been my mentor and a professional point of reference.  He in fact told me, jokingly, that he would forecast the outcome of the trial, seal it in a envelope, and turn it over to a notary, who would then open it after the final verdict was actually reached, thus proving the artless authenticity of such an easy and sure forecast.  And, in effect, the so-called "hazard and pitfall" laws referred to public roads, and there were no precedents except for extremely special cases. However, having won a verdict acknowledging that compensation was due my client, I got everyone to change their thinking. But most of all, I helped establish a significant precedent in terms of an innovative legal approach in favor of accidents occurring on private roads.

Another difficult case, which I eagerly threw myself into, and which I just as eagerly recall, was a defense case, appointed and entrusted to me by the Milan Court, of a pensioner, former famous actor-dubber, who had to continue paying alimony to his ex-wife, long after he had been divorced. Meanwhile, his wife had remarried a man who was economically well-off.  The reason for the alimony request was to support a daughter,  by then purely biological, and merely on the basis of a claim of parental responsibility. A claim that in this case was utterly inappropriate. My client had been unsuccessfully defended by two previous lawyers, with the only result that the sum of the alimony had been increased.  After a final hearing held on Christmas eve, the presiding judge of the Court supported my defense, thus accepting the claimant's version: it was so considerably reduced the amount of the alimony in line with my client's effective income. 

Privately 

P.C. I know of your fondness for athletics, martial arts, poetry. 

G.B.  Of course, especially for gymnastics, both of the physical and mental type, and for jazz, which enables me to "feel" life joyfully and humorously, with the soul of a musician, which I am a bit.  I have competed quite a lot in Nordic skiing events, a sport for which I have a boundless passion. When I'm skiing I feel more Finnish than Italian. I can follow the ebb and flow of things and perceive life in its alternating between two opposite but complementary forces: Yang and Yin, according to the Tao and ancient Chinese culture. These forces represent cosmic becoming, the universal cycle and order, the unity of opposites according to Heraclitus, and the infinite.

As for poetry, if real poets like Gozzano shielded themselves from the attribute, I shoudn't even dare to write in verse. But my love for poetry springs from, and it is contained within, a theatrical more than a literary dimension… 

P.C. That's true, I could recently appreciate your videonota so fun because unexpectedly not about law but declaiming the "Ballata" of Ernesto Ragazzoni in a masterful interpretation! 

G.B.Io fo buchi nella sabbia... you can read it as the comic counterpoint to the too serious attitude of overwork that is present in every profession, on those people who can not enjoy life and enjoy a healthy break. Obviously real poetry is something else. Privately, I like to dabble in translations of poems by E.A. Poe, E. Pound, T.Dylan, and even by some German poets, trying to preserve the rhyme and to capture their spirit and musicality, if not the letter of their writing.  These experiments are in a way a homage to my mother, Lorenza Franco, who is especially well-known for her translations, in perfectly rhymed hendecasyllables, of Shakespeare's Sonnets. My mother who, in the field of literature, is a guiding light, as is my father, Aldo, in that of law. Furthermore, these experiments are useful, in terms of mental training, also for my profession.  After all, that poetry is also a bit theater, and that theater is poetry, is borne out in Umberto Eco's well-known definition of "actor": "a multi-channeled network of messages having a poetic function". 

P.C.I also know of many cultural battles for the freedom of thought, having been among the authors presented in your literary circle, and for the public health. 

G.B.  The reasons that led me to found the Comitato Nazionale Amianto Eppur si muore in defense of environmental health, are no different from those that led me to found the Centro Culturale Candide in defense of mental health. This is a primarily duty, that is to spread the correct information also through the presentation of complaint-books, such as the resounding CAPITALESIMO, il ritorno del feudalesimo nell'economia mondiale, of the economic and financial journalist Paul Gila.

Already in the title Comitato Nazionale Amianto Eppur si muore emphasizes, in the homophonic  Galileo Galilei's quote, the empirical evidence of a given mortality that gets overlooked, and that is due to the failure to remove asbestos littered in the countryside, in industrial sheds and in the cities down town too (buildings, schools, even hospitals). After thousands of deaths from asbestos are in fact now we citizens - not just factory workers who had to handle asbestos - the unaware victims who can get sick by breathing the accidentally airborne fibers: even a few of these artifacts abandoned asbestos-cement can lead to disease. The Comitato has its own Facebook group too and works in synergy with the committees that already exist, including the O.N.A. Osservatorio Nazionale Amianto of the fellow lawyer Ezio Bonanni and the Michele Michelino's Comitato per la tutela della salute nei luoghi di lavoro e sul territorio.  Remains dramatic and scandalous that this issue and environmental emergency has not been adequately discussed more than twenty years after the 1992 law on asbestos ban, by the politicians, by the institutions or by the most of the organs news reporting, but he had to be a writer, Angelo Gaccione with its own magazine ODISSEA, to raise and publicly denounce this serious problem. 

P.C. Thanks lawyer Bonomo, we are on the same wavelength for the common commitment to the defense of the Italian language, that is the ground of the art of argumentation and of communicating effectively, and you teach me that the true role of the intellectual and socially engaged, whether journalist or lawyer, is the defense of civil society even before of every citizen.

  -  End of Interview -