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A Secret About Passports

Thursday, November 14th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I have a question about a visa I am working on.  This is one of those 0-1/0-2 visa things.  The person getting the 0-1 is fine and dandy, but the person who is getting the 0-2 just got French citizenship and is waiting for her passport – hopefully here soon, but I have to get this visa petition in really soon. Can I submit a petition without a copy of her new passport, which she is waiting on? Or does that absolutely have to be in the packet? I think she has the number of the passport that’s coming, but just not the physical booklet so that she can make a copy for me.

You should submit the petition with a copy of the OLD passport. A beneficiary does not need to show up at the consulate with the same passport that was used for the petition. There are many occasions when an artist will get a new passport between the time a petition is submitted and the time they actually go in for their consulate interview. So long as they show up at the consulate with a valid passport (and the name and birth date are the same) that’s all they care about.

I’ll let you in on a little secret: USCIS does not require passport copies to be submitted with a visa petition. So you may be asking yourself: “Then why should I ever bother including a copy of the passport in the first place?” I’ll tell you—to cover your butt! More specifically, as insurance against your mistakes or, more likely, mistakes made by USCIS.

As you are doubtlessly aware, each I-129 visa petition has a section where you enter the personal information of the artist—or, in the case of a group where there are multiple artists, you attach a beneficiary list where you provide the personal information for each member of the group. A clerk in the USCIS office will use this information to prepare the I-797 receipt notice as well as the all-important I-797 approval notice.

There are many opportunities to make typos on I-129 petitions. Most commonly, USCIS requires all birthdates to be entered into the MM/DD/YY format when most other countries around the world write dates in the DD/MM/YY format. Typos can also occur in the case of multiple middle names or unusual or uncommon spellings. If the visa petition includes a copy of the artist’s passport, USCIS will cross-reference the names and personal information listed on the I-129 with the data on the passport. If there are any discrepancies, they will use the information on the passport.

When an artist goes to a U.S. Consulate to apply for his or her visa, the name and birthdate on the artist’s passport must match EXACTLY the name and birthdate written on the I-797 approval notice. While some consulates will make an effort to sort out a discrepancy, others will simply reject the application and require the artist to obtain an amended I-797—which can often mean re-filing the entire visa petition, which includes incurring new filing fees. Providing USCIS with a copy of the artist’s passport can be a critical safety check. Also, in the event USCIS makes a mistake in listing an artist’s name or birthdate on the I-797 approval notice, but was given a copy of the passport with the correct information, USCIS will issue an amended I-797 without requiring you to re-file a new petition.

It doesn’t matter whether or not the passport provided with the visa petition is current or even valid. All that matters is that, at the time the artist appears at the U.S. Consulate, he or she presents a valid passport with the same name and birthdate as on the passport included with the visa petition.

Congratulations! You have just been given a piece of arcane information known only to the highest initiates!

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Spam Spam Spam Spam Spam….

Wednesday, November 6th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

If I am doing a fee split, am I entitled to the emails of the people who purchase tickets? Our group booked a show at a venue where we are supposed to be getting a portion of the ticket sales. We have asked for the names and email addresses of everyone who purchases a ticket, but the presenter says that this is against the law because it’s the presenter’s confidential, proprietary information. But if people are buying tickets to our shows, why aren’t we entitled to their names and contact info?  

Always start with the contract. What does it say? Do you even have one? If the engagement contract states that you are entitled to receive the names and contact information of everyone who purchases a ticket to your performance, then the presenter is contractually required to give it to you. Case closed.

However, assuming that your contract is silent on the subject, then the presenter may be giving you the correct answer, but for the wrong reason. A lot of people toss around the words “confidential” and “proprietary” without really having any idea what they mean. If your interest in having the names and emails is so that you can send out announcements of your future shows (ie: spam), the presenter has a legitimate concern that this may violate the CAN-SPAM Act–which has nothing to do with confidential or proprietary information.

The CAN-SPAM Act is a federal law that governs the sending of unsolicited commercial emails. This law states that anyone who receives an unsolicited commercial email has the right to request that he or she be removed from future mailings and places a number specific requirements on those who send such emails, including requiring the sender to provide an opt-out mechanism, a physical address, and to remove anyone who requests to be removed from the mailing list. It covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” Under the CAN-SPAM Act, anytime you ask someone to “buy” something or spend money, its considered “commercial.” Sending emails to promote an artist or an ensemble is just as “commercial” as sending emails soliciting donations or promoting a concert, a fundraising event, or any program where tickets are sold. (The law makes no exceptions for tax-exempt 501(c)(3) organizations.) As a result, any individual or organization that sends a commercial email to someone who has specifically asked not to be contacted, or sends such emails and fails to provide an opt-out mechanism and/or to remove someone from its email list upon request, can be prosecuted for violating CAN-SPAM.

Individuals and organizations can also violate the CAN-SPAM Act by providing email addresses and contact information to third parties. Very often presenters and venues collect email information for purposes of contacting patrons to verify ticket purchases or to inform them of cancellations, but these same patrons may “opt-out” of receiving solicitations or commercial emails. If the presenter were to disclose such email addresses to a third party knowing that the third party intends to send unsolicited commercial emails, then the presenter would itself be liable for violating the CAN-SPAM Act.

In this case, if the presenter were to give you the data you want, and you violate the CAN-SPAM act, then the presenter could be liable. However, given their inarticulate basis for refusing your request, I don’t believe for a minute that your presenter is actually even aware of the CAN-SPAM act. More likely than not, your presenter simply doesn’t want you to have the ticket list because the presenter wants the names and emails all to itself to promote its own future seasons, subscriptions, donations, etc. Regardless, the bottom line remains the same: without a contract entitling you to this information, you’re at the mercy of the presenter. When performing at a venue, there is neither an inherent nor implicit right to patron names and addresses just because you are the performer and people purchases tickets to your show.

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Oh, Canada!

Thursday, October 31st, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I represent a performance group from Canada who will be touring the United States. Three of the members are Canadians, but two are not. I have applied for a P-1 visa. Because the group is from Canada, can they enter the US just with the approval notice or do they first have to go to the consulate and get actual visas in their passports?  

There more to Canada than just poutine, health care, and HM The Queen on the currency. Canadians are also the only folks who are not required to have physical visas to enter the US.

Canadian artists must still file visa petitions with USCIS and be approved for either O or P visa classification. (Like artists from the rest of the world, Canadian artists cannot perform in the US as visitors—even for free!). However, once the visa petition has been approved, a Canadian artist does not have to go to a US Consulate, pay a visa application fee, and receive a physical visa in his or her passport. Instead, a Canadian artist can enter the US with only their passport and a copy of their USCIS visa approval notice. (Technically, a Customs and Border Patrol (CBP) officer can verify the approval through the USCIS database and does not need a copy of the approval notice. However, for obvious reasons, do NOT rely on this. Artists should always bring a copy of the actual approval notice, as well as a copy of the visa petition itself, just in case.

This unique privilege only applies to Canadian citizens. It does NOT apply to Canadian permanent residents (aka “Canadian landed immigrants”) or anyone who just happens to be passing through Canada en route to the US.

So, in your case, if the three Canadian members of your group are Canadian citizens, then they can proceed directly to the airport or border-crossing and enter the US with only their passport and their visa approval notice. The other 2 members of your group will need to make an appointment at a US Consulate and go through the visa application and issuance process. Apply early…US Consulates in Canada are notoriously backed up!

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

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

The Band That Stood Up To God…and Lost

Thursday, October 24th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

We recently has a situation where one of our groups showed up at a festival, but just before they were to go on stage, the police shut down the event due to an approaching electrical storm. The presenter had given the group a deposit for 50% prior to the event, but is refusing to pay the balance even though our booking agreements have a specific clause that says that, in the event of cancellation, except for Acts of God, the artist gets the full fee. The presenter signed the agreement. The band showed up and were ready, willing and able to perform. Aren’t they entitled to the full fee? They need this money to cover their costs for flying, driving, and internal costs. Isn’t the presenter supposed to get event insurance to cover these sorts of things?

When you say the band was “ready, willing and able to perform”, are you saying that, had the police not shut down the event, they would have performed anyway? In a lightning storm? Seriously? While I am solidly rooted in the “show must go on” tradition, you’re either representing the industry’s most desperate band or the most reckless—or both. Had lightning struck the stage, injuring either a band member or a member of the audience, the band would have been facing some significant lawsuits and liability for gross negligence.

An “Act of God” is an unexpected event or occurrence that is beyond the control of a party. If a party breaches a contract because of an “Act of God”, then the party is not liable. Concerts cancelled due to severe weather are among the most common “Acts of God.” The fact that, in this case, the police shut down the event as opposed to the actual hand of the almighty descending from the clouds and cancelling the event with a host of celestial trumpets does not change the fact that the presenter did not cause the lightning storm and had no choice but to cancel the event—literally, given that the police ordered the event to be closed. Thus, the presenter is not liable for the cancellation and the band is not entitled to the full fee. In fact, assuming the presenter let the band keep its 50% deposit, the band actually got more than it was entitled to.

As for whether or not the presenter was supposed to get event insurance to cover weather related cancellations, you seem to be under the impression that, had the presenter obtained such insurance, then the band would have been paid its full fee. Not necessarily. Unless your contract obligated the presenter to purchase an insurance policy and name the band as an additional insured, then the presenter’s event cancellation insurance policy would only have covered the presenter’s liabilities and expenses. As the presenter isn’t liable to pay the band its full fee, the insurance policy wouldn’t have paid it either. On the contrary, if the band regularly plays outdoor events and concerts, and wants to “ensure” that it losses are covered in the event a concert is cancelled to due weather, then the band should consider getting its own event cancellation insurance policy. Or you could always just pray.

_________________________________________________________________

For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

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

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

__________________________________________________________________

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 Acts of God, Agents, Artist Management, Arts Management, Contracts, Insurance, Law and Disorder: Performing Arts Division, Liability, Presenters, Touring, Venues | Comments Closed

Agents and Artists: Who Controls the Money?

Thursday, October 17th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

I am considering working with an agent, but almost every agent I speak with wants to collect my engagement fees on my behalf. Why can’t I collect my fees and just pay the agent? If an agent collects my fees, should I ask for a separate bank account? What about statements? Is it reasonable to ask for monthly accountings? When do I get paid? What’s standard?

As the artist’s representative, its quite common for an agent or manager to accept fees on behalf of an artist. Among other reasons, it allows you to focus on your performances, especially when touring, while allowing your agent to follow up on contracts, payments, and other logistical issues. However, just because a practice is “common”, that does not make it mandatory.

Should you agree to permit a representative to collect fees on you behalf, agents and managers are subject to state “agency laws” which impose certain obligations and duties. (Agency laws should not be confused with “licensing” requirements. Agency laws govern any relationship where one party acts on behalf of another and apply regardless of licensing requirements.) Pursuant to most state agency laws, when an agent or manager accepts fees on your behalf, its your money, not theirs. They must hold the money “in trust” until it can be turned over to you. As such, agents have a fiduciary obligation to treat that money separately from their own. If the parties mutually agree, the agent can deduct his or her commissions, as well as any other expenses, but the balance of the money belongs to you and the funds must never be co-mingled with the agent’s own money.

While an agent is not necessarily required to keep an artist’s money in a separate bank account, it’s a highly advisable business practice for an agent to maintain a separate trust account to hold the fees collected on behalf of all of the artists on their roster. This protects both the agent as well as the artist. For one thing, an agent is legally required to account for all money collected and held on behalf of an artist. Placing the money into a separate trust account not only makes such accountings easier, but also helps to ensure than an artist’s money doesn’t accidentally get co-mingled with the agent’s own money. For instance, when an agent collects an engagement fee, the fee should go into the agent’s trust account. If the agent is owed a commission, the agent can transfer the commission from the trust account into the agent’s personal account. This is especially important in the case of deposits. In the event an engagement is cancelled, a deposit may need to be returned. Having the money held in a separate trust account ensures that the funds are not prematurely dispensed, for which both the artist and agent could be liable.

As for whether you should demand your own, personal trust account, that’s probably overkill. Even attorneys are not required to do that. Provided the agent keeps accurate books and records, its perfectly acceptable for an agent to have a single trust account where all of the fees collected on behalf of agent’s artists are kept separate from the agent’s own business accounts. It’s then a simple matter of bookkeeping to determine which money belongs to which artist.

As for whether you should ask for monthly accountings, you should definitely ask for accountings as agents are legally required to provide them. Whether or not “monthly” is reasonable depends on the specific circumstances. If you are performing monthly, then monthly may be appropriate. Otherwise, quarterly may be more reasonable. Many agents will provide an accounting each time you are paid, as opposed to at fixed intervals.

Always remember: nothing is “standard.” Agents and managers work for you, not the other way around. You have a right to ask for whatever terms and conditions you want. Of course, that doesn’t mean they have to agree, but being able to post questions and have your concerns respected and reasonably addressed, even if you don’t get the answers you want, is key to determining whether or not to pursue an agent relationship.

___________________________________________________________________

For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

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

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

__________________________________________________________________

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, Liability | Comments Closed

The Power of Contractual Silence

Thursday, October 10th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

 

We booked an artist to perform at our theater, but ticket sales have been much lower than we expected. The show is a month away. We are a small venue with a small budget, and can’t afford to present an artist if we can’t sell enough tickets to cover the costs. We signed an engagement contract, but it doesn’t cover cancellations, unless it’s for illness or weather related. As the contract is silent on this, I offered the agent what I thought was a standard buy-out fee (25% of the total fee), but he is insisting on the full amount. That doesn’t seem fair.

 

What doesn’t seem fair? That you signed a contract and the agent is expecting you to live up to your end of the bargain? The whole point of a written contract is to memorialize all of the terms, understandings, conditions, and requirements of a business transaction—even if the transaction is in show business. If a party fails to abide by a term, understanding, condition, or requirement of a written contract, then that party has “breached” the contract.

Just like music is a combination of both sounds and silence, terms and requirements that are not part of a written contract are just as important, if not more important, than the ones that are. This is because only terms, understandings, conditions, and requirements that are actually written down are considered to be part of a legally binding contract. So, for example, if an artist wanted to be paid his fee on the night of the performance, but the engagement contract only states the amount of the fee and not when it is to be paid, then the presenter is not obligated to pay the fee on a specific date. Similarly, if an engagement contract doesn’t have a cancellation clause, then there is no right to cancel and neither party can cancel without the consent of the other. This means that, if the artist gets a better offer, she doesn’t have the right to cancel the engagement. However, it also means that you don’t have the right to cancel, either, just because you’re not selling enough tickets.

I frequently hear both agents and presents talk about “industry standards and customs” as a way to resolve contractual disputes or re-negotiate contracts they didn’t bother to read in the first place. Except in rare circumstances, industry standards and customs are completely and utterly irrelevant. Moreover, if you gathered four arts professionals in a room and asked them to describe industry standards and customs on any given topic, you would get four different answers! If a contract fails to address an issue or condition that is important to you, you cannot presume that you get to resolve the silence in your favor and do what you want. Rather, if the contract is silent on a specific issue, then both parties must agree on a resolution of that issue.

In your case, if your venue’s policy is to cancel an engagement if you can’t sell enough tickets, then you need to make sure that this policy is written into every engagement contract you sign. Otherwise, you have no right to do so. If you cancel, and the artist or the artist’s agent doesn’t agree to accept a lesser amount, you are liable to pay the full amount of the engagement fee—so, assuming there are no other cost savings to you in cancelling and still paying the full fee, you might as well let the show go on.

_________________________________________________________________

For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

“Thanks For All The Trouble, But I Made Other Plans!”

Wednesday, September 18th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

I work for a venue that engaged an artist for a concert. I agreed to pay for hotel and travel. After the engagement, the artist told me that she decided to stay with friends and drive. I can’t get my money back. Can I deduct my losses from her fee?

No, you cannot under any circumstances deduct these costs from her fee. That would be like agreeing to provide food for an artist backstage and then asking the artist to reimburse you for the left overs.

I realize that times are tough (though, in the performing arts, times have always been tough, so, perhaps I should say that I realize times are tougher), and every penny counts. Certainly, had the artist informed you in a timely manner that she didn’t need the hotel or travel arrangements, you could have cancelled or even saved yourself the time and expense of making the arrangements in the first place. However, presumably, the engagement contract did not require the artist to inform you if she did not require hotel or travel. As a result, these were not “losses”, but, rather, “costs” which you contractually agreed to incur.

I would argue that, from a professional standpoint, the artist or her management should have informed you of the artist’s change of plans regardless of whether or not they were contractually or legally required to do so. However, if you agreed to pay for hotel and travel, then you were contractually obligated to incur these costs. If the artist decided to make her own arrangements and not avail herself of the hotel and travel you provided, that was the artist’s decision to make. Your only obligation was to comply with the terms of the contract, which you did.

In the future, you may want to consider adding a provision to your engagement agreements that, if you agree to incur hotel and travel costs, an artist must inform you in a timely manner if they decide to make their own arrangements and reimburse you if they fail to do so. In addition, should you ever consider re-booking this particular artist in the future, I would expect you to ask for the engagement fee to reflect the unnecessary expenses you incurred…or, at the very least, tell the artist to stay with her friends and drive.

_________________________________________________________________

For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Its Not The Length Of A Contract That Matters, Its How You Use It

Wednesday, August 14th, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: I want to start getting the artists I represent to sign a written representation agreement. However, all of the models I have found are too long and complex. I definitely do NOT want a 14 page contract, more like 4 or 5 at most.  I won’t be able to get folks to sign it otherwise!  And, can the language be more simple? I like simplicity. When drafting contracts, length and simplicity should be the least important factors. Such restrictions are arbitrary. That’s like saying: “I want to drive from New York to California, but I absolutely refuse to use a car that requires tires or gas.” You’re going to have a problem satisfying your travel needs and goals. The goal of any contract is not to make it simple enough so everyone signs it. If that’s your goal, you really only need two sentences: “I agree to book engagements for you. You agree to pay me.” Let’s assume both parties sign it. What if the artist doesn’t pay you or leaves you for another agent? Contracts are not self-enforcing. If one party breaches a contract, then merely having a signed contract is not going to force them to comply. You have to file a lawsuit to enforce a contract. That’s expensive…and often pointless if the artist has no assets. Worse, if your contract is too simple and doesn’t adequately address the nature of the dispute, then the other side’s attorney is going to poke all sorts of holes in your “simple agreement” and you’re going to lose anyway. The goal of a contract is having a document that adequately addresses your concerns and issues and spells out all of the key terms so that you and your artist have a chance to review and discuss them. A meaningful contract will assist both parties in routing out any presumptions or misunderstandings before problems arise. Whether it takes 4 pages to do that or 14 pages, the length of your contract will depend on the complexity of the relationship, the length of the relationship, the needs and concerns of the parties, the amount of money at issue, and a myriad of other issues. For example, if an agent takes a commission of 20% off everything they book for the artist, do you earn your commission when the engagement is booked or actually performed? Does “everything” include 20% of reimbursements for travel and hotel expenses? Are you exclusive? Do you get a commission on engagements that the artist books on their own? And when do you get paid? And how do you get paid? Are engagement fees sent to you or do you invoice the artist? What about engagements that happen after the term? How long is the term? Can you cancel? Can the artist cancel? What if the artist decides to cancel and goes to another agent? Are you still entitled to the commission on engagements you booked? And the list goes on… Think of your contract as a checklist that you will use to facilitate a discussion with each new artist you bring on to your roster to help you decide if you want to work with them and vice versa. If there are issues that are not important to you, then you can take them off your list and remove them from your contract. However, if there are expectations or requirements that are important to you, those need to be adequately explained and detailed. Similarly, while the language you use to explain your expectations and requirements can be simple, it also needs to be appropriate. While I am the first to criticize attorneys for using overcomplicated legal babble, more often than not, a lot of language that confuses artist and agents in contracts is not necessarily “legalese”, but basic business terms and practices with which they are not familiar. Let’s face it…a lot of artists as well as agents, managers, and presenters, do not necessarily have the same business background and training as do entrepreneurs and business people in other, less fulfilling industries. That merely means there are new terms to learn, as opposed to avoid, as your business grows and matures. My point is that your focus needs to be on finding the right language to adequately explain your terms, concerns, expectations, and requirements. I’ve seen too many parties get burned because they dumbed down a contract just to make it shorter. That’s a waste of both time and money. More important, in my opinion, arbitrarily “dumbing” down a contract merely on the assumption that artists won’t understand anything more complex does a disservice to the all the inherently bright, creative, and intelligent denizens of our arts industry who merely need an opportunity to be taught. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ 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

Visa Envy: Why Is Yours Longer Than Mine?

Wednesday, July 31st, 2013

By Brian Taylor Goldstein, Esq. I am writing you about a question we have in regards to the length of stay that USCIS grants for O-1B visas.  In the past few years, it has been our experience that USCIS will not grant 3 year visas for a time period that has gaps from anywhere to 3 to 6 months between engagements.  Therefore, for our artists, we have been applying for month long visas, or three month long visas, etc, which has started to become prohibitively expensive for them, and rather inconvenient and time consuming for us. We were told by an artist that is moving off of our roster that his new manager will be applying for a 3 year visa for him, regardless of the fact that this particular artist has gaps of 6 or more months between engagements, or no engagements at all after a certain point.  So our question is, has the USCIS policy changed, or worse, do you think it’s possible that the artist’s new manager has some kind of connection or agreement with USCIS that we do not? Artist visas are not defined by length, but by type: O-1 visas for individual artists, P-1 visas for groups, and P-3 visas for culturally unique individuals or groups. The length of the visa validity period depends on how many engagements and other activities (rehearsals, production meetings, receptions, etc) the artist or group has in the United States—up to 1 year of engagements for P visas and up to 3 years of engagements for O visas. Officially, USCIS will approve a single visa validity period where all the engagements constitute “a continuous event”, such as a tour. However, in its inimitable predilection for unhelpfulness, USCIS has no specific definition of “a continuous event” and no policy on the minimum or maximum length of “gaps” between engagements and activities. Rather, USCIS examiners are given complete, unfettered discretion when it comes to determining whether a gap between engagements is too long and will require filing separate petitions. Let’s say, for example, that an artist has an engagement in October 2013 and their next US engagement is not until April 2013 and the manager files a visa petition requesting a validity period of October 2013 through April 2013. USCIS could either approve the visa for the entire length of the validity period requested, notwithstanding the six month gap between engagements, or it could only approve enough time to cover the October 2013 engagement and require the manager to file a new, separate petition for the April 2013 date. When dealing with this issue, anecdotal evidence and actual experience is your best guide. While I have known USCIS to approve visa petitions even with large gaps between engagements, more often than not it will “cut off” a visa validity period where there are more than 3 – 4 months between engagements or activities. My general advice is to keep gaps as short as possible. As for shortening gaps, or even extending the length of an entire visa validity period, consider this: you are not limited to including in your visa petition only engagements dates that have signed engagement contracts. You do not have to provide a signed contract to support each engagement. Instead, USCIS will accept any written confirmation of an engagement, including unsigned term sheets, deal memos, emails, confirming letters. Even if a date is still under negotiation, so long as you are holding that date on the artist’s calendar, it can be including on the visa petition along with an accompanying written confirmation that the date is being held. In addition, you can also provide a list of the artist’s non-US engagements and explain that when the artist is not performing in the US it is because the artist will be performing elsewhere in the world. I can assure you that USCIS has no special deals with your ex-artist’s new manager. According to your question, your ex-artist is merely claiming that his new manager “will be applying” for a 3 year visa for him. “Will be applying” is not the same that as “has obtained.” If the artist has large gaps in his itinerary or lacks 3 years of engagements, he will be receiving a Request for Evidence (RFE) or a visa denial, not an O-1 with a validity 3 years. Don’t believe everything you are told, especially by disgruntled ex-artists who want you to believe they have moved to greener pastures. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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

A Room With A View…and a 1099

Wednesday, July 24th, 2013

By Robyn Guilliams Dear Law and Disorder, I have been in artist management for a long time, thought I had seen it all, but something just came up for one of my artists that has me completely stumped.  My client was sent a 1099 for a hotel stay that the presenter provided for an engagement.   Most presenters that I work with pay for the hotels, but never once has the value of that hotel been included on the 1099 that the artist was sent.  This particular place is a big resort, they too are the presenter.  They often trade rooms for fees (it’s a very exclusive resort!), or they give small fees plus the accommodations (which includes meals), usually for two nights as a perk to the artist. It gets tricky for the artist, because they don’t pay for the hotel, so they have no expense to write off for that income. So that may mean they end up paying tax on that amount, thereby losing money doing this performance.  That’s where this goes wrong for the artist, in my opinion.  Artists obviously do this gig because of the resort.  But, this has left a bad taste.  What’s up with issuing the 1099?  They say it is an IRS law that says hotel costs are income for the artist.  By the way, they don’t tell you this up front…Searching for the Truth Dear Searching for the Truth: The answer to your question depends on the specific facts of the situation.  (A lawyer’s favorite answer to every question is – “It depends”!) Generally, if a presenter provides accommodations to an artist as part of the artist’s compensation, the value of the accommodations is NOT considered taxable income to the artist, if the accommodations are reasonable and necessary.  For instance, if an artist is travelling from California to New York to play one show, the presenter providing the artist with two nights of hotel accommodations is reasonable and necessary.  The value of the hotel accommodations in this instance would not be considered taxable income to the artist, and need not be included on the 1099. On the other hand, if a pianist travels away from home to play a concert and the presenter provides hotel and airfare for the pianist, her husband, her sister, her sister’s next-door neighbor, and the next-door neighbor’s pet monkey, this is not reasonable and necessary.  The value of the airfares and accommodations for everyone except the pianist would be considered taxable income and SHOULD be reported to the artist on a 1099. Unfortunately for your artist, there are a few comments in your letter that indicate that the accommodations at the resort exceeded the “reasonable and necessary” standard.  You state that the artists at this resort often accept accommodations in lieu of fees, or accept smaller fees plus accommodations.  Why would an artist accept no fee, or a substantially smaller fee, if the artist wasn’t receiving something of value (in addition to the hotel room) in return?  Plus, you mention that artists “do this gig because of the resort”… and the presenter provides “two nights as a perk to the artist”.  Again, the artist is receiving something of value besides the usual hotel accommodations.  If an artist is receiving a significant personal benefit from the accommodations besides a place to lay his head after the show (such as the opportunity to enjoy resort amenities or an extra night of accommodations), then the value of the accommodations constitutes taxable income and must be reported. You say that it’s tricky for the artist, because he has no expense to write off his income.  But wouldn’t this be the case if he was receiving his usual fee plus a regular, non-resort, hotel room?  I’d suggest that in the future, unless your artist understands the taxable “value” of receiving resort accommodations, including the included room service and use of the infinity pool, have him stay at the Motel 6 down the street. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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

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