Posts Tagged ‘ftm’

Can My Artist Perform In The US As A Visitor?

Wednesday, March 28th, 2012

By Brian Taylor Goldstein

Dear Brian,

I wanted to ask your advice about the visa needs of one of my artists. The artist is going to the USA twice this year to work. The first time will be to conduct a youth orchestra in rehearsals and a concert. The contract for this engagement is between the orchestra and my agency (based in London) and my agency will be receiving the fee. Therefore, I think I’m right in saying that the Artist will definitely need an O1 visa. (Their lawyer says that the Artist does not need a visa, but I think they are wrong.) The second engagement is slightly different, in that the artist is going to a school, but simply to do a series of talks and group discussions, not to conduct any public performance of any kind. It is almost certain that he is not receiving a fee for this, but his flights will be reimbursed by them. Having said this, if the school books his flights for him, then there may be no exchange of money at all. Will he need a full-blown visa for this engagement, as well? If not, what does he need? Many thanks in advance for your help.

Thanks for giving me this chance to address a common misunderstanding: many people believe—incorrectly—that if an artist is not paid in the US or if he or she is paid through an agent or a corporation, then no visa is required. Nothing can be further from the truth. A proper work visa (usually either an O or P visa) is required anytime a foreign artist “performs” in the United States—regardless of how they are paid or how much they are paid or where they are paid or who receives payment or even if they perform for free before an appreciative audience of starving orphans and poor widows! What triggers the need for a work visa is neither payment nor an exchange of money, but, rather, “performance.” Except for a few narrowly defined exceptions—including auditions and competitions—a foreign artist can never legally perform in the United States on a visitor visa (or, if applicable, by entering under the visa waiver program). Any time a foreign artist performs in the United States, a work visa is required.

So, with regard to your Artist’s engagement with the youth orchestra, you are absolutely correct! Your artist will definitely need an O-1 visa. Please refer what I suspect is the orchestra’s well-meaning, but ill-informed, board member to www.artistsfromabroad.org. And do not succumb to the pressure of being assured that their organization has never had to obtain visas for other foreign artists, has never been caught, everyone else does this, etc. etc. Make no mistake. Its not the orchestra taking the risk here—its your artist! If your artist is caught, the worst that happens to the orchestra is a quick search for a replacement, or, at worst, a cancelled concert. For your artist, he could be subject to future travel restrictions and bans that could ruin his future opportunities in the United States.

This is not to say that payment is never relevant, merely that it is not the deciding factor. The first step in any analysis of this nature is not payment, but performance. If the artist is not performing, then the second question is whether or not any fees are being paid. Which brings me to the question of your artist’s engagement at the school. You write that he is being engaged “… simply to do a series of talks and group discussions, not to conduct any public performance of any kind.” Excellent. That means he is not “performing”, thus, unless he is receiving a fee, a work visa will not be required. See how this works? Reimbursement for actual costs or even having actual costs covered is not the same thing as receiving a fee. If he were receiving an honorarium or a “flat fee” which he could apply towards his costs, as opposed to actual reimbursement, that would be a different matter indeed, but that does not appear to be the case here. As a result, your artist will not need an O-1 for the school engagement, but could enter either on a visitor visa or, if applicable, under the visa-waiver program. Nevertheless, if the two engagements at issue are reasonably close together, I would strongly advise you to obtain a single O-1 visa with sufficient classification to cover both engagements. Not only would this alleviate any guesswork, but it would remove the risk of adverse questions from a poorly-trained border troll (ie: US immigration officer at the port of entry) and you would only need to file a single petition to cover both engagements.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM 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.

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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!

 

The Truth About Industry Standards

Wednesday, March 21st, 2012

By Brian Taylor Goldstein

Dear FTM Arts Law:

I was recently reviewing a contract I received from an agent. When I asked for some changes, she told me that her contract was “industry standard” and that nothing could be changed because that’s the way everyone does it. In the future, I don’t want to waste anyone’s time or appear like I don’t know what I’m doing. Are there industry standards for certain types of contracts? Where can I learn what is and is not legally required?

Do not mistake “industry standard” for “legally required.” Something which is “legally required” is mandated by statutes or regulations—such as visas, taxes, licenses, or permits. The term “industry standard”, on the other hand, usually means: “This is how I’m used to doing it and I’d rather not change.” Too often, its employed as a form of peer pressure to make you feel that you have no right to make counterproposals, counter offers, or suggest a new or different way to structure the deal or transaction. Nothing could be further from the truth! The only industry standards in this industry are that there are NO standards! This is not to suggest that there are not ways to structure some deals and transactions that are more common than others, but even a common practice or custom does not mean that it is unchangeable. More significantly, if you polled a cross section of performing arts professionals about any given topic, you will find a significant divergence of opinion as to what is and what is not “standard”. In other words, just because someone has done something a certain way for 20 years does not mean that’s the way everyone else must do it, much less you. It may be “standard” for that individual or organization, but it doesn’t make it “standard” for anyone else.

In your question, you don’t mention the specific terms that were at issue. Depending on the circumstances, what you were asking for may have been completely reasonable or completely ridiculous. But that really doesn’t matter. Perhaps more than in any other industry, the arts is based on relationships and success depends on the health and strength of those relationships. When entering into any arts-based relationship, you should always feel free to ask questions, propose new ways of doing things, and think creatively. This does not mean you will get what you want. That will depend on negotiations and the negotiating positions of the parties. If you need to licensing rights from another party or want to work with them more than they want to work with you, its to be expected that they may counter any or all of your proposals with “take it or leave it.” However, that’s not because of any predetermined “industry standard”, its just that they may be in a better position than you are to dictate the terms they want. That’s not necessarily unfair, its just reality. In response to an attorney who once presented me with a contract which he insisted was “industry standard”, I told him that, according to his “standard”, the artist gets screwed, so we need to pick a better standard. It never hurts to ask!

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM 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!