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• A National Ban on Performance Exclusivity Clauses   • Posting Recordings on Websites • Artist Visa News, Nausea & Updates  • Your Contract Playlist    

Monday, June 24th, 2024

LAW & DISORDER

Performing Arts Division

June 25, 2024  

INSIDE THIS ISSUE:

• A National Ban on Performance Exclusivity Clauses  

• Posting Recordings on Websites

• Artist Visa News, Nausea & Updates 

• Your Contract Playlist    

 

Legal Issue of the Month:

Will a New National Ban on Non-Compete Agreements Also Apply to Performance Exclusivity Clauses? 

 

 

You may recall (or not, that’s ok, too) that in our last newsletter we discussed that on April 23, 2024, the Federal Trade Commission (FTC) issued a nation-wide ruling banning non-compete clauses in all employment contracts, regardless whether an individual is hired as an actual “employee” or as an independent contractor, paid or unpaid, an intern, or a sub-contractor hired to provide service to another party’s client or customer. You can read the announcement HERE.

Further review and analysis have shown that this new ruling, should it go into effect, will also prohibit venues and presenters from including any language in their engagement agreements restricting or prohibiting where an artist can perform before or after an artist’s performance. In other words, should the Grunion Run Performing Arts Center engage the Willy Tugger Jazz Band, they could not prohibit the band from performing two days later at the Annual Grunion Run Mayonnaise Festival where admission is free. Of course, regardless of the future contractual enforceability of a performance exclusivity clause, any artist who actually did this would be hammering a nail deep into the coffin of their touring career. 

Whilst the official effective date has yet to be announced, unless the new regulation is pre-empted by a lawsuit or other judicial action, then the ruling will likely go into effect sometime in Fall 2024.

 

 

 

Dear Law and Disorder:

Actual questions we get asked and the answers people actually don’t want

“With thanks, your friendly, neighbourhood car thief”

Dear Law & Disorder:

I want to post a video on my website that I found on the internet that would be perfect for my new project. I will give full credit to the musician, including the musician’s original link, would this be legal? And can you please specify on what full credit means.

A “copyright” is literally the right to make copies. A copyright “infringement” is when you make a copy of something without the owner’s permission. Almost everything you can find on the internet (photos, images, videos, text, etc.) is someone else’s property. Part of the challenge of understanding digital rights is that the ease with which we can download and copy materials on the internet tends to make us forget that copying any materials without permission is still copyright infringement. Without question, many people post pictures, videos, and other materials and are more than happy to have others repost and share them; but that decision is entirely up to the person who owns the materials. In other words, just because a car is parked on the street, doesn’t mean it’s free for the taking. As for giving “full credit,” that’s like stealing a car, but leaving a thank you note on the owner’s door. It doesn’t make it any less a crime.

If you want to get actual permission to post a video, photograph, or any other copyrighted material on your website, then you need to get permission (aka “a license”) from the owner—which may or may not be the artist. The better option would be for you to post a link to the video rather than post the video itself. In other words, you would be inviting your readers to go to YouTube or the artist’s own website to view the video. This way, the owner can control whether or not they want the video to be shared.

And now, the part you’ve all been waiting for……

Artist Visa News, Nausea

& Updates

 

Most of you know by now that between December 2023 and April 2024, USCIS implemented a number of new filing fees and policies purportedly designed to “maintain adequate service.” Please Note: I did not make that part up. This is direct quote from the preamble to the Final Rule issued by USCIS on January 31, 2024 in which it sets out the goals of its new rules and policies: Not to “improve service” or even “increase processing times,” but to aspire to the lofty and inspired goal of “maintain adequate service.” You can read it for yourself HERE. That’s only slightly less disingenuous than a mobile service touting a 6G upgrade of two tin cans and piece of string.

USCIS, far from its delusions of adequacy, instead has taken an already broken system, smashed it into more pieces, glued it back together with spit and crushed graham crackers, and tossed it into a soggy carboard box of berserk cane toads. After two months in the toad box, here’s where we are:

 

1. Standard Processing Times Are Getting Slower 

Processing times are getting longer, slower, and more intense, which is good news only for those of you who fantasize about USCIS visa examiners. Though we have seen a few instances of standard processed petitions taking 4 months or longer, most seem to be taking 2 – 4 months from the date of filing. Whilst the Vermont Service Center appears to be processing more quickly than the California Service, as USCIS is no longer assigning petitions to service centers based on jurisdiction, there is no way to know where your petition will wind up or exactly how long it will take to be processed.

Premium Processing appears to be taking 7 – 15 business days, with, again, Vermont processing more quickly than California.

2. USCIS Is Losing P Petitions

For those of you unfortunately forced to file multiple P petition to cover large groups, such as four P-1 Petitions to cover an orchestra of 80 musicians, USCIS is splitting them up and sending them to different service centers who adjudicate them at different times. Even when a single P-1 Petition is filed concurrently with a single P-1S Petition or an O-1 Petition is filed with an O-2 Petition, USCIS is splitting them up and sending them to different examiners at different service centers. In the interest of further proving that they aren’t even competent enough to trust with scissors, USCIS is also losing a few along the way. In one particular case, three P-1 Petitions for a large group were filed concurrently with premium processing. USCIS approved 2 and lost 1. Eventually, they found it 30 days after it had been filed, emailed the receipt notice with a thoughtful note saying, “thanks for your patience,” and approved it 2 days later. (Yes, USCIS has to refund the premium processing fee for that one.) So, allow even more time when filing petitions for large groups.

TIP: If you do not receive an I-979 Receipt Notice for a filed petition, then go to your bank and see if USCIS cashed the filing fee check. If so, on the back of the cancelled check will be the receipt number for the petition. You can then use this to deride them when they try to claim it was never filed. 

3. USCIS Is Improperly Rejecting Petitions

There have been numerous instances reported of USCIS rejecting petitions for incorrect filing fees even where the filing fees were correct. This appears to be due to the fact the separating the total filing fee of a petition into multiple different fees based on the business status of the petitioner has not worked as seamlessly as they had hoped. USCIS reports that this is a “training issue,” which presumably means this will improve with rolled newspaper and better treats.

TIP: If you are a non-profit of an employer of 1 – 25 employees, then be sure to address this in your cover letter and explain why you qualify for a reduced fee. Also remember to provide the appropriate documentation of your status.

REMINDER: To qualify as a “small employer” you must have at least 1 full-time employee on a payroll and from whose pay checks taxes are withheld. Otherwise, you are a “small business” or “self-employed” and must pay the maximum filing fees.

4. USCIS Is Issuing Barmier RFEs

USCIS has always been renowned for issuing tragically comical Requests for Evidence (RFEs) when it comes to displays of their obliviousness of anything that occurs on a stage—which, of course, always raises the question of whose idea it was to give them the final say on the casting and booking decisions of major opera companies, theatres, and presenters in the first place. Nonetheless, unattended USCIS Examiners have recently been burrowing into new depths of obtusity in their soiled sand box and issuing more preposterous RFEs. In particular, we have seen a disturbing increase in RFEs for P-1S (Essential Support Staff) Petitions in which they are asking for individual employment contracts for each person with specific employment terms and conditions, more information on why the services provided are necessary for a performance, and why the group can’t just hire US workers to do the same thing. To pluck just a few pearls:

  • What do stage managers do and why are they necessary for a performance?
  • Why can’t an orchestra engage a US-based Orchestra Manager to manage their orchestra when they perform in the US?
  • If the group is performing in New York City, will the group’s lighting designer and stage technicians be providing their services at the same venue at the same time?

Other notable RFE’s we have seen over the last few months include USCIS contending that:

  • An “audience prize” given to an artist at a competition does not count as an “award” because he was selected by the audience and not by experts, critics, or judges in his field.
  • Competitions for “Young Artists” do not count as significant awards or competitions because young artists are only competing against other young artists. For such an award to be “significant”, the competition must include older artists.
  • An opera conductor is not in the same field as an orchestral conductor because one conducts orchestras and one conducts operas, thereby requiring two union consultation letters.
  • An artist performing at a festival cannot be a “lead and starring artist” if there are other artists also performing at the same festival. To be a “lead and starring artist,” the artist must be the only artist performing at the festival.

And my personal favourite: a request for “independent, third-party proof” of the formal name and full street address of Carnegie Hall, as well as proof that, just because the artist has been engaged to perform at Carnegie Hall they will physically be performing on-site.

Fortunately, all of these petitions were ultimately approved, but not without extra expense, lost time, and digging ever deeper into the repository of linguistic condescension in responding to the RFEs—including printing out Google Maps driving directions from the address of the California Service Center to the front door of Carnegie Hall.

TIP: Trying to explain or induce USCIS to appreciate the impact of their ineptness on the Performing Arts will produce only slightly less meaningful results than a zip log bag of toenail clippings. Rather, work around them. Know that they are extraordinarily paranoid, as well as painfully literal. Never explain or make them think. Give them what they want to know, regardless of how stupid or rudimentary it may seem, and in the simplest of terms possible. If what they want doesn’t exist, draft simple, specific documents just for USCIS that addresses the specific things they want to know.

 

Want To Listen To More About Contracts?

 

My friend and longtime client, Laura Colby, a performing arts manager based in New York City, hosts a podcast entitled The Middle Woman. In The Middle Woman, Laura discusses best practices for managing, touring, and presenting the performing arts from the lens of a working artist and shares her collected learnings with the new generation of performing arts professionals.

She recently invited me to join her in a discussion about contracts in the performing arts.

Here are the links to access the episode on Spotify, Amazon Music, Audible, and Apple Podcast.

Whilst it may or may not be the best thing to listen to before going to bed, it was a great discussion.

 

 

 

Deep Thoughts

 

“Remember, when you are dead, you do not know you are dead. It is only painful for others. The same applies when you are stupid.”

― Ricky Gervais

 

Send Us Your Questions! 

Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.

OFFICIAL LEGALESE:

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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

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Posted in Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Presenters, Uncategorized, Visas | Comments Closed

Contractual Effrontery; Not Paying Artists is a Crime!; How a Government Shutdown Will Impact US Artist Visas

Tuesday, September 26th, 2023

LAW & DISORDER

Performing Arts Division

September 27, 2023 

INSIDE THIS ISSUE:

• Contractual Effrontery  

• Not Paying Artists Is A Crime!

• How A Government Shutdown

Will Impact US Artist Visas 

 

Legal Issue of the Month:

Contractual Effrontery  

Recently, I was contacted by an agent regarding a new artist that was joining his roster. In response to receiving a copy of the agent’s managerial contract, the artist responded with a terse missive that they found the contract to be “unfriendly.” The artist complained that they were expecting a simple, written confirmation that the parties would be working in a mutual spirit of collaboration and partnership and not, as the artist opined, a “harshly written” and “aggressive” formal document with requirements, restrictions, terms, and conditions. The agent asked me to take a look at the contract.

I took a look. Whilst not a model of light-hearted whimsy, the contract contained the typically dry and prosy terms one would expect to find in an Artist/Agent contract: how commissions are calculated and paid; the agent’s booking territory and exclusivity rights; termination provisions; etc. Was it peppered with frippery and bagatelles? No. But neither did it hurl insults at the artist nor identify the contractual parties as “Manager (hereinafter referred to “He Who Must Be Obeyed”) and Artist (hereinafter referred to as “Scum”).” In short, there was nothing to find “unfriendly” or aggressive.

Make no mistake, I find it commendable that the artist actually read the contract. Indeed, given the fact that most in our industry avoid words and contracts as if reading anything that cannot fit on a post-it note will send their eyeballs exploding out their elbows, I was delighted. What is discouraging is that the artist took the contract as a personal affront rather than what it was: the agent’s proposal of the terms, definitions, and conditions that would define the “collaboration and partnership” between them. It was nothing more than an invitation for the artist to review the contract and respond with their own questions, clarifications, and proposals for alternative terms and conditions—though, in this case, the problem seems to have stemmed from the fact that the artist was anticipating no terms or conditions of any kind, presenter a deeper existential issue.  

The very core of any successful collaboration or partnership is making sure that all the parties are, in fact, working with the same playbook. And that’s the whole, entire, and sole point of a contract: that before any work is done, engagements booked, or music composed, the parties have exhausted every effort to root out unexpressed concerns and fears, unclog misconstrued conversations, and extract hidden expectations from the crevices of unspoken assumptions.

Whenever I am asked to review a contract, the first thing I do is ask my client to express their own understanding of what has already been discussed, outlined, or orally agreed upon. Then, I can draw back the covers to see how close or far apart the parties actually are. Discovering that the other party has expectations and assumptions that are contrary to your own makes them neither nefarious nor contemptible. It just means that you and they are not yet on the same page (both literally and figuratively) and that further conversations, clarifications, and discussions will be needed to assess whether or not to proceed with the relationship. However, if at the outset any reasonable proposal or question results in the other party clutching their pearls and gasping at such brazen impertinence, that is a good indication that any collaboration or partnership is not going to go well without an intervening therapist. 

Dear Law and Disorder:

Actual questions we get asked and the answers people actually don’t want

“Not Paying an Artist is a Crime!” 

Dear Law & Disorder:
Our company got a bad check from a non-profit venue for a performance we did. We called them and they sent us a new check, but that bounced, too. Now they won’t return our phone calls. Is there anything we can do?

I once had an artistic director of a dysfunctional non-profit tell me that, although they were unable to pay the money owed to an artist, the artist should be satisfied having already been paid ten-fold in the goodwill and joy they brought to the audience. Sadly, I have yet to find landlords and grocery stories willing to accept payment in goodwill and joy. 

Almost every state has a statute that allows a person who receives a bad check to sue the issuer of the check and not only receive two to three times the value of the check, but recover attorneys’ fees and court costs as well. In addition to suing the non-profit itself, most states will also allow you to sue the individual who signed the check even if they were acting as an officer, employee, board member, or volunteer of the non-profit. While it’s true that suing an organization that has no money is often a waste of your own time and money, it’s also a crime in most states to write a bad check. You will want to do some research on the laws in your particular state.

Regardless, your first step should never be to file a lawsuit or run to the police. Besides, both civil and criminal laws require some form of “intent” on the part of the issuer of the check. There is no liability for inadvertently writing a bad check or in situations where the check merely crossed with the available funds. If the mismanagement of a non-profit were a crime, most of the 2023/2024 season would be presented at the Rikers Island Centre for the Arts. If the non-profit is not returning your calls, try other forms of communication such as emails or even formal letters. If necessary, send letters to the Chairman of the Board or to individual board members reminding them of their potential exposure to personal as well as criminal liability. If they continue to ignore you or fail to make payment, then at least you will have written proof of their intent not to honour the check and then you can consider whether to contact a local attorney, file a claim in small claims court, or contact the local prosecutor’s office in the city or town where the venue is located. Regardless, do not, under any circumstances, post anything on social media in an effort to shame them into paying you. Whilst public shaming worked for the Puritans, it will backfire on you for a number of reasons.

 

Artist Visa News & Nausea 

• How A Government Shutdown Will Impact Artist Visas

In the fantastically remote and implausible event that the US Congress cannot cast aside the ponderous chains of party and ideological differences, sipping from the communal grail of public service thereby discarding their own personal goals and aspirations to rapturously ascend the alchemical mountain into the prima materia of the common good, and in so doing pass the spending bills necessary to keep the government open beyond midnight on October 1, 2023, then certain US government agencies will cease operations.

As USCIS is mostly funded by petition filing fees, they will continue to review visa petitions—albeit processing may slow due to outside contractors not being paid. However, depending on how long the shutdown lasts, certain US Consulates around the world could experience delays in being able to process visa applications or cease all but emergency operations. Even when the government re-opens, the resulting backlogs could see delays continue for a while. So, again, whilst an unlikely scenario in a highly functioning democracy that owes no apologies to King George III, one may want to plan for contingencies, nonetheless.

• New Edition of the I-129 Form

Starting November 1, 2023, USCIS will only accept the new 05/31/23 edition of the I-129 Form. They have made no changes to the form itself. They merely changed the date of the form. Whilst some may consider this pointless, I have found myself enjoying new depths of restful slumber cradled in the knowledge that the Department of Homeland Security is tireless in its efforts to ensure malicious hordes of foreign orchestras do not employ date compromised forms to breach our borders. Until November 1, 2023, you can continue to submit the old 11/02/22 edition, but you might as well start using the new edition now. You can find the edition date at the bottom of the page on the form and instructions. As a general rule, if you make a habit of always downloading the I-129 form directly from the USCIS website whenever you prepare a petition, you will always have the most current edition.

• Using Consultation Letters from Peer Groups instead of Unions

We have recently seen an uptick in USCIS issuing a Request for Evidence (RFE) in response to petitions in which the Petitioner has provided a consultation letter from an artist peer group (such as Opera America, Fractured Atlas, or the League of American Orchestras) as opposed to the applicable performing arts labour union (such as AFM, AGMA, or AGVA). Whilst the applicable USCIS regulations allow for consultation letters to come from unions OR peer groups, not all Examiners are able to find this on their Fisher Price Lil’ Examiner Regulation Spin-a-Wheel pull toy. As a result, the petition will be put on hold until you can either present the Examiner with the citation to the regulation or get a union consultation letter. Depending upon whether you paid for standard or premium processing, this could cause a delay of 15 days to 3 months. As, in my experience, the most inane RFEs are only ever issued in response to petitions that are also the most time sensitive, in instances where you are on a short time you’re better off spending the extra money to get the union letter at the outset. The $300 consultation fee you try to save today could cost the cancellation you face without a visa being approved in time.

• Current USCIS Service Centre Processing Times:

There have been signs of slower processing times at the Vermont Service Center, though they are still faster than the oozing pace maintained at The California Service Center.

Vermont Service Centre:

Standard processing: 8 – 10 weeks

Premium processing: 9 – 10 days

California Service Centre:

Standard Processing 3 – 4 months

Premium Processing 13 – 14 days

 

Deep Thoughts

“If the wise elders of the village don’t teach the children, the village idiots will certainly do so.”

African Proverb 

 

 

 

Send Us Your Questions! 

Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

 

OFFICIAL LEGALESE:

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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

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

CLOUDY WITH CONTINUED EXCEPTIONS

Sunday, July 11th, 2021

Every time I sit down to write a blog about a more compelling subject, such as tales of successful artist entrepreneurship or navigating exciting new commissions and projects, a visa crisis drags me back into the bowels of despair. On this occasion, it’s the ongoing impact of the U.S. COVID Travel Ban on international artists coming to the U.S. compounded by the significant backlogs and delays at most U.S. consulates.

For those of you who don’t know what I am talking about, you either don’t work with non-U.S. artists or you have been blissfully unconscious for the past 15 months. Whichever the case may be: “Where ignorance is bliss, tis folly to be wise.” (Thomas Gray). For everyone else, here’s a quick recap:

Under the U.S. COVID Travel Ban, anyone traveling to the U.S. from the European Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, and Vatican City), the United Kingdom, Ireland, Brazil, South Africa, or India cannot enter the U.S. without EITHER traveling to a country not on the list and quarantining there for 14 days before entering the U.S. OR qualifying for an exception to the ban. There are various exceptions for immediate family members of U.S. Citizens spouses, medical professionals, and people coming to help fix roads and bridges, but no automatic exceptions for artists. For artists to get a waiver from the ban, they must qualify for the “catch-all” exception of showing that it is in the “national interest” for them to be granted an exemption from the ban. This is called a “National Interest Exception” or NIE…or, more aptly: “Naturally It’s Execrable.”

To make matters worse, for artists who have been approved for O or P visas, but need to apply for them at a U.S. Consulate, as a result of COVID lockdowns and closures over the last 15 months most U.S. consulates—particularly in Europe and the U.K. (which isn’t really part of Europe anymore ever since it unmoored itself and drifted off in the Ocean of Belegaer towards the Undying Lands) are either not accepting visa application appointments or have none available until February 2022 or later.

For more info, stop and first read our May 20, 2021 blog entitled “Is It Time For Artists To Return To The US?” which you can find either here on Musical America  or on our website www.ggartslaw.com, then come back and read on.

As the COVID Travel Ban is negatively impacting almost all sectors of the U.S. economy—from hospitality and tourism to manufacturing and global trade—on Thursday, July 8, the American Immigration Lawyers Association hosted a nationwide zoom call to discuss the crisis and the latest developments, as well as potential strategies and solutions. The call included liaisons with both the U.S. Department of State (DOS) and U.S. Customs and Border Patrol (CBP). (What, you say? What about USCIS? For once, the scourge of USCIS is not responsible for our current tortures.) Not surprisingly, I was among the few on the call who worked with artists, but I was able to learn a significant amount of relevant information to us nonetheless.

So, pour a drink and brace yourselves….

The COVID Ban is not likely to be lifted any time soon.

Whilst there is broad-based pressure and lobbying taking place from all sectors and multiple industries to have the ban either lifted or amended, the White House at the moment is NOT being responsive to lifting the Presidential Order that implements the ban. Apparently, as the U.S. economy begins to return to pre-COVID levels and most parts of the country have seen COVID cases drop, they have no interest in risking those achievements—especially as new COVID variants continue to emerge. Additionally, there are large swathes of the U.S. still living in 1865 and whose denizens cower from the threat of reptilian aliens disguised as Italian waiters bearing vaccines laced with an implant designed by the Chinese to turn everyone in to gay socialists when activated by a space satellite owned by Iceland. At the moment, they are relying completely on the U.S. Centers for Disease Control and Prevention (CDC) to set COVID policy with regard to international travel. In the meantime, there are various lawsuits challenging the legality of the ban, but it will take a while for those to work through.

As opposed to becoming more streamlined (as we all had hoped), the process for obtaining an NIE is taking longer and has become more complex.

Though U.S. Consulates are titularly controlled by DOS, each U.S. consulate operates as an autonomous fiefdom in setting its own NIE policies, procedures, and requirements. As a result, inconsistencies are rampant and the situation is going to continue to be unpredictable, fraught with uncertainty, and with no clear paths or directives forthcoming.

For now, it continues to be the case that artists can only apply for an NIE at a U.S. Consulate in a country where they are either a citizen or permanent resident. However, whereas some consulates require the NIE request to be submitted via email with the ability to attach evidence and supporting materials, others will only allow you to request the NIE through the consulate’s website and give you a limit of 500 characters or less within which to do so.

For artists who need both an NIE and to apply for their visas, some consulates will first require you to schedule an appointment—even if it is not until 2022—and then submit the NIE request. Others will not even allow you to schedule an appointment without first being approved for an NIE. Still others may grant an emergency appointment, but then deny the NIE request at the time of the interview. Or, in an experience I had, approve the NIE request, schedule an interview, tell the artist at the interview that everything “looked fine,” and then took so long to issue the visa and return the passport that the artist missed the concert anyway!

It has also become the case that there are simply too many NIE requests being filed in too many circumstances on behalf of anyone and everyone who has a need to enter the U.S., regardless of whether or not they qualify for an NIE. This includes situations where the need for an artist to enter the U.S. is less in the “national interest” than in the “personal interest” of an artistic director who simply doesn’t want to book a different artist because he wants who he wants or in the personal interest of a performer who really needs the engagement fee (ie: which would be all of them right now.)

The U.S. consulate in London, for instance, claims they are getting as many NIE requests in 1 month than they would normally get visa applications. I can attest that whereas only a few months ago London would respond to my NIE request within 48 hours, it is now taking over 60 days. Some consulates, such as Paris, take even longer or never respond at all unless the NIE request has been approved. In addition, as there is no specific definition of “national interest”, all NIE requests for artists must now be submitted from a U.S. Consulate for DOS to make the determination and then inform the consulate which must, in turn, inform the applicant.

So, let’s quickly review what it takes for an artist to qualify for an NIE waiver:

Whilst the term “national interest” is undefined, it most certainly does NOT mean “cultural interest” or “talent” or that “the artist is very big deal.” It must truly be a situation where (i) a specific artist cannot be substituted with anyone in the U.S.; (ii) the entire event will be cancelled without that artist and cannot be rescheduled; and (iii) the cancellation will cause significant economic harm to a U.S. organization to a level that will make angels weep…or, at least, a consulate officer.

In the case of festivals, you must be able to show that the entire event will be cancelled without the artist and not just a single concert that is part of a larger event.

In the case of artistic directors or non-performers, you will need to address why their physical presence is mandatory and why they can’t simply have planning meetings by zoom…and needing to meet with donors face-to-face doesn’t count. The elderly can zoom as well if their grandkids show them how.

In the case of groups or ensembles, you will need to submit an NIE request on behalf of each individual artist and show that each and every member is required, cannot be substituted with anyone else, and losing even one member would cause the entire performance to be cancelled. Regardless, if you apply for 10, expect only 5 to be approved.

Also, if an artist was already in the U.S., left, and now needs to re-enter, they must have had a very good reason for why they left in the first place. As one consular officer explained: “now is not the time for vacations.”

However, there are a few smudges of positive news…

In a further effort to reduce caseloads, DOS announced just last week that if an NIE is approved it will be approved for 12 months and permit multiple entries to cover multiple engagements during that time. This is good news for artist and conductors who, assuming they are approved for an NIE, will no longer need to request an NIE each time they want to enter the U.S. Also, for those artists who have already received NIE approvals, this new policy will apply retroactively to them. [cite]

London and several other consulates (you’ll have to research which ones) have now lifted their prior requirement that an NIE request can only be submitted within 30 days prior to travel and will now permit an NIE request to be submitted up to 60 days in advance of travel.

Also, most U.S. consulates are no longer requiring that airline tickets be booked in advance prior to submitting an NIE request.

On the other hand, as for the significant backlogs and the inability of many U.S. Consulates to schedule visa appointments until 2022 (if at all), that situation is not likely to improve any time soon either.

First, as a result of COVID lockdowns and closures, most U.S. Consulates have a backlog of tens of thousands of applicants for everything from green cards to student visas to employment visas and who have been waiting for appointments for over 15 months. Second, President Mar-a-Lardo successfully gutted the budget of the DOS and over 400 officers were laid off. DOS has made requests for appropriations and more staff for consulates, but that would require Congress’s approval, half of which are, instead, focused on forming militias to fight the aforementioned vaccine threat and are ill-inclined to assist aliens—by them reptilian or European.

For the immediate future, DOS has given U.S. consulates unfettered discretion in determining how to prioritize their workloads with regard to scheduling visa appointments and granting emergency or expedite appointments. For the most part, U.S. consulates will prioritize applications for green cards, family unification, humanitarian cases, and those who have been waiting longer. Applications for new employment-based visas—such as O and P visas—will come last. In fact, many consulates claim that they can either process visa applications or NIE requests, but not both at the same time.

In a pathetically miniscule gesture of addressing the issue, DOS has expanded the ability of consulates to waive the in-person interview for individuals applying for a visa in the same classification they have held before. Previously, only those whose prior visa expired within 24 months were eligible for an interview waiver. This has now been expended to 48 months. So, for example, if an artist had an O-1 visa in 2019 and has now been approved for a new O-1 for 2022, she may be eligible to request a visa interview waiver and just mail in her passport without being required even to go to the consulate. But, of course, “eligible” does not mean “entitled” and waivers remain discretionary and inconsistent, so never assume.

For artists who may not easily qualify for an NIE, how does a Caribbean vacation sound?

If an artist holds a valid O or P visa covering the time they need to be in the U.S., then it is far easier just to travel to a third country not on the banned list, wait there for 14 days, and then enter the U.S. There has been far more success with this approach, than with obtaining an NIE. In fact, several artists I work with have successfully travelled from Europe to the Caribbean prior to entering the U.S. However, each country has its own COVID regulations as to who can enter, so those will need to be researched in advance to travel.

If an artist has an approved O or P petition, but needs to apply for a visa and cannot get an appointment at a U.S. consulate and/or does not qualify for an NIE, the artist can try and apply at a U.S. consulate in a third country that is not on the banned list. However, not all U.S. Consulates will accept visa applications from non-citizens of the country in which the consulate is located.

For example, The Bahamas are happy to let you enter and enjoy their turquoise shark-infested waters for 14 days, but the U.S. Consulate will not let you apply for a visa there unless you are a Bahamian citizen. On the other hand, Barbados will allow you to relax in the sunshine of their smiling island (look at in on a map!) and the U.S. Consulate will also allow you to apply for a visa. Similarly, Mexico will allow you to enter and enjoy an unlimited margarita bar for 14 days and you can then fly into the U.S. (the land border is closed.) However, non-Mexican citizens cannot apply for visas at the U.S. Consulate unless it is a significant emergency. On the other hand, Canada’s poutine palaces are closed to you if your only reason to be in Canada is to enter the U.S. after 14 days or if you are entering solely to apply for a U.S. visa.

Remember airports?

A few of you lovely readers may recall that for a brief period of time in 2020, NIE requests could be submitted in advance to a CBP office at certain airports where an artist planned to arrive in the U.S. Then, in early 2021, that policy was changed and all NIE requests had to be submitted to a consulate. Now, CBP is back—but with restrictions.

You can once again submit an NIE request to a CBP office a major airport, but ONLY if the NIE request was first submitted to a consulate and the consulate never responded or denied the NIE. However, CBP and DOS are two separate agencies and do not confer with one another on policies and procedures. So how long you need to wait for a consulate to respond before being able to send an NIE request to CBP varies from airport to airport…and each one has a different process. So, like with NIE requests at consulates, you will need to research those on a case-by-case basis as well.

So, where do we go from here?

If you are a non-US artist currently in the U.S. in O or P classification and you need to travel to a country subject to the COVID Travel Ban—don’t! I have had many artists not listen to me on this and get stuck.

If an artist must travel or is traveling from a country subject to the COVID Travel Ban, it is strongly recommended that they plan to travel to a third country for 14 days before trying to enter the U.S. The expense and time notwithstanding, it’s easier and, so far, has been more dependable than obtaining an NIE. However, never travel to a third country without first research that own country’s COVID requirements and, if applicable, whether you can, in fact, get an appointment at the U.S. Consulate there.

If you plan to seek an NIE and/or need to apply for a visa on behalf of an artist, you must do research and have a plan. As always, whilst anecdotal evidence can be a great way to start, all cases are different and experience is subject to change.

When applying for an NIE, make sure the artist actually qualifies. Please be genuinely self-reflective and do not submit an NIE for every artist or ensemble just because you want to “give it a shot.” You are only making it worse for everyone else by bogging down the process. Regardless, if you do apply, rarely will you be able simply to simply submit a letter from a manager explaining how important the performance or the artist is. For consulates which permit you to submit evidence, submit actual evidence, including letters from the venues and presenters.

At this stage, do NOT plan for most if any, non-U.S. artists to be able to enter the U.S. to perform in late summer or early fall. Or, at least, have contingency plans.

As we experience COVID variants such as delta, delta plus, and delta business with a free booster shot, continue to expect delay and postponements, possibly into 2022.

As, for the moment, USCIS is processing petitions fairly rapidly—in 6 – 8 weeks for standard processing—get petitions in early and get that over with.

Research, plan, and plan some more. Do not, as one presenter bewailed to me after an artist was refused entry, say: “I just never thought this would be a problem.”

Perhaps it was a bit presumptuous to believe that emerging from the darkness of the last 15 months would involve a light immediately being switched on with regard to international artist travel and proceeding with planned international engagements and performances. Rather, this is going to be more like a slow sunrise with intermittent bursts of COVID surges and clouds of government incompetence.

Perhaps most importantly, the time you waste writing yet another letter to yet another politician complaining about how broken the U.S. immigration system is (and it is!), explaining why it puts artists and the arts in a distinct disadvantage (and it does!), and arguing why international artists are critical to the cultural, intellectual, educational, and economic interests of the U.S. (and they are!) could be far better spent on planning, researching and strategizing—on this, as well as many other issues that I shall leave for another day. Our industry has never been an easy one and there is no rest for the weary, but we have martinis, medication, therapy, and working with wonderful colleagues to get us through.

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

VISIT OUR NEW WEBSITE: ggartslaw.com

___________________________________________________________

THE OFFICIAL LEGALESE:

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 or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.

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

IS IT TIME FOR ARTISTS TO RETURN TO THE U.S.?

Thursday, May 20th, 2021

The COVID Travel Ban, Significant Consulate Backlogs, and Other Current Issues For Non-U.S. Artists

By Brian Taylor GoldsteinSorry for the long delay since my last post, but, well…it’s been an interesting year, to say the least. Things are improving, but 2021 still needs more rehearsal time to work the kinks out. Here in New York City, some signs of normalcy are beginning to return. People are feeling safe enough to pee in the subway without their masks, the costumed characters in Times Square are again groping without hand sanitizer, and the rats are no longer practising social distancing when they spy a dropped pizza crust.  As signs of life begin emerging in the world of the performing arts as well, artists and presenters are once again thinking internationally, including bringing artists and ensembles to the U.S. as soon as this summer. Which means, of course, we need to check in on the landscape of artist visas.

WARNING: This could all have changed by the time you read this, so read quickly!

Things have actually already shown signs of improving since Lord Voldemoron was defeated. Among them, USCIS processing times for visa petitions have shortened to approximately 1 to 3 months and a number of the King Babycoward’s more draconian policies have been reversed. However, a number of challenges still remain, not least among them is that the COVID travel ban remains in place. As a reminder, this means that anyone traveling to the U.S. from the European Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, and Vatican City),  United Kingdom, Ireland, Brazil, South Africa, or India cannot enter the U.S. without EITHER traveling to a country not on the list and quarantining there for 14 days before entering the U.S. OR qualifying for an exception to the ban.

There are various exceptions for immediate family members of U.S. Citizens spouses, medical professionals, and people coming to help fix roads and bridges. However, there are no automatic exceptions for artists. For artists to get a waiver from the ban and enter the U.S. without first having to quarantine in a non-banned country, they must qualify for the “catch-all” exception of showing that it is in the “national interest” for them to be allowed to do so.

Getting a National Interest Exception for an Artist

It is not meant to be easy to get an artist approved for a National Interest Exception (“NIE”). It’s called a “exception” for a reason. However, as with everything the U.S. touches in the realm of immigration, it’s quagmire of inconsistencies.

Requests for NIE’s are submitted to the U.S. Consulate in the country where the artist is either a citizen or a permanent resident. Every consulate has its own policies and procedures for how you submit the request and how they determine whether an artist does or does not qualify for an NIE. There are no standard rules or procedures. In fact, at the moment, a few U.S. Consulates, including Vienna, have incorrectly taken the position that artists are not eligible for NIEs at all! Others just make up the rules by cutting the head off a chicken and seeing where it flops down on a giant procedural bingo card. This is frustrating…nay, maddening. However, this has always been the case. Historically, regardless of who is in charge or who controls Congress, there has never been any consistency, predictability, or reliability in the entire process of obtaining artist visas. It ebbs and flows. Nothing new to see here.

Based on the NIE requests we have had approved, the consulates we have been dealing appear to require the following:

(a) a major or significant artist;

(b) entering the U.S. to do something important for a major or significant U.S. venue or presenter; which

(c) cannot be done without the artist; and which

(d) would cause dire economic or institutional consequences if the concert or event were to be cancelled.

In short, the ideal candidate for an NIE would be a music director, stage director, soloist, or major artist entering the U.S. for a specific high-profile performance for a specific high-profile venue that is either part of the venue’s or organization’s much heralded return to live performances or which will be raising significant funds for the venue or organization after a year of being closed. In other words, the artist’s presence in the U.S. must be critical to the economic survival of the venue or presenter or the venue or presenter’s community. This means, for example, that a musician entering to perform as a member of an orchestra (as opposed to a soloist) or to perform at a festival with multiple concerts and events (unless the artist is a headliner) is highly unlikely to be approved for an NIE…regardless of who you know, what contacts you have, or how badly the artistic director stamps their feet.

If you plan to submit an NIE request, here are a few important things to keep in mind:

  • In addition to providing a copy of the artist’s passport and O or P visa, you will need to provide (1) a letter from the venue or presenter (NOT THE MANAGER OR AGENT) explaining why the artist is so significant to whatever it is they need them to do that the organization’s future will be imperilled if the event or performance is cancelled and (2) A letter from the artist (AGAIN, NOT THE MANAGER OR AGENT) explaining why the artist cannot travel to a country not on the banned list and quarantine there prior to entering the U.S. (Most often, it will be either because the artist has other professional commitments in the country or that other travel bans prevent them from easily being able to go to other countries.) I also include background information on the artist as well as the venue or organization.
  • A request can only be submitted to the U.S. Consulate in the country where the artist is either a citizen or permanent resident.
  • The artist must be physically present in the country at the time the request is submitted.
  • Once the request is submitted, the artist cannot leave the country and, if the NIE is approved, must fly direct from that country to the U.S. (Connecting flights in the U.S. are fine, but the artist cannot connect through another country on the COVID ban list.)
  • A request cannot be submitted earlier than 30 days prior to the date the artist needs to enter the U.S.
  • At the time the request is made, the artist must have confirmed airline tickets.

Once an NIE request has been submitted, some consulates will get back to you within 48 – 72 hours, others will take a few weeks, and others may not respond at all. Recently, London has been getting back to me within 24 hours—but, as you will see below, will find other ways to thwart your plans.

What If An Artist Has Been Approved For An O or P Visa, But Has Not Yet Received the Visa?

 

At the moment, most if not all consulates are either closed or are not accepting routine visa applications. In London, for example, there are currently no visa appointments available until October 2021. If an artist does not already hold an O or P visa, then at the same time they submit an NIE Request they will also need to request an emergency appointment. If the NIE is approved, then the artist will be given an emergency appointment date to come to the consulate and apply for their visa. If not, then the artist will need to wait until the consulates re-open. (I have some artists who have been approved for O or P visas, but have been waiting over a year to be able to apply for them.)

LONDON CONSULATE WARNING: I recently had an NIE approved by the U.S. Consulate in London for a UK Violinist who had been approved for an O-1B visa, but need to apply for the actual visa stamp. He was given an emergency appointment, went in, was told everything was in order, and that his visa would be issued asap…and after 3 weeks still had not received his visa. So, he had to cancel his U.S. date regardless of having obtained an NIE. (And, yes, we tried all of the available back channels—all of which proved to be backed up.)

Can Orchestras and Ensembles Get NIEs?

Anything is possible, but this is highly improbable for a number of reasons. First, NIE requests are submitted and approved on an individual basis. You cannot submit an NIE request for an entire group. A request would need be submitted on behalf of each musician and each person would need to qualify separately–which would not only prove unwieldy, but runs the risk of not everyone getting approved. Second, as you can’t apply for an NIE more than 30 days in advance of the travel date and you must have booked flights at the time you submit the request, you would have to incur the costs of air travel for an entire orchestra before even knowing if you can travel. And, third, there is the issue of getting emergency appointments for everyone when it’s hard enough to get an appointment for a single individual.

When Will The Ban Be Lifted?

Excellent question. I have no idea. Seriously. No idea. Nada. Nix. Please stop asking me. My expectation, based on nothing more than my intuition and speculation, neither of which have ever proven that reliable, is that rather than lifting the ban entirely, a new exception will be created for people who are vaccinated. But, seriously. I don’t know. There are a lot of rumours. I’ve heard them too, but please don’t rely on any of them. When these things are announced, we will all learn at the same time. Maybe by the end of May. Or not.

The only good news, such as it is, is that, unlike in the days of Uncle Scam in which the COVID ban was used purely as a tool to frustrate immigration, the current status of ban is based solely on COVID with no ulterior motives. Also, as the ban is causing significant economic harm to many different sectors of the U.S. economy, there is significant pressure to get it lifted or amended as soon as possible. In other words, we are not alone and a lot of pressure is being put on the Biden administration to lift the ban immediately.

What Will Happen When The Ban Is Lifted?

Once the COVID ban is lifted (or additional exceptions are created for those who are vaccinated), then the consulates will eventually fully re-open. However, the U.S. State Department has already issued warnings to expect delays as they work through a backlog of over a year of cancelled appointments. Those who had their appointments cancelled in 2020 will be given priority. I suspect this will make emergency appointments harder to qualify for, but this is all quite fluid. Again, no one knows. With luck, the expectation is that consulates will be allocated new staff as well as additional funding to expedite the backlog. Again, as there are many industries being impacted beyond the performing arts, all with more money and political influence, there is significant pressure to facilitate international travel as quickly as possible. Everything from tourism to trade depends upon it. Nonetheless, the artists, venues, and presenters we are working with are all being advised to have contingency plans and flexible expectations at least through the rest of 2021.

What about USCIS? What Are They Up To?

While we are joyously seeing fewer RFEs, officers loyal to the ploys and prejudices of the Tangerine Anus remain. As a result, we are still seeing a few spiteful RFEs asking that artists who remained in the U.S. during 2020 produce paystubs to prove they were not on unemployment and were not in violation of their O or P status. But maniacal spitefulness, a deranged sense of paranoia, and the intellectual capacity of a peeled grape have always been among the qualities USCIS seeks when hiring officers, so, again, nothing new to see here.

In summary, things are improving. The performing arts are coming back the way we all know they would. The industry might look different, but a beach always looks different after a hurricane sweeps through. Eventually, the sun comes out and we all go back in the water. We just may need to wait a bit longer for the waves and rip-tides to subside.

__________________________________________________________

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

VISIT OUR NEW WEBSITE: ggartslaw.com

___________________________________________________________

THE OFFICIAL LEGALESE:

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 or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.

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

HOW TO FIX EVERYTHING

Thursday, January 28th, 2021

EXPLORING NEW BUSINESS MODELS AND PRACTICES IN THE PERFORMING ARTS IN A POST-COVID WORLD

By Brian Taylor Goldstein

Aside from thwarting a clown car coup, 2021 is certainly not off to the auspicious start we all had hoped for. Nonetheless, it is with trepidatious optimism that we find ourselves crawling out from our burrows like traumatized cicadas as we look towards re-establishing and re-building the world of live performing arts.

We have lost treasured venues, ensembles, businesses, and colleagues. Much, if not most, of the scorched earth we find will be attributable to the ravages of COVID. However, much will also be due to old and outdated business models and practices that were just waiting for an unperceivable pufflet of wind to topple them, much less the ravaging hurricane of a global pandemic. As we survey the damage, now is the time to consider rebuilding and reimagining those business models and practices. There’s nothing like the opportunity of a disaster to build a toppled house back on a better and stronger foundation than that on which it was built before.

As such, it was with the greatest enthusiasm and exhilarating gratification that I have of late been asked to weigh-in on numerous proposals from various groups and interests within the performing arts industry wanting to change the way business is done. This has quickly been followed by the resounding despair and blinding dismay of having repeatedly found myself reviewing not imaginative and daring visions of the future, but attempts to re-clothe and re-animate the cadavers of the past. Proposal after proposal has been premised upon the belief that changing the business “model” in the performing arts industry means finding a way in which various parties—presenters, venues, artists, managers, producers, promoters, labels—can come together to agree upon common practices and contractual terms so that we can all go back to “business as usual.” There have been cries of “we need to change the way the business works” and “we need to get everyone together and implement new industry standards and practices to which the vast majority of people would agree to implement.”

 The prevailing thought appears to be that if we can all just agree on “standard” terms for things such as insurance, cancellations, minimum booking fees and formulas, recording rights, and even timing for issuing and returning contracts, then everyone can breathe a collective sigh of relief and go back to negotiating and focusing only on fees, dates, planning, and repertoire—in other words, the more inspiring and fulfilling parts of the business.  I’ve read proposals that include such suggestions as “all engagements should provide for deposits and rehearsal fees” (I agree) to “there should be standard media terms that would automatically allow for streaming rights and recordings” (I do not agree) to finding new Force Majeure language that would “…make sure future pandemic events are not cause for cancellation” (Seriously?).

None of these proposals focus on the true crisis before us: the exploration of whether or not the business structures, plans, and methodologies upon which venues, presenters, producers, managers, agents, labels, etc. are run and managed need to be re-thought and re-imagined for a new age and new realities. Instead, what I have seen thus far is not unlike neighbors in a beach community finding their homes devastated by a hurricane and deciding not to rebuild on stronger foundations further away from the shore, but to put everything back exactly the way it was before, except, this time, mutually agreeing to paint their shutters all the same colour.

These concept of implementing standards and practices that everyone will agree upon arises from the long-cherished delusion that there exists a legendary grimoire of industry standards and practices that merely needs to be dusted off, amended, and updated for the 21st century. If everyone merely agrees to abide by this book, then peace will be restored to the kingdom. The trouble is…no such book exists…and no such book has ever existed. The only industry standards in the performing arts industry are that there are NO standards! To be sure, there are opinions. Strong opinions. We’ve all encountered comments such as “this is how the opera world does it” and “this is not how we do it in jazz” and “that’s not how commissions work.” However, if you polled a cross section of any segment of the performing arts about any given topic, you will find a significant divergence of opinion as to what is and what is not “standard.” What any one person believes to be standard may simply be based on their own limited experience in their own tiny corner of the industry.

To be sure, there are ways to structure some deals and transactions that are more common than others, and there is no reason to reinvent wheels where others have already figured out reasonable ways to build them, but there will always be circumstances warranting different arrangements for different organizations, individuals, projects, and budgets. More often than not, the term “industry standard” is thrown about in lieu of admitting “this works for me and I’d rather not change.” Worse, it’s often employed as a form of peer pressure to circumvent negotiation or compromise by making the other party feel that they are either too ill-informed or ill-experienced to realize the absurdity of whatever very reasonable proposal they may have just made.

So, if there are no industry standards, why can’t we all just get together and create some? If enough people agree on common contract terms and procedures, then wouldn’t that compel everyone else to fall in line and do it the same way? If everyone agrees to abide by what we all agree is fair, doesn’t that take away the risk of anything being unfair?

First, there are the practical challenges of defining even sub-segments of an industry as diverse as the performing arts, much less getting them all together and mutually agree upon  common procedures for how anything works: bookings, recordings, commissions, rehearsals, etc. There are large and small venues and presenters. For-profits and non-profits. There are different genres. Different audiences. Different goals and missions. Commercial and non-commercial producers. Etc. Etc.

Second, but by no means least, in most countries this is also illegal.

Let’s say that we all agree amongst ourselves that artists should be paid deposits (which, again for the record, I agree with—if you can’t hire a wedding caterer or a building contractor without a deposit, why are artists expected to be paid only after work is done?) What if a huge, prestigious producer or orchestra offers an engagement, but refuses to pay a deposit? Are you going to walk away and refuse to accept the date? Probably not. The reality, of course, is that unless an artist has enough prestige and clout to demand their own terms, then there are always more artists than there are venues and presenters. This, naturally, gives stronger negotiating power to presenters, producers, and venues. This is also called “Show Business.” But what if all the artists or their representatives get together and agree that they will all demand the same terms for all artists? If all the artists and their representatives stick together, then venues and presenters will be forced to comply, right? Not so fast. If a group within any industry unifies to set standard terms and practices with which all members of the group will be required to abide and with the purpose of coercing or compelling other businesses to agree to such terms and practices or else be excluded, this is called “collective bargaining.” In the United States, at least, only authorized unions or organizations are allowed to do that. In addition, any group of businesses within an industry that teams up or forms a monopoly in order to set the terms and conditions within that industry can be held to be in violation of various anti-monopoly and trade practices laws. In the U.S., for arcane historical reasons, these are called anti-trust laws.

So, does this mean we all just throw our hands up and surrender ourselves to a world of unfettered, Darwinian capitalism where ticket sales and popularity alone determines the future of the performing arts? Absolutely not! It is and will always be critical for the various groups and interests that comprise the performing arts world to come together to discuss mutual concerns and issues and how best to address them collaboratively. However, in any business enterprise, whether it exists within the performing arts or any other business sector, exploring new business models means looking inward to how you currently conduct your own business—not someone else’s. What services do you provide or offer? Is there a demand for those services? What are those services worth? What are your streams of income and revenue? Are you too reliant on either passive or active income? Who is your competition? What is your sustainability? What makes you unique? Are you over staffed or understaffed? Do you need to learn new skills? Are there better ways to fulfill your mission, goals, or creative aspirations?

Exploring a new business model is not a group activity. It is purely an inward journey. An act of self-introspection and challenge that cannot be done by committee. It is done in the depths of the night, alone, often with Slipsmith gin and two olives. Any business facing an existential challenge of survival does not address the problem by reaching out to other businesses with suggestions of what they should be doing to help the field or make your life easier. Rather, what are YOU doing that may need to be changed, rethought, or reimagined and what can YOU do to help yourself? Are there treasured customs, practices, presumptions, and assumptions that you are loathe to give up? Perhaps it is YOU who needs to turn away from industry standards (whatever you believe them to be) and try something different. For example, are the traditional roles and services of agents and managers still relevant? Do we need to continue planning concerts and performances around a fixed “season?” Does an artist really need a label to release and promote a recording? Are there other ways to monetize and promote artistic and creative services to create more diverse streams of income for artists as well as venues, theaters, and producers? Are performing arts unions today advocates or hindrances for their artists? Is there a role for more immersive experiences in theatre and concerts? Does the commission model continue to make sense for artists and their representatives? Is there a continued role for booking conferences? Are you still sending out paper press releases? Are you ignoring the role of social media and other interactive technologies? Are there diverse faces and voices in your audiences or on your stages? Are there more ways for popular and less popular genres to collaborate? Should dysfunctional non-profit organizations continue to be the default business structure for certain artistic genres? Do all classical concert and recital halls have to be an anesthetizing mélange of browns and beiges? Perhaps the time has also come to bridge the ancient abyss between arts and entertainment and explore aspects of entrepreneurialism that can be borrowed to further the sustainability of our highest artistic standards and endeavors.

There are no right or wrong answers to these questions. In fact, these are all questions that have long been proposed, discussed, tossed about, disputed, debated, and then dismissed into the rubbish bin to be addressed another day. However, that day has come. This is it. The tide of COVID has swept our businesses off their foundation. Do we build them back better and stronger than before, or build them back the same, but with colour-coordinated shutters?

_________________________________________________

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

VISIT OUR NEW WEBSITE: ggartslaw.com

 

 

__________________________________________________

THE OFFICIAL LEGALESE:

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 or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.

 

Posted in Artist Management, Arts Management, Contracts, For Profits, Law and Disorder: Performing Arts Division, Non-Profits, Publishing, Recordings, Unions, Venues | Comments Closed

WE ALL NEED TO STREAM SOMETIME

Monday, June 15th, 2020

(Understanding Streaming Rights)

As we all try to figure out how to cobble the performing arts world together, more and more venues, presenters, and artists are turning to streaming–live streams, virtual performances, and showing archived footage of previously recorded concerts.

For now, these efforts are critical as a means to stay connected with audiences. Soon, these will need to be turned into additional revenue streams as well. Regardless, this is unchartered territory for many, particularly with regard to the rights and licenses necessary to stream performances and recordings.

But first things, first: We need to clear up a few definitions.

“Streaming” is where you upload a recording to a source or platform so that it can be heard or watched by an audience over the Internet. While this can be done through your own website or server, most recordings and videos are viewed through a third party platform such as YouTube, Instagram, FaceBook, Vimeo, SnapChat, Netflix, YouTube, Hulu, Pandora, Spotify, TikTok, RiffRaff, Taffeta, Titipu, KoKo, PishTush, PoohBah, and YumYum, among others.

Don’t be confused by the terms “Streaming” and “Live Streaming.” They mean the same thing. Remember, there is no standard terminology in the performing arts industry. Whether you intend to stream an archival recording of a performance, create and stream a new recording made in a studio or venue, broadcast a live concert to an audience who can watch it in real time as it is taking place, make a recording available for free, or make a recording available on-demand for a fee, these are just various types of “streaming.”

The key distinction is that a streamed recording remains at all times on the platform for the audience to watch only through the platform and cannot be downloaded. Downloading is when you are able to take a recording from the Internet and copy it from the platform to your own computer or phone. Apple I-Tunes, for example, is a downloading platform whereas Apple Music is a streaming platform. Streaming is like listening to the radio in your car. Downloading is like buying the CD. Similarly, Amazon Prime gives you the option of renting a movie to watch for a fixed period of time or buying a copy of a movie to download and watch on your own devices.

Whether using an archival recording or streaming a live concert, Obtaining the necessary rights and licenses to stream a concert or performance essentially involves the same considerations and questions you would ask (hopefully) with regard to presenting any live performance:

  • Do you need a license from the owner of the music to perform the music? 
  • Do you need a license from the owner of the music to use the music as part of a musical, dance performance, or opera?
  • Do you need a license from the owner of the music to make re-orchestrations, new arrangements or significant adaptations?
  • Do you need a license from the owner of the music to record and stream the performance of the music?    
  • Do you need a license from the performers to record and stream their performance?
  • Do you need a license from the owner of the recording of the music to stream the recording?

Essentially, to get permission to record and stream a performance, you will potentially need licenses from three different parties:

  1. The Performer(s)
  2. The owner of the music
  3. The owner of the recording

Licenses From The Performer(s)

If your intent is to stream an archival recording, you will need to ensure that you had the right to make an archival recording in the first place and what you are allowed to do with it. This should have been spelled out in the initial engagement contract for the performance. If not, you will need to go back to the artist(s) and request permission to stream the existing recording.

If you are seeking to create a new recording or record a live concert for streaming, then among the other engagement details you will need to request permission from the artist(s) to record and stream the performance. Certain artists, particularly orchestras, may have union contracts or other restrictions (such as exclusive recording agreements with labels) that will not permit any recordings or streaming without additional licenses and fees.

Even if you get all of the necessary licenses from the artist(s) to record and stream their performance, you are only a third done. Remember, unless an artist is recording her own music, artists do not control the music they perform. So, just because an artist gives you the right to make and stream an archival recording of the artist or the right to record and stream a live performance, you will still need to obtain permission from the owner of the music to perform, record, and stream. 

Licenses From The Owner of The Music

Any time you intend to perform music at a live concert, you need permission to perform it (what I like to call “stand and sing.”) Except for instances of music being used as part of a musical, dance, or opera production, such permissions are most often arranged by purchasing performance licenses through Performing Rights Organizations (PROs) such as ASCAP, BMI, SESAC, GRM, etc., when you purchase a performance license from a PRO, the terms of the license will govern what you can and cannot do with the music as part of the “performance.” Like everything else, nothing is standard. Everything depends on the type and terms of the license you purchased. These will differ from nightclubs to non-profit venues to schools to for-profit theatres, etc, so you will need to read your specific license to see what you can and cannot do and what additional rights you might need. However, here are some generalizations:

  • More often than not, streaming is covered in a performance license as long as the end user is viewing the recording on a platform licensed by the PRO, such as YouTube, Instagram, FaceBook, Vimeo, SnapChat or TikTok. Embedded, proprietary players owned by these licensed platforms (YouTube being the most common example) and embedded into the presenter website are also covered.
  • More often than not, streaming from the websites of colleges and universities (.edu) are also usually covered by the performance license.  
  • More often than not, streaming directly from the website of an artist, venue, or presenter is NOT COVERED without obtaining additional licenses. This is true of live streaming as well as archived videos of past performances. So, when in doubt, always opt to stream through a platform already licensed by the PRO.
  • Downloadable recordings are NOT COVERED. These rights need to be obtained directly from the owners or publishers of the music. Most PRO’s cannot issue such rights.
  • Performance licenses also do not cover the performance of music as part of a musical, dance performance, or opera. Those licenses must be obtained directly from the owner or publisher of the music. Most PROs cannot issue such rights.
  • Most performance licenses do not include the right to make re-orchestrations, new arrangements, or significant adaptations of the music. Those licenses must be obtained directly from the owner or publisher of the music. Most PROs cannot issue such rights.

Licenses From The Owner of The Recording

An oft overlooked concept is that recordings are separately, copyrightable creations. When a recording is made, it is owned by the person or organization that made, edited, and mastered the recording and NOT by the owner of the music which was recorded and NOT by the performer who performed it. (Believe me, this comes as quite a shock to composers and performers who presume that if they are on the recording then it’s also theirs to use.)  So, once you get all of the necessary rights and licenses to record and stream a performance, you will also need to make sure that you obtain permission from the person who recorded it—even if it is a volunteer or a member of your staff. In fact, especially if it is a volunteer. Short of children performing with fire and audience sitting on broken glass, volunteers are often the largest source of grief. (Ok, there’s also the board to consider, but I digress.)

A few final thoughts:

Everyone needs to obtain rights and licenses regardless of whether or not you charge a fee to watch the streaming concert.

  1. If you don’t know what rights you already have or what rights you need, always reach out to the performer(s), the owner of the music, and the owner of the recording. Never assume or just hope that someone else with do the “right thing.” The “right thing” is an extraordinarily subjective concept.
  1. Anyone can charge whatever they want to issue a license, or not charge anything at all, or refuse to issue a license for any reason. Everything is subject to negotiation as influenced by each person’s degree of largesse, munificence, guilt, desperation, fear, uncertainty, pride, greed, wrath, envy, lust, gluttony, and sloth.
  1. There are no special Covid-19 exceptions.
  1. There are no special non-profit or school exceptions.
  1. Everyone is screwed right now. No one is more or less screwed than anyone else. Everyone is going to need to compromise if we are going to survive this.

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

THE OFFICIAL LEGALESE:

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, Licensing, Music Rights, Uncategorized | Comments Closed

USCIS JUST THREW ARTISTS A CRUMB!

Tuesday, April 7th, 2020

Unemployment and the CARES Act For Non-US Artists

April 7, 2020

By Brian Taylor Goldstein

Shocking as it may sound, USCIS has passed a tiny wind of hope in the direction of artist visas during this coronavirus pandemic.

The Department of Homeland Security (which sets the policies for USCIS) has confirmed that applying for unemployment benefits and/or applying for benefits under the recently enacted Coronavirus Aid, Relief, and Economic Security (CARES) Act WILL NOT be taken into consideration as violations of the Public Charge Rule when reviewing petitions for O or P status or green cards. (This does not include Medicaid or any government program (other than unemployment or CARES) which requires a “means test”—ie: programs which require someone to show that they make under a certain level of income.

It remains to be seen as to whether or not applying for or receiving unemployment benefits will later be insidiously used by USCIS as a “gotcha” under the separate rule that if an artist becomes unemployed, they are not authorized to remain in the U.S. and look for work and are required to leave. So, applying for unemployment benefits could “theoretically” still be used by USCIS as an admission by an artist that they have no work. However, as I wrote last week, USCIS has also generally, sorta, kinda, implied that they will be “reasonable” in light of the Covid-19 situation…and that’s about as good as you’re going to get from them until they change their minds.

For now, if any non-US artist finds themselves furloughed or unemployed, which is likely to be most of you, you may now take advantage of whatever unemployment and/or CARES benefits you may be entitled to. So glissando, tap dance, and project your way to those websites and start applying before the airlines and pharmaceutical companies gobble all the funds up. Godspeed.

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

THE OFFICIAL LEGALESE:
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, Employees, Law and Disorder: Performing Arts Division, Uncategorized, Visas | Comments Closed

A CORONAVIRUS VISA ROUNDUP FOR NON-US ARTISTS

Tuesday, March 31st, 2020

Cancelled Engagements, Unemployment, Layoffs, and Visa Renewals

March 31, 2020

By Brian Taylor Goldstein

As the tumbleweeds blow through Times Square and we begin to consider the viability of Easter peeps or even kale to supplement the dwindling toilet paper supplies, there is an understandable amount of angst and confusion on many fronts. Not least among them are non-U.S. artists who find themselves trapped inside the U.S. with no engagements, or with visas about to expire, or, like so many, laid off or unemployed.

There is a lot of conflicting information out there primarily because U.S. immigration policies are determined by the U.S. Government which has provided little or no direction on these issues; they are far too engrossed trying to quell the spread of the Coronavirus through sacrificing chickens, burning witches, assessing blame, and finding new and enthralling ways of praising and consoling Our Dear Beloved Leader and Perfect Incarnation of The Appearance That A Leader Should Have.

So, in no particular order, here is an update of what we know (or sort of know based on what we can surmise from what we know.) Premium Processing

1. Premium Processing
In case you have not already heard, USCIS suspended Premium Processing effective March 20, 2020. Until further notice, any future petitions filed with premium processing will automatically be sent to standard processing and your premium processing fee returned. Current standard processing times are ranging from 3 – 6 months at both of the paradoxically named USCIS “service” centers.

2. Artists Trapped In The U.S.
Due to the quagmire of travel restrictions, cancelled flights, and border closures, there are a number of artists who find themselves stranded in the U.S. with visas about to expire and who are unable to leave. Has USCIS has made any special exceptions or provisions for artists who may be forced to remain in the U.S. beyond the expiration date of their visa until they can fly home? Certainly, they will not be rounded up as enemies of the state? To the contrary, if an artist finds themselves in the U.S. in such situation, then before their current visa expires they will need to file a petition either to extend their current status and extend their stay, or change their current status to a different status and remain.

Here’s a real life question we received on this issue:

My O-1 visa expires in May. I was approved for a new one starting in August. My petitioner did not ask for an extension of stay because I was supposed to fly home for a summer festival, but that has been cancelled and now I want to stay in the U.S. What are my options?

If the artist has some engagements in the U.S. between May and August (which is unlikely, but possible), then prior to May she could file a new I-129 petition (which would basically be the old one re-copied and re-packaged) asking for an extension of stay. However, if she does not have engagements to justify her remaining in the U.S. on an employment visa, then prior to May she will need to file an I-539 petition to change her status from O-1 to visitor (B-1/B-2). Of course, to file a new I-129, she will need to pay the USCIS filing fee of $460. To file an I-539, she will need to pay the USCIS filing fee of $370, plus a biometric fee of $85. Biometrics consist of going to a local USCIS office to be photographed and provide fingerprints. However, all local USCIS office are all closed. So, presumably, the I-539 petitions will just get put on hold—which is probably a good thing as she can stay in the U.S. while the petition is pending. I should point out that in 99.99999% of cases, I-539 petitions are denied, so they are really only useful to buy time.

3. Consulates
Most of the U.S. consulates around the world have closed. London, for example, is currently not taking appointments until July. We do not know when they will re-open. We asked the U.S. Department of State and were told: “April! No, June? Wait! They’re closed? They’ve always been closed. I mean, open. They’re open now, just closed to the public. Temporarily.”

4. What Happens To A Visa If An Artist Is Laid Off?
Here’s another real life scenario:

We are looking for information about the impact of layoff on our O-1 visa holders. The remainder of our performance season has been cancelled. At this time we are continuing to pay our performers as per the schedule that is in their contract. Unfortunately the possibility of a layoff is looming. How would this impact the O-1 visa holders? Are their visa’s invalidated if we have to do layoffs?

Fortunately (sort of), as non-US artists are required to have artist visas to perform in the U.S. regardless of whether or not they are paid, a layoff, per se, does not impact the validity of their O-1 visas. Rather, the issue is whether or not the artist’s services will be required at all. In other words, are we dealing with a cancelled performance or a re-scheduled performance?

If an artist was approved for an O-1visa to perform in a specific engagement or production, and that engagement or production is cancelled, then they are required to leave the U.S. as, unless they were approved for a multi-employer visa, they no longer have a reason to be here. However, if the scheduled performances are merely being re-scheduled for a later date during the validity period of the artist’s existing visa, and the artist’s services will still be needed, then I would argue that they can remain in the U.S. regardless of whether or not they are paid—they just won’t be able to work. In other words, a layoff means they are still employed, just not getting paid.

Whether or not the artist can afford to remain in the U.S. without being paid is another issue entirely…and which leads to the next question.

5. What Is The Impact On A Visa If an Artist Applies for Unemployment or Medicaid?
Here’s a hard one:

As you probably already know, all of my concerts until June have been cancelled, thus putting me into a difficult situation financially. I wanted to consult with you whether it would be a good idea for me to apply for unemployment benefits, or is that going to jeopardize my current O-1 status and future potential status?

Unfortunately, this creates two not insignificant problems:

  • (a) Under Trump’s recently enacted “public charge rule,” applying for any kind of public assistance (unemployment, Medicaid, etc) could be used to deny and/or delay future visas or green cards. When the artist next needs to obtain a new O-1, if he elects to remain in the U.S. and seeks an extension of stay, he would need to disclose that he applied for and/or received public assistance. This will lead to his being required to explain why and seek a waiver. USCIS has indicated that they will be “reasonable” in light of the Covid-19 situation, but we have no idea what that means. I trust USCIS about as much as trust my mother when she asks for my honest opinion. Alternatively, the artist could avoid this question by leaving the U.S. when his current visa expires, applying for a new visa at a U.S. consulate, and then re-entering. However, should at some point in the future he want to apply for a green card, he would need to disclose the public assistance and request a waiver at that time.
  • (b) The other problem is that O and P visas are “employment-based” visas, which means an artist is only authorized to be in the U.S. on such a visa if the artist has employment. If an artist becomes unemployed, they are not authorized to remain in the U.S. and look for work. They are required to leave. So, applying for unemployment benefits equates with admitting the artist is here illegally.

6. Requests for Evidence and Notices of Intent to Deny
USCIS has announced that any petitioner who receives a Request for Evidence (RFE) or Notice of Intent To Deny (NOID) between March 1 and May 1, 2020, will be given an additional 60 calendar days to respond after the response deadline set forth in the RFE or NOID. However, USCIS will continue its policy of employing rabid ferrets to write the RFEs.

7. Can A Visa For A Cancelled Concert Be Reissued?
Here’s a question from a dear soul who believes that if we just clap hard enough, Tinkerbell will grow her wings back:

We got an artist approved to perform for us in June. That date, of course, has now been cancelled. However, we have rescheduled the concert for the 20/21 season. Since we already applied for the visa and got it approved, and given that we only had to cancel because of the coronavirus, will USCIS re-approve the visa for the new date without having to file a new petition and go through the process all over again?

As my mother would say: “Bless his heart,” which, in the South, is the kind of thing one says when Charlene gets her head stuck in the fishbowl again…for the 3rd time. No, he will need prepare and submit an entirely new petition, and pay all of the costs and fees again. Because of all the cancellations due to the Coronavirus, the Performing Arts Visa Task Force (a long established coalition of leading arts organizations throughout the field—from the League of American Orchestras to the Association of Performing Arts Presenters) has asked the U.S. government to consider allowing approved visas to be re-authorized to cover re-scheduled dates without having to pay any new filing fees or costs. However, just to be on the safe side, I have added the same request in my letter to Santa Clause as I have greater faith in him making my wishes come true than I do USCIS.

Ok, folks. That’s all I got. Until everything changes tomorrow. As always, continue to check our website and Musical America for more frequent updates.

Stay safe and well!

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

THE OFFICIAL LEGALESE:
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, Employees, Independent Contractors, Law and Disorder: Performing Arts Division, Uncategorized, Visas | Comments Closed

What We Know So Far About Trump’s Coronavirus Travel Ban

Friday, March 13th, 2020

By Brian Taylor Goldstein

In short, not much. As you can imagine, this was announced without any details as to how, exactly, this was going to work in terms of screening, implementation, flight schedules, etc. But here what we know so far…

  • Anyone who has been in one of the 26 European countries in the Schengen zone within 14 days prior to Friday, March 13, 2020, they will not be allowed to board the plane and/or enter the U.S. for the next 30 days.
  • The 26 European countries in the Schengen zone — Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.
  • The ban does NOT apply to the U.K. or Ireland, as well as Croatia, Cyprus, Ireland, Turkey and Ukraine. (No one knows why, though it just so happens that both the U.K. and Ireland both host Trump golf resorts…hmmm.) However, while the citizens and residents of these countries are exempted from the travel ban, if they have visited any of the European countries on Trump’s list over the past 14 days, then they are subject to the FULL 30 day ban.
  • The ban does NOT apply to permanent residents (green card holders), U.S. citizens, and the spouses, parents or siblings of American citizens or permanent residents, as well as members of the U.S. military and their spouses and children. However, they will be restricted to flying to specific U.S. airports for screening.

In addition, we have just learned today that:

  • The U.S. embassy in Oslo and Lisbon has temporarily ceased all visa operations until further notice due to the outbreak of Novel Coronavirus Disease COVID-19. It’s highly likely that more embassies and consulates will follow suit.
  • Denmark just announced it was closing its borders.

We will keep you informed as soon as we know of any changes, on our social media pages (so we don’t bombard you with emails). If you would like to stay updated follow our social media links at the bottom of the page.

Lastly, Trump has asked that everyone remember that he warned us this would happen if we kept letting foreigners into the U.S. and now we should be ashamed of what we have done to his perfect economy.

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For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

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THE OFFICIAL LEGALESE:
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 Acts of God, Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Uncategorized, Visas | Comments Closed

Emancipating Artists From Your Roster

Tuesday, August 6th, 2019

By Brian Taylor Goldstein, Esq.

Hi everyone! The issue of artists leaving a roster and re-booking themselves at a venue their manager/agent originally found for them is always an ongoing problem. I’ve been asked to re-post a blog we did on this several years ago. Here it is…..

Dear Law and Disorder:

What would be your response to an artist who re-books themselves in venues that an agent previously booked for them? Is that legally allowed? We booked this particular group to a major venue 2 years back and now they have re-booked themselves at this same venue by contacting the presenter directly. I can’t really justify holding the presenter responsible or expect them to remember who they booked an artist through 2 years ago. I have been told by other managers and agents about respecting a “presenter of record”, but what about an artist having to honor the “agent of record”?

If you have (or had) a contract with this group that gives you the exclusive right to re-book them at certain venues for a specific period of time, then my response would be that the group is in breach of your contract. If you have (or had) a contract with this group that entitles you to a commission from any re-bookings at venues where you originally booked them, then my response would be that they owe you a commission. On the other hand, if there is no contractual obligation for the group either to re-book through you or to pay you a commission, then my response to the group would be “well done!”

Other than the fiduciary obligations and duties imposed on agents and managers who represent artists, and the obligation for an artist to pay for services knowingly rendered and accepted, there are no other legal obligations inherent in the relationship. An enforceable obligation for an artist to re-book only through the original agent or to pay a commission for re-bookings must either arise contractually or it does not exist at all. In other words, concepts such as either “presenter of record” or “agent of record” have no legal consequence or validity. While some might argue these are, nonetheless, inherently ethical or professional obligations, the whole idea that someone inherently “owns” either a presenter or an artist is more of a quaint feudal concept than a practical one for today’s cultural marketplace.

I appreciate that it can be incredibly time consuming and laborious to sell an artist to a presenter or introduce an artist to a new venue. However, presumably you received a commission for doing so. That was your fee. Charge more next time or move on. If you want to require an artist to book only through you in the future or require a commission if they re-book at a venue where you first booked them, then you need to have a contract with the artist that spells that out. However, be forewarned that no contracts (not even the ones I craft!) are self-enforcing. If an artist elects to breach your contract anyway, you will still need to weigh the pros and cons of enforcement. In many instances, suing an artist only results in an un-collectable judgment and a waste of time that could have been better spent booking other artists.

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For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com
All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. Questions will be answered ONLY in future blogs. 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.

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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, Contracts, Law and Disorder: Performing Arts Division | Comments Closed

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