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The U.S. Consulates Are Back–More or Less!

Friday, June 26th, 2015

By Brian Taylor Goldstein, Esq.   

After being unable to issue visas since June 9 due to a major computer system crash, the U.S. Department of State is now reporting that, as of June 25, 2015, 85% of the U.S. Consulates (approximately 165) are now operational and able to issue visas again.

Here is a link to the most recent status update from the State Department website:

http://travel.state.gov/content/travel/english/news/technological-systems-issue.html

The Department of Stating is further reporting that all consulates are now scheduling interviews, even if they are unable to issue visas.  If you are trying to schedule or re-schedule a visa interview, or determine if a specific consulate is able to issue visas, you should go to the consulate’s website for details and the most recent updates. You can find links to the websites of all U.S. Consulates worldwide here:

http://www.usembassy.gov/

A FEW THOUGHTS TO KEEP IN MIND:

1. Just because the consulates are coming back on line does not mean artists will be able to get their visas immediately or schedule emergency appointments. There is still a considerable backlog. Currently, the consulates are giving priority to those who have been waiting since June 9 and to those who have immediate travel needs.

2. Having an approved visa petition does not substitute for an actual visa. If an artist is unable to get a visa issued by a consulate, sending the artist into the U.S. on a B-1/B-2 (visitor/business) visas or through the ESTA (Visa waiver) program is not a viable option.

3. An artist can apply for a visa at ANY U.S. Consulate in the world. It does not have to be the consulate listed on the I-129 or the consulate in the artist’s country of citizenship. So, if one consulate is still dealing with a backlog, try another.

4. While artists should bring a copy of their I-797 approval notice to their visa interview, original I-797 approval notices are no longer required (and haven’t been for quite some time).

5. While the U.S. Department of Statue continues to express its deepest regret and apologies for the inconvenience, far more valuable is the lesson we can all learn from the wisdom of using the lowest bidders available to address any critical issue and ensure that it remains unresolved for as long as possible.

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

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Posted in Artist Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

UPDATE ON U.S. VISA DELAYS

Friday, June 19th, 2015

Hi everyone

I realize that this is outside of our normal blog posting schedule. However, understandably, there is a growing concern over the recent…and ongoing…computer crash that has resulted in U.S. Consulates around the world being unable to issue visas. This means that even artists who have been issued I-797 approval notices from USCIS are currently unable to get their visas from a U.S. Consulate. 

This is a worldwide problem and is not limited to only a few consulates. It is also not limited to O and P visas.

Unfortunately, there are no contingency plans. An approval notice alone cannot substitute for a visa and without the visa, an artist cannot enter the U.S. and perform (even for delayed or no payment.)  Until the computer system is fixed, visas cannot be issued.

The U.S. Department of State recently updated its website to say that they did not expect the problem to be solved before next week. Once the system is back up, priority will be given to issuing visas for medical emergencies and humanitarian cases. Sorry, concerts and performances do not qualify as humanitarian cases.

Here is a link to the current update on the U.S. Department of State Website:

http://www.travel.state.gov/content/travel/english/news/technological-systems-issue.html

For additional information, here is a link to information on the website of the U.S. Consulate in London:

https://uk.usembassy.gov/

Most major U.S. presenters and venues are (or should be) aware of this problem and are making their own contingency plans. Nonetheless, you should advise them of this situation if for no other reason than to make sure that everyone understands that this situation is entirely the fault of the U.S. Department of State and could not have been foreseen. (Step #1 in any crisis: assess blame.)

In the meantime, we are advising everyone to monitor the U.S. Consulate and U.S. State Department websites daily and take the next available appointment. There is no point in contacting the consulate or requesting an emergency appointment. Because this has impacted everyone worldwide, there are no emergency appointments or priority channels available for artists with concert or performance dates.

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

 

 

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Posted in Agents, Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Are You Being Served?

Thursday, June 11th, 2015

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

You frequently mention that the artists are our clients, but aren’t the presenters our clients, too? If an artist is acting unreasonably or is going to do something which we know will negatively impact the presenter, we can’t afford to alienate or lose a relationship with the presenter over one artist. We will need to work with them in the future.

No one can serve two masters. The artists are your clients. The presenters are your customers. When you are in the business of representing others—whether its in real estate, law, insurance, investment, business transactions, or the performing arts—this is an important distinction to understand: while you need to be polite and professional to your customers, you owe allegiance to your clients.

Think of it this way: I have a friend who manages one of the perfume counters at Saks in New York. He works directly for the perfume distributor and, as such, his job is to sell as much of his products as he can. He knows his product line, represents it well, and offers impeccable customer service. If a shopper wanders by, his job is to turn the shopper into a customer by enticing them with the signs, smells, and quality of his products. However, what if the shopper doesn’t want or like his brand? What if they are allergic to the smell of Eggplant Noir or they find the name “Evening in Hoboken” is less than enticing? My friend smiles and lets them wander over to Guerlain or Jo Malone. He remains true to his products even if it means losing a customer.

As managers and agents, it is in everyone’s interest—both yours and your artist’s—to provide the best customer service possible to presenters and venues. First and foremost, it makes good business sense. A manager’s or agent’s professional relationships are among the most valuable asset he or she provides to an artist. Second, the arts community is quite small and the shoe you step on today may be the one you have to lick tomorrow. Nevertheless, as an artist manager or agent, you legally owe a duty to the artists you represent to act only in the artist’s best interest, not your own, and to take no actions that would advance your own interests at the expense of your artist. These, among other duties—such as fiduciary duties and duties of care—are legally implied in every manager/agent relationship with an artist—even where no formal contract exist. In fact, the law considers these duties so important, that any attempt to have artists waive them in a contract are considered void and unenforceable.

Admittedly, this can often pose some frustrating conundrums for managers and agents—especially in situations where an artist directs you to withhold important information from a presenter or directs you to take action that you know could harm the presenter and harm your own relationship with the presenter. This can include anything from performing without the necessary licenses or visas to intending to skip out on a residency activity they didn’t want to do in the first place by feigning illness. Should such circumstances arise, then your duty is to advise your artist against the foolishness of his or her plans. However, if the artist persists, and you believe that your own professional relationship with the presenter would be imperiled, then your only legal course of action is to drop the artist from your roster. Anything else—such as giving the presenter a “head’s up”—would be a legal breach of duty. If you would prefer a role where you are legally allowed to act in your own best interest at the expense of all others, start a record label or become a producer.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

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Posted in Agents, Artist Management, Law and Disorder: Performing Arts Division, Liability, Presenters | Comments Closed

Understanding Legalese

Thursday, May 28th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

Every time someone sends us a contract, its always a lengthy document with lots of legalese that no one understands. Is there anything wrong with having a simple, one page agreement that everyone can easily understand and will sign?

A lot of people mistake “legalese” for language and terms they either don’t understand or haven’t considered. They see words on a page and immediately assume they can’t possible understand them.

This is legalese:

The party of the first part, which party has previously and hereinafter shall continue to be referred to as the Presenting Party, in and for the mutual obligations, conveyances, and other considerations contained herein, the sufficiency of which are hereby acknowledged, does for itself and on behalf of its officers, directors, employees, agents, and assigns (hereinafter the “Presenting Parties”), which the Presenting Party does herein attest, warrant, and represent that it has the authority so to represent and bind under the terms of this agreement, does herein and hereby concur, agree, and consent to prohibit, prevent, proscribe and preclude, so the best of its reasonable ability, the degree and extent of such “reasonability” to be determined herein as the term “reasonable” is defined in this Agreement hereunder, the recording and/or memorialization through any and all visual and/or audio and/or audio-visual means and methodologies now existing or hereinafter discovered, invented, or devised, including, but not limited to photography, analog and digital sound recordings, videotaping, screen captures, and any other human or machine-readable medium, the performance of the party of the second part, which party has previously and hereinafter shall continue to be referred to as the Performing Party, including, but not limited to, the performance or any portion of the performance of the Performing Party, including, but not limited to, excerpts, samplings, moments, movements, scenes, rehearsals, outtakes, or other manifestations of the performance or any portion of the performance of the Performing Party, for any purposes of any kind or nature, including, but not limited to…well, you get the idea.   

 This is not:

The Presenter agrees to prevent any unauthorized broadcasting, photographing, recording, or any other transmission or reproduction of any performance(s) or residency activity of the Artist, or any part thereof, by any means or media now known or hereafter invented, including, but not limited to audio, visual, or audio-visual means, and including any “archival” recordings, unless the express prior written consent of the Artist has been obtained.

The difference is that the first example uses unnecessary verbiage, poor grammar, and confusing structure. The second example just has a lot of detail. Don’t confuse “legalese” with “detail.” Whereas you don’t want legalese, you do want detail. Why? Because the whole point of a written document memorializing the terms of an agreement (also known as a “written contract”) is to convey information—not just to have a piece of paper that everyone signs.

Too many people want contracts that are “simple” and “brief” so that the parties will sign them, but that’s pointless. Merely having a signed contract does not mean that an engagement won’t get canceled, that commissions will get paid, artists won’t leave, or that any number of nasty things won’t happen to you. Signed contracts are not self-enforcing. If a dispute arises that cannot otherwise be resolved, the only way to enforce the terms of a contract is with a lawsuit. Lawsuits, as you know, achieve nothing other than making trial lawyers ecstatically happy and wealthy. No one in the performing arts can afford that, either personally or professionally. You don’t want to wait until a dispute arises to find out that you and the other party had vastly different assumptions about what was and was not expected and allowed. Instead, you want to make sure that everyone understands all of the aspects of a project or engagement at the outset and, hopefully, can discuss and evaluate the risks, challenges, advantages, obligations, and expectations of the relationship before they agree to it. In other words, you use a contract to educate, not to enforce.

What determines the length of a contract is the complexity of the project or engagement itself. An agreement for a single artist to perform a single recital is going to be shorter than an agreement for an orchestra to perform a world tour. Similarly, an assignment or transfer of all rights is going to be less complex than a recording agreement or an agreement to re-orchestrate an existing work.

Our industry is blessed with amazingly creative and dynamic professionals who are second to none when it comes to creating imaginative collaborations and engaging performances. However, they become slightly less than stellar when it comes to understanding the business and legal arrangements necessary to effectuate these plans. It’s one thing to discuss dates, repertoire, scheduling, and fees. It’s quite another to consider all of the various details, challenges, and misunderstandings that might come into play: will music or other copyrighted materials need to be licensed? If so, whose responsibility is this? Can either party cancel? Under what circumstances? What if someone gets sick or there is a fire at the venue? Who bears the loss of expenses cannot be recovered? Who is responsible if an artist is injured? Who is responsible for someone in the audience gets hurt? Who is responsible if an artist or crew member damages property of the venue? Who is responsible if someone from the venue damages property of the artist or show? Will visas be required for any artist? Whose responsibility is this? Is the engagement fee to be paid in dollars, pound sterling, euros, or other currency? Which exchange rate will apply? Who is responsible for taxes? Are deposits non-refundable?

This is where a contract comes into play. Yes, it takes time to create and read all of this detail. However, a detailed contract can be filled with all sorts of interesting and mutually beneficial revelations. For example, when recently negotiating the terms of an engagement for one of our own artists, I presented our engagement contract to the presenter—which contains a clause, much like the one above, prohibiting any recordings, including archival recordings. The presenter wanted to make an archival recording and assumed, incorrectly, that these were always permitted. We were able to find a workable solution and adjusted the contract accordingly. We also discovered that while the presenter had not factored in meals and transportation into the budget, we had misunderstood when the presenter actually wanted the artist to arrive. We were able to adjust all of these issues, none of which would have been discovered had we not taken the time to think through all of the various details. In the end, it didn’t matter whether or not the contract was even signed because going through the process itself allowed the presenter and I to discuss all of the details. The contract served its purpose.

In short, a more detailed contract that makes people stop and say “wait, I didn’t agree to that” or “what exactly do you mean by this?” is far better than an artificially simplistic one that everyone signs now and then squabbles about later whilst lashing out such cherished and time-worn drivel as “but that’s industry standard” or “that’s the way its always done.”

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

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Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Insurance, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Presenters, Touring, Venues | Comments Closed

Advice For The Young and Restless

Thursday, May 14th, 2015

By Robyn Guilliams     

GG Arts Law and GG International are in the process of hiring a new administrative assistant.  As I’ve been reviewing applications, I’m sad to say that I am shocked – shocked! – at the very poor quality of some of the cover letters and resumes we’ve received.

So, as a public service to all of you “young’uns” out there who are searching for a job in the performing arts field, or for those of you who already work in the arts and would like to move up the ladder as quickly as possible, I’d like to offer a bit of advice – some pitfalls to avoid – when submitting a cover letter and resume to a potential employer:

  • Spelling errors:  This is the most prevalent problem, and the one that is most easily remedied.  Do not rely on spell-check, people!  Proof-read your letter and resume, and then proof them again.  I realize we all make the occasional spelling mistake (my own emails are proof of this), but the documents you submit as your job application are the only criteria by which you are judged for a job, at least initially.  If you won’t take the time to proof-read your letter and resume, this tells me everything I need to know about what kind of employee you will be.  When I see these types of errors, the letter and resume immediately go into the recycling bin.
  • Writing Style:  The ability to write well is required for many jobs in our industry.  (And even if not, it’s a great skill to have!)  A number of the cover letters we’ve received, while not being grammatically incorrect, are very awkwardly written.  I highly recommend “The Elements of Style”, by William Strunk and E.B. White, to anyone wishing to improve his or her writing skills.  This book is a great resource for young professionals who want to learn to communicate more effectively through writing.
  • Irrelevant Job Experience:  Tailor your resume to the job for which you’re applying.  There is no reason to include work experience that is completely irrelevant.   For instance, don’t include in your “employment history” your job as a bag-boy at Piggly Wiggly when you were 14 years old.  I don’t care.  Don’t tell me about working as a ball-girl for your college softball team.  Seriously.  Nothing about that work experience is going to make me say, “This is the person we’ve been looking for!”
  • Try to keep your resume to one page.  Unless your professional career began at age eight, you probably don’t have enough relevant content to justify a longer resume.  Keep in mind – there’s no need to write a long narrative describing the responsibilities of each of your jobs.  Bullet points will do.  And, please, please, don’t use an 8-point font in an effort to cram everything on to one page.  I’m old, and I can’t read anything written in an 8-point font unless I hold the page an inch from my face.  I don’t like doing this.  It’s annoying, and it makes me feel old.
  • Don’t include the details of your entire professional life in your cover letter.  This is why you attach a resume.  Pick a few items from your resume that are directly relevant to the job for which you are applying, and include a detail or two about each experience.  Your cover letter should be no more than three paragraphs, and should be concise.  As I’m reviewing 150 letters and resumes, and I come across your two-page, ten-paragraph cover letter, I’ll want to stick a fork in my eye.  I already don’t like you.  (This really isn’t the reaction you’re looking for from your potential employer, is it??)
  • Avoid hyperbole in your cover letter.  Don’t tell me about your “extensive” experience in whatever.  If you are in your early twenties, it’s highly unlikely that you have extensive experience in anything.  (See above regarding the one-page resume.)  Along the same lines, don’t tell me about your “professionalism”, “strong work ethic” or “integrity”.  I see these descriptions so often that they’re virtually meaningless.  And don’t describe yourself as “an ideal fit” or “exceptionally qualified” (particularly when you are not at all qualified).  Your resume will speak for itself in this regard.
  • Don’t describe yourself as “detail-oriented” in your cover letter.  (This goes over especially badly when your letter is riddled with typos.)  When applying for a job, everyone describes themselves as detail-oriented.  Who the heck is going to say “I’m not so great with details”?  I can get an idea of your attention to detail from how carefully you’ve crafted your resume and cover letter, the types of jobs you’ve held in the past, and your responsibilities in those jobs.
  • In your cover letter, there’s no need to write about how “passionate” you are about the arts, how much you love going to the theater, or that Beethoven’s Eroica is your favorite musical work.  This is not your OkCupid profile.  Everyone goes into our field because we feel strongly about the arts, and we wouldn’t be happy working in any other field.  Your education, work history and other relevant experiences will show that you are committed to a career in the arts!

We’re excited about the prospect of bringing on someone new, although we’re sad that our current assistant, Ann, is leaving.  Take care, Ann – we’ll miss you!

_________________________________________________________________

For additional information and resources on this and other GG_logo_for-facebooklegal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

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Posted in Arts Management, Employees, Law and Disorder: Performing Arts Division | Comments Closed

New O and P Visa Petition Form Effective May 1, 2015

Thursday, April 30th, 2015

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

Someone recently told me that there was a new form for U.S. visa petitions for artists. Is this true? If so, when do I have to start using it?

Late last year, U.S. Citizenship and Immigration Services (USCIS) released a revised version of Form I-129—the form which is used to petition for O and P visas. While most attorneys have been using the new version of the form (edition date: 10/23/14) for several months, USCIS has been accepting both the old and new forms. That is, until now. USCIS recently announced that, effective May 1, 2015, USCIS will no longer accept the old version of Form I-129. Any visa petition submitted on or after May 1, 2015 must use the newest version of Form I-129 (edition date: 10/23/14) or USCIS will reject the petition. You can verify that you are using the correct version of Form I-129 by checking the edition date of the form at the bottom of each page of the I-129. As USCIS frequently revises forms and changes filing fees, often with little notice, you always want to download your forms directly from the USCIS website. NEVER assume a form you used before, much less a form provided by someone else, is correct.

Almost all of the information requested in the new version of Form I-129 (edition date: 10/23/14) is the same as the old form, just re-arranged in an inexplicably more confusing and complicated manner. As a result, the old I-129 form, which used to be 7 pages, is now 8 pages. The old I-129 O/P Supplement, which used to be 2 pages, is now 3 pages. You will need to read each question carefully as boxes and blanks have been moved around. There are also other hidden gems such as certain answers which must be filled in by hand where the revised form currently available on the USCIS website does not allow typed characters. (While I presume these changes and revisions make sense to USCIS, for the rest of us, it would take a herd of rabid squirrels to devise something more inane.)

The maddening inconvenience notwithstanding, there are really only two changes of any consequence worth noting, both of which are in response to what USCIS claims are increased instances of fraudulent O and P petitions:

1) The new I-129 form now requires both petitioners and anyone who prepares petitions for others to affirm that they have personally reviewed all of the information, evidence, documents, statements, and assertions in the petition and assert that everything is true and accurate. While such standards and practices have always been de rigueur for most attorneys, the new I-129 now officially places a heightened level of responsibility and liability on anyone who prepares a visa petition on behalf of someone else to assure that the petition and all evidence is accurate.

2) The new I-129 O/P Supplement now asks whether or not an artist or beneficiary has any ownership interest in the petitioning organization. This is to prevent artists and others from “self-petitioning.” While O and P beneficiaries have never been permitted to serve as their own petitioners, the previous versions of the I-129 never specifically asked this question. Now, petitioners will need to disclose whether or not any beneficiary of the petition is also an owner of the petitioner.

Whether or not there has, in fact, been increased instances of fraudulent O and P petitions remains to be seen. USCIS states that the Preparer’s Declaration has been modified to “protect the form against fraud and misuse,” noting that “visa fraud and misrepresentation, especially for employment-based petitions like Form I-129, have been the subject of a significant number of criminal prosecutions.” USCIS states that revisions to the attestation and signature sections were made at the request of the Department of Justice “to make it clear that applicants, preparers, interpreters, and representatives all have legal responsibilities with respect to the proper and truthful filing of benefit requests.” However, according to information obtained by the American Immigration Lawyers Association in fiscal years 2012 and 2013, the USCIS Fraud Detection and National Security Directorate “found fraud in 1,499 and 723 cases respectively in Form I-129 filings, which means that approximately 0.33 percent of Forms I-129 resulted in a finding of fraud.” That’s less than 1/3 of one percent. Nonetheless, it is well known that the U.S. Department of Homeland Security, which controls USCIS, has always been driven more by paranoia than reality and favours draconian measures. This perception of fraud has been responsible for the increased scrutiny of I-129 supporting evidence, along with demands for more evidence, which began in 2014 and which continues to this day. As a result, the average O and P petition prepared by our office weighs about 2 – 3 pounds! At this rate, perhaps the only ones with a legitimate right to be paranoid are trees.

_________________________________________________________________

For additional information and resources on this and other GG_logo_for-facebooklegal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

 

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Is It Still Illegal If I Don’t Get Caught?

Thursday, April 9th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

Our organization has engaged a foreign musician whose European agent is balking at the artist having to obtain an O-1 visa that we know he needs. We want to do this right, so I’m getting my ducks in line to tell him no and part of making that case is knowing what potential penalties the organization might face for allowing him to work without the proper visa. I hope there is an easy answer that you can give me off the top of your head—or maybe there is something you can refer me to that would provide the answer.

A lot of artists and their managers balk at the U.S. visa process for artists. I understand. It’s illogical, inane, impractical, unpredictable, arbitrary, and expensive…and those are just the high points. Nonetheless, it’s the one we’re stuck with.

The “easy answer” is simply that “it’s illegal.” Artists are not permitted to perform in the U.S. without an artist visa (most often, either an O or P), regardless of whether or not tickets are sold, regardless of whether or not the artist is paid or who pays the artist, regardless of whether or not the performance is for a 501(c)(3), regardless of whether or not the performance constitutes “training” or is “educational”, and regardless of just about any scenario you can conceive of. What you are really asking is: what are the consequences for breaking the law and what are the odds of getting caught?

Both United States Citizenship and Immigration Services (USCIS) and United States Customs and Border Patrol (USCBP) have been increasingly scrutinizing artists over the last year or so. As a result, artists who have previously managed to perform illegally in the U.S. in the past without the proper artist visa are now being caught with ever greater regularity—resulting in significant consequences for both the artists as well as the presenters and venues who allowed them to perform. Last year, a violinist who had been performing in the U.S. for the past five years without a visa was caught and is now banned from the U.S. for three years. I am aware of a conductor who was turned away at the border when the immigration official discovered that he was coming to perform by “googling” his name. Another artist was advised by his management to enter the U.S. on a visitor visa to perform a promotional tour for a new album, was detained at the airport for 5 hours, and then refused entry. His ESTA/Visa Waiver privileges have been revoked and he must now visit a U.S. Consulate any time he wants to enter the US—even as a visitor. Even more significantly, a management company was caught submitting a fraudulent visa petition to USCIS and is no longer allowed to serve as a petitioner for its own artist’s visas. Large presenters, venues, and festivals are being audited with increasing regularity to determine whether or not all artists have proper artist visas.

The consequences for employing an artist illegally are the same as for any employer who employs an illegal alien. Theoretically, this can include anything from fines and economic penalties to criminal prosecution. However, from a practical perspective, the Department of Homeland Security and Department of Justice lack the resources to prosecute and investigate every venue or presenter who facilitates an illegal performance. This is why most enforcement tends to be focused on the artist at the time of entry. After the artist has entered the U.S., it’s much less likely that DHS would discover the performance unless there is an audit or the performance is reported to them. Audits are much more likely to occur either in the case of larger institutions or employers who already employ foreign workers in other capacities or in the case of prominent or significant venues or performances which are more likely to garner media attention.

In short, whenever a venue contemplates employing an artist without a proper visa or an artist contemplates performing with a proper visa, it’s akin to running a red light. It’s illegal under any circumstances. Whether or not you get caught depends on whether or not there is a camera or cop at the intersection. Whether or not it’s advisable depends on the circumstances and how lucky you feel.

If cost and inconvenience is a factor, and the artist has other U.S. engagements, a potential solution might be an itinerary-based visa covering multiple engagements. I am increasingly and puzzlingly seeing artists obtaining multiple visas rather than coordinating them amongst all of the artist’s presenters. There is no reason for this other than the visa process being all too often delegated to the “new kid” in the office.

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For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Presenters, Touring, Visas | Comments Closed

Don’t Be Shy About BMI

Wednesday, March 25th, 2015

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

Hypothetical: A theatrical production company would like to produce a tribute musical production to a songwriter using only the songwriter’s music being performed by the cast of the production. The production would be held at a community theater which is not licensed by ASCAP or any licensing authority. The production company is unsure of its legal standing in carrying out this this production, and would like some general guidance. Where could they go to determine the requirements, if any.

If any? There are always requirements. I don’t know anything that doesn’t require something in return.

The production company has no legal standing to carry out this production without first obtaining the necessary licenses. If the songs are being performed as part of a “concert” style performance—that is, being sung without props or costumes and not as part of any plot, story, or narrative—then the producer would merely need to get a performance license from whichever one of the three major performance license agencies the songwriter belongs to: ASCAP, BMI, or SESAC. If the songwriter doesn’t belong to one of these (which is unlikely, but possible), then the licenses would need to be obtained from the songwriter directly.

It doesn’t matter whether or not the performance is being held at a community theater or whether or not the community theater holds a license with ASCAP, BMI, or SESAC. Performance licenses must still be obtained and either you (hypothetically, of course) or the theater must obtain them. There is no legal requirement that the venue be the one to obtain performance licenses. While its probably easier for the venue to obtain the licenses, it is the responsibility of all of the parties involved in a production—from the producer and performers to the venues and agents—to ensure that someone obtains the necessary licenses. Otherwise, everyone will be held responsible and, hypothetically, you don’t want that. Also, if this is a production which the production company envisions producing elsewhere, then it probably makes more sense for the production company to get the licenses itself.

If the production company wants to obtain the licenses, it would simply contact ASCAP, BMI, or SESEC directly. However, there are a few additional issues that could quickly change the simple to the sublimely complex:

1) If what you are “hypothetically” envisioning is not so much a concert “tribute”, but, rather, a “juke box musical” where the songs of one composer are used as the score of an actual musical drama or to tell a story (ie: Mamma Mia, Jersey Boys or Beautiful), then neither ASCAP, BMI or SESAC can help you. You will need dramatic licenses, not performance licenses. Dramatic licenses must be obtained directly from the songwriter or the songwriter’s publisher. If this is the case, you should be prepared for a resounding and thunderous “no.”

2) Even if you are planning a more traditional concert tribute such as Side-by-Side-by-Sondheim or An Evening of Andrew Lloyd Webber, many musical theater and other composers have restrictions preventing more than a specific number of their works from being performed as part of the same concert without obtaining additional rights directly from the publisher.

Nevertheless, contacting ASCAP, BMI and/or SESAC is always the best place to start on any licensing journey. Don’t be shy. They want to have their artists’ works get performed as much as you want to perform them. However, they also want to make sure their artists get paid, just like you do. Assuming, of course, that the production company expects to sell tickets, if any.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

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Posted in Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Presenters, Publishing, Venues | Comments Closed

The Damaging Truth About Cancellation Damages

Thursday, March 12th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

A presenter wants to breach our engagement contract by cancelling. Our cancellation clause says that, in the event of cancellation, we get 50% of the engagement fee or actual damages. They are offering 50%, but at this stage want the full fee.

If you have an engagement contract that has a cancellation clause, and a presenter cancels, then the presenter is not breaching your contract. A contract breach only occurs when someone fails to do something the contract requires (such as pay a deposit) or does something the contract does not permit (such as record a performance). In this case, if your contract has a cancellation clause, then you have given the presenter the right to cancel. So long as the presenter complies with the terms of your cancellation clause, then they are not in breach. They are merely exercising the right you gave them to cancel. If you don’t want them to cancel, don’t give them the right to do so.

According to your cancellation clause, if a presenter elects to cancel, they have to pay you either 50% of the engagement fee or actual damages. However, your actual damages may or may not be the full engagement fee. To determine whether or not you are entitled to the full engagement fee, you first have to calculate your “actual damages.” Actual damages are simply that: your actual out-of-pocket losses from the cancellation of that particular engagement. No more. No less. Calculating “actual damages” involves taking the full engagement fee and subtracting any costs or amounts you saved or did not incur as a result of not having to perform.

In some instances, the “full engagement fee” might include the performance fee as well as other costs, such as the value of travel and/or hotel that the presenter was covering. However, for the sake of simplicity, let’s assume that the full engagement fee was $5000, of which you needed $2000 to cover costs such as travel and equipment, leaving $3000 for profit. If by cancelling, you did not have to incur the travel and equipment costs, that means you saved $2000, and your “actual damages” are $3000. You would only be entitled to the full fee of $5000 if the engagement were cancelled too late for you to save or recoup any of your costs.

However, “actual damages” can never exceed the total value of the full engagement fee. As we all know, sometimes a single cancellation in a larger tour can also have residual implications. What if you were counting on the travel and hotel from a larger presenter to “underwrite” the costs of a smaller engagement fee from another presenter or run-out? If the larger engagement gets cancelled, that may necessitate the cancellation of the smaller one as well, or even the entire tour. Sadly, those losses are not “actual damages.” That’s just called bad planning.

Just because you were counting on something to make an entire tour break even, does make the loss “actual damages.” If the loss of a single engagement will trigger a domino effect, such as the cancellation of the entire tour, then, in addition to “actual damages”, you have suffered “consequential damages.” I know, that doesn’t make sense, but lawyers came up with these concepts hundreds of years ago and contracts still use the same broken terminology. This is the risk inherent in using contractual language you copy from someone else or don’t fully understand. You may inadvertently be using language that makes sense to you, but has a different legal meaning. The solution is simple: use English and be specific—even if it means (perish the thought!) using more words. For example, rather than write “we get 50% or actual damages” write what you mean:

If you cancel the contract, we get either a minimum of 50% of the engagement fee or all of the damages we actual incur as a result of the cancellation, including the cancellation of other engagements and/or any additional costs we must incur for travel, hotel, or other tour expenses, whichever is greater.

Wordier? Yes. Clearer? Indeed. An even clearer solution? Specify at the outset that the engagement is non-cancellable.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

 

 

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Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Presenters, Touring | Comments Closed

Replacement Woes

Thursday, February 26th, 2015

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We are a dance company who is going to perform in March in the United States. We gave the list of names for Visa purposes last September to the venue. Now we have some changes, we have to replace two technicians who are essential for the show. They tell us there is a law that says that technicians cannot be replaced. Only artists. But how are we going to travel without our light and set technician? Is there any exception? Thank you for your news, we are quite desperate with this situation. Only if we could have one technician at least this would help. The thing is that we want to replace the technical director by another one who is unfortunately not in this visa list that the venue got for us.  If you could just confirm me that there is really nothing to do, as they said to me (they say it is a law who does not allow to replace the technicians)

I am happy to shed some light on this, though you may quickly want me to switch it off.

Members of dance companies, theatre companies, orchestras, or any other group, band, or ensemble are required to have P-1 visas to perform in the United States—yes, even if no tickets are sold and no one is paid! For the purpose of obtaining such visas, USCIS divides the members of such companies into two groups: performers and non-performers. All of the performers—dancers, musicians, singers, actors, etc—must be listed as the beneficiaries on a P-1 visa petition. All of the non-performers—choreographers, directors, tour managers, lighting and sound technicians, stage managers, etc—must be listed as beneficiaries on a P-1S visa petition.

Once a visa petition has been submitted to USCIS, no changes, corrections, or substitutions can be made to either the P-1 Beneficiary List or the P-1S Beneficiary List without filing an amended petition (which also means paying a new filing fee.) However, once a petition has been approved, if a performer needs to be replaced, then a U.S. Consulate has the authority to accept substitutions and issue a visa to one or more new performers in place of the ones listed on the original P-1 Beneficiary List provided (1) a visa has not already been issued to the performer(s) being replaced and (2) at least 75% of the total number of performers after the substitution are made will have been performing together for at least a year.

Substitutions at a U.S. Consulate are not permitted for anyone listed on the P-1S Beneficiary List. Should technicians, directors, choreographers, crew, or anyone listed on the original P-1S Beneficiary List be unable to travel or need to be replaced, the only mechanism by which to achieve this is to go back to USCIS and file an amended P-1S Petition (which also means paying a new filing fee and obtaining a new union consultation). Similarly, no substitutions are permitted for O-1 beneficiaries, O-2 beneficiaries, or in any other visa category. Everything requires either a new or amended petition.

One solution is to add additional names of potential technician and crew substitutions as part of the original P-1S Beneficiary List at the time the P-1S visa petition is filed. If it turns out you do not need the substitutions, then these folks simply do not have to apply for their visas. However, should you need them for any reason, their names will already be on the approved P-1S Beneficiary list and they can proceed directly to the U.S. Consulate and apply for their visa. This is yet one more reason why I always recommend that, when planning or booking any foreign tour, issues such as visas, taxes, and related costs and timing should be factored in at the outset and not left to last minute scrambling and panic. What’s that I hear? Crickets and whistling wind?

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, projet management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal, project management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

Tags:, , , , , , , , , , , , ,
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

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