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Beware of Simple Answers!

Thursday, December 19th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I work with an artist whose current US visa expires in January 2014, but he has one engagement in the US on March 8, 2014. The promoters are saying that he won’t need to renew his visa and can just use ESTA, however, we were under the impression that he would need a valid US visa. Is this correct?

You are absolutely correct. He will require an O-1 visa.

ESTA stands for “Electronic System for Travel Authorization.” ESTA is an on-line registration system for citizens of countries who participate in the United States Visa Waiver Program (“VWP”). Citizens of VWP countries are not required to visit a US consulate and apply for physical visitor visa (B-1/B-2) to enter the US as visitors. Instead, they are only required to have a valid passport from a VWP country. However, they are required to register on-line through ESTA and be pre-authorized before they can enter the US.

The key, of course, is that the VWP program only allows citizens of VWP countries to enter the US as “visitors.” As such, they can only engage in visitor permitted activities: shopping, sightseeing, business meetings, etc. Under US Immigration Law (frustrating and circuitous though it may be), professional artists who enter the US as visitors are not permitted to engage in ANY public performances–regardless of whether or not an artist is paid, regardless of whether or not tickets are sold, regardless of whether or not the performances is for a benefit or a gala, regardless of whether or not the performance is for a university or non-profit, regardless of whether or not you can afford the visa process, regardless of whether or not the artist lives 100s of miles from the nearest US consulate, regardless of whether or not the artist has previously performed in the US as a visitor, etc, etc.

While artists frequently do sneak in as visitors and perform, this poses far more risk to the artist than to the venue or promoter. If the artist is caught, the worst that happens to the promoter or venue is that the artist can’t enter the US and the concert may have to be cancelled. However, a fraudulent VWP/ESTA entry can result in the artist having his VWP privileges revoked, or worse.

I am currently working with a prominent artist who wanted to take a last minute engagement, didn’t have time to petition for a visa, much less go to the consulate, and decided to enter the US as a visitor. Unfortunately, his concert had been prominently advertised, he was caught by the one of the few border officers who actually follow classical music, and was refused entry. For the next five years, the artist must now formally request a “waiver” anytime he wants to obtain a proper O-1 visa to perform in the US. As you may imagine, this has caused considerable stress to his management because a “waiver” request adds an additional 3 – 4 week delay in processing the artist’s visa. In addition, his VWP privileges were revoked, meaning that he must go through the time and hassle of applying for a formal B-1/B-2 visitor visa even if he legitimately only wants to enter the US as a visitor.

I doubt seriously that the promoter was intentionally giving bad advice. More than likely, the promoter was ill-informed. Which only underscores the responsibility of each of us to take the time to learn and figure out the correct answers for ourselves rather than rely on hearsay or anecdotal information. Whether you’re dealing with visas, taxes, licenses, or liability, if the answer seems too simple, it probably is.

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Hi Everyone! “Law and Disorder: Entertainment Division” will be taking a holiday break. Our next post will be on January 8, 2014. Many thanks for a wonderful year of great questions and challenges. Keep them coming! 

OFFICIAL HOLIDAY WISH CONVEYANCE

From Brian Taylor Goldstein and Robyn Guilliams (collectively, the “Wishor”) to you (“Wishee”):  

Please accept without obligation, implied or implicit, and weather permitting, our non-assignable and non-exclusive best wishes for a sold out, standing room only, royalty abundant, lavishly licensed, critically acclaimed, non-cancelable, infringement free, profusely booked, copiously commissioned, richly funded, tax-exempt, crisis deficient, and artistically inspired celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious and/or secular persuasions of your choice, including their choice not to practice any such religious or secular traditions, along with an environmentally conscious, socially responsible, spiritually enlightened, politically correct, low stress, low carb, high HDL, non-addictive, financially successful, personally fulfilling, and medically uncomplicated recognition of the onset of the generally accepted calendar year 2014, but with due respect for the calendars of choice of other cultures or sects, and without regard to the race, creed, color, age, physical ability, religious faith, choice of computer platform or operating system, mental and/or physical incapacities, visa classification period, sexual preferences, political affiliations, and/or dietary preferences of the Wishee.

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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 Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | 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.

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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

Showcasing: A Rare Visa Exception

Wednesday, August 28th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

Do non-US artists need artist visas when they come in to perform a showcase at a booking conference? They don’t get paid. Its just to get bookings. In fact, the artists lose money doing this. Can they enter on a tourist visa or do they have to spend even more money and go through the process of getting an artist visa?

Its rare that someone asks us an immigration question where they actually might like the answer…this may be one of those instances.

However, its first always worth remembering that, under current U.S. immigration law, whether or not a foreign artist is required to have an artist visa (almost always either an O or a P) is not related to payment. What triggers the need for an artist visa is performance. Whether or not an artist is paid, whether or not tickets are sold, whether or not the performance is public or private, whether or not the performance is for a non-profit educational or a cultural organization, if an artist performs, and there is someone watching the performance, he or she is required to have an appropriate artist visa.

Except for rare and limited exceptions, an artist can never perform on a visitor visa or, if applicable, under the visa waiver program. One exception is a competition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of participating in a competition where there is no payment other than expenses and a prize, monetary or otherwise. Another exception is an audition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of auditioning or meeting with producers or presenters in the hopes of being hired to perform in the future.

While there is no official codification of a showcase being regarded as an audition, the U.S. State Department in conjunction with U.S. Citizenship and Immigration Services have long taken the position that a showcase is regarded as an audition if it meets the following criteria: The showcase is not open to the public, no tickets are sold or available, attendance is open only to registered members of the booking conference, and the artists are not paid and are responsible for their own expenses. Also, the artist cannot perform any other engagements in the U.S. while on the same trip. In other words, they need to get in, perform the showcase, and get out. If these criteria are met, then an artist may enter the U.S. and perform at the showcase on a visitor visa or, if applicable, a passport issued by a “visa-waiver” country.

Be forewarned: simply calling a performance a “showcase” is not sufficient. Nice try, but that won’t work. If an artist books a venue, sells tickets or otherwise makes tickets available to the public, but allows booking conference attendees to attend free, that is NOT a showcase for purposes of the artist visa exception and the artist will be required to have an appropriate artist visa. Similarly, booking an engagement with a low fee simply because the artist or the artist’s agent/manager believes such engagement will be an opportunity to showcase or introduce the artist’s talents to the U.S. market in the hopes of getting future bookings is also NOT a showcase.

If you believe that you or an artist you represent may qualify for the showcase exception, then, if the artist is traveling on a passport from a “visa waiver” country, he or she needs to travel with a letter from the artist’s agent/manager or, even better, from the booking conference itself, confirming that all the elements of the exception are met. If the artist is traveling on a passport from a “non-visa waiver” country, then he or she will need to apply for a visitor visa at a U.S. consulate, but should bring the appropriate letter with them explaining that the showcase exception applies.

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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 Artist Management, Arts 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

New I-94 Process for Artists Touring the United States

Wednesday, May 22nd, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: I heard that US Immigration will no longer be giving foreign artists the little white card they used to get when an artist entered the US. The cards were stamped with the artist’s visa category and the date they had to leave. It was my understanding that we needed to make copies of those cards if we needed to extend an artist’s visa. Are we supposed to use something else instead? Is there a new process? Yes, you heard correctly. The little white card, called a Form I-94, was an artist’s official arrival/departure record. Up until recently, every foreign artist as well as all other foreign travelers entering the U.S. (except, occasionally, Canadians, depending on when and where they entered) was given a Form I-94 to fill out (most often while waiting in an interminably long line at an airport international arrivals hall), the bottom half of which was stamped with their status and departure date and returned to them by a US Customs and Border Patrol Officer (aka the border troll.) This form was also issued to those who adjusted their status while in the U.S. (ie: changed from F to O), or who extended their visas. The I-94 was used to confirm the artist’s individual’s status or visa category (O, P, F, B1/B2, etc.) and the departure date by which they must leave the U.S. When the artist left, they surrendered the I-94 either to the commercial airline carrier or to CBP directly. The I-94 information and the date of departure was then entered into a database to verify that the artist did not overstay the required departure date. As of April 30, 2013, this process became electronically automated. CBP will no longer require artists to fill out a paper Form I-94 upon arrival to the U.S. by air or sea and will no longer issue paper I-94 forms in return. Instead, CBP will gather the arrival/departure information automatically from the foreign artist’s electronic travel records and, upon entry of the artist into the U.S., will enter their status and departure date electronically. (Because advance information is only transmitted for air and sea travelers, CBP will continue to issue a paper form I-94 “at land border ports of entry”—which is government-speak for Canada and Mexico.) Similarly, when the artist leaves the US, the date of their departure will be electronically gathered, as well. Under the new process, the CBP officer will stamp the passport of each arriving artist. The admission stamp will show the date of admission, class of admission, and the departure date by which the traveler must leave. Artists wanting a hard copy or other evidence of their valid admission and immigration status will need to go to a special website (www.cbp.gov/I94) where, using their passport numbers and names, they can access and print as many physical copies of their I-94 as they want. Officially, there is no legal reason for an artist to have a hard copy of the I-94. Officially, the electronic record and the passport stamp will serve as evidence of their valid admission and immigration status. Nevertheless, we are strongly recommending that all artists, or their managers/agents or employers, go to the website and print out a hard copy of the I-94. Why? Simple—we don’t trust CBP not to make mistakes! Plus, while CBP may no longer require a physical I-94, other government agencies still do. Despite what is stamped in an artist’s passport, an artist’s official arrival/departure record will remain the electronic I-94. If a CBP officer makes an error and the required departure date written on the passport does not correspond with the official departure date electronically entered on the I-94, the I-94 will govern. In other words, regardless of what is written on the passport, the artist MUST leave the US by the date stamped on the I-94 despite what was approved by USCIS or written on their visa. Printing out the I-94 will be the only way to verify that the I-94 reflects the correct visa category and the correct period of admission. Furthermore, having a hard copy of the I-94 will also continue to be required by employers and schools who are required by other government agencies to verify immigration status. A hard copy of the I-94 will also facilitate the process of obtaining drivers licenses and social security numbers. An equally important reason for a paper copy of the I-94 is that it would function as a backup document in the event that CBP officers cannot access the electronic record of admission due to a systems failure at the time that an artist seeks re-admission to the US after a short visit to either Canada or Mexico. A hard copy of the I-94 will also continue to be required by USCIS when an artist is currently in the US and files a visa petition to extend their visa. In such cases, the petition must include a copy of the I-94 to show that the artist was validly admitted and is currently “in-status.” CBP has issued a fact sheet that includes frequently asked questions regarding the impact of automation, visa revalidation, passenger processing times, and more. You can access that at: http://www.cbp.gov CBP contends that this automation will streamline the entry process for travelers, facilitate security, and reduce federal costs by saving the agency an estimated $15.5 million a year. That remains to be seen. As CBP implements the I-94 automation process, processing errors and challenges relating to the automated admissions process and accessibility of electronic records are already arising. _________________________________________________________________ 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 Artist Management, Arts Management, Employees, Law and Disorder: Performing Arts Division, Taxes, Touring, Visas | Comments Closed

A Visa Substitution Requires an Artist to Substitute

Wednesday, April 17th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I have a substitution/visa question for you….We were intending to use someone from the US as the eighth singer for one of our groups coming to perform with a symphony in July 2013. It’s now looking like the group might have to replace the intended US singer with a singer from the UK. The rest of the group have visas that have already been approved and issues. Obviously, the singer from the US was not included in the original visa application, so I’m wondering how it would work if we’re now substituting a singer from the UK for the US singer. Would we have to do an entirely new visa application for the new (UK) singer, or would we still be able to add this new singer to the existing (approved) visa petition as a replacement for the US singer? Any light you could shed on this, either by answering these questions or by referring me to another resource where I might be able to get an answer to these questions would be extremely helpful and very much appreciated. Thanks so much!

I can both shed light and refer you to another resource.

First, the light: If you filed a petition listing 7 beneficiaries and 7 beneficiaries are listed on the visa approval notice, and all 7 will be coming to the US, then there is no one you can substitute. The substitution process is available only if one of the original 7 listed singers were to become ill or otherwise unable to travel to the US. Then, you could ask the consulate to “substitute” one of the 7 singers with a new singer. Its also much hard to substitute a visa that has already been issued as the original artists would need to return his/her passport and visa to the consulate in order for it to be voided before the new visa could be issued.

If you need to add an 8th singer and that 8th singer is a non-US performer, then you will have to file an amended petition where you ask for 8 beneficiaries instead of 7. You cannot file a petition just for the extra singer as you cannot list only 1 person on a P (group) visa petition. You would have to re-file the whole original petition as an “Amended Petition” where you list 8 singers rather than 7 and get a new approval notice for everyone. However, only the new, 8th singer, would need to go the consulate. The other 7 can use the visas already issued. You would also need to provide all of the same supporting materials you provided with the original petition (reviews, contracts, articles, etc.) once again as USCIS does not keep copies of these things. (Well, they do, but they are not easily retrievable as we suspect the files are sent somewhere near a top secret UFO landing site in Nevada.)

As the concert is not until July 2013, you won’t need to pay for premium processing and, if you file it as an amended petition, then you won’t need a new union letter. You’ll just need to pay the $325 filing fee.

Now for the resource: There is a lot of information on the substitution process at www.artistsfromabroad.org. You can also link to that site, as well as fine other resources on immigration, at our own website: www.ggartslaw.com

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

Multiple-Entry Visas: A Safe Bet

Wednesday, February 27th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

 

I am working on an orchestra tour for the 13-14 Season. We would like to include Canadian dates in the route, but they are neither possible at the beginning or end of the tour. Is it possible on a work visa, for a group to depart the USA for Canada for a couple of engagements and then re-enter the US as part of a single visa application? This was not possible for the Cubans, I was told. However, I know a Russian ballet company that was able to do this. My associate is confident this is not possible.

I hope you made a bet with your associate, because you’d win. Your associate is incorrect. Except for a specific list of countries, ALL visas are multiple-entry during the validity period. So, for example, if a UK citizen receives an O-1 for 1 year, he can enter, leave, and re-enter as often as he wants during that year. If a Russian orchestra receives a P-1 for 6 months, they can enter, leave, and re-enter as often as they want during that 6 months. Exceptions include such countries as China, Brazil, Cuba, and certain middle-eastern countries. You can find the complete list of countries that have restricted entries on the state department website at http://travel.state.gov/visa/fees/fees_3272.html

So long as a member of your orchestra is not from a country on the restricted entry list, then, provided you are able to obtain a P-1 visa for the orchestra for the 13-14 season, each member will be able to enter the US, leave and go to Canada, and re-enter the US whenever and as often as they wish. However, as they may need separate visas to enter Canada, you will need to check Canadian law immigration to confirm that.

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

You’re Not the Boss of Me!

Wednesday, February 20th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law & Disorder,

 

Our ensemble has recently had friction with its management over weather-related travel concerns. We had concerts scheduled during both Hurricane Sandy and this most recent blizzard in the Northeast, and as both approached, discussed postponing them with our management company. In both instances, they stated that since plane, train, and public transportation travel had been halted, we would need to rent a van and drive to the engagements. They said that due to the nature of our contracts, we would have to make every effort to get there no matter what. We had serious safety concerns about doing this, due to the predicted severity of the storms. In the end, it turned out in both instances that the presenters chose to reschedule the concerts for hopefully sunnier springtime dates, so we did not need to travel after all.

 

I know that our contracts with presenters include an “Act of God” clause, and my question is, who is empowered to make the decision about whether invoking this clause is the right thing to do? The presenter, our management company, or us? What if all three parties do not agree? Can we refuse to travel if we feel conditions are unsafe? Also, our ensemble is a non-profit organization, with the musicians hired as independent contractors. I am concerned that should we ever go ahead and travel to an engagement during bad weather conditions against our better judgment, and should an accident occur, that the individual musicians would have grounds to sue our non-profit for essentially telling them they must go. Would our management company be held responsible at all since they would not allow us to postpone? Help!

 

An “Act of God” clause is purely a creature of contract. It’s the terms of the contract (not God!) that defines what constitutes an “Act of God” and who gets to make the decision as to whether or not to invoke the clause. If the contract merely says something like: “This engagement may be canceled in the event of an Act of God”, it’s fairly meaningless. While I am familiar with lots of artists, managers, and presenters who prefer short and simple contracts, the problem with “short and simple” is that, in cases such as yours, it can also mean “vague and useless.” A good Act of God clause will define what constitutes an Act of God and who can make the determination, as well as address such issues as whether or not deposits need to get returned or engagements re-booked.

In your situation, to determine whether the nature of your contract, in fact, required you to make every effort to get there “no matter what,” I’d need to review your specific contract. However, I can’t image an engagement contract that actually required you to risk personal safely to get to the engagement—especially if planes, trains, and public transportation had all been halted. Even if you had, indeed, signed such a contract, there are always alternatives to risking personal safety merely to comply with a contract—including a legal defense called “impossibility of performance.”

Regardless of what a contract says or doesn’t say, the ultimate decision to cancel or postpone an engagement, whatever the reason, is always yours. Whether you’re canceling or postponing because you feel you cannot travel safely or canceling because you want to pursue a more enticing offer, those decisions are yours to make, not your manager’s.

Similar to Act of God clauses, manager/artist relationships are also defined and determined by contracts. However, unlike Act of God clauses, most state laws impose two legal obligations on all agents and managers which can never be waived or altered by contracts: (1) All managers owe a fiduciary duty to their artists (ie: they must put the artist’s interest above their own) and (2) All managers must follow the instructions and directives of their artists. (There are other obligations, too, but these are the most important.)

Like an attorney, a manager is there to provide advice, counsel, and direction, but not to give orders or commands. Unless a manager is also a producer, the manager works for the artist, not the other way around. Final decisions are always yours to make. Of course, the consequences—including being sued by presenter for breach of contract—are solely yours to bear, as well.

Granted, the manager/artist relationship should always be one of mutual respect, otherwise it doesn’t work for either of you. If a manager feels you are not taking their advice and counsel, and, as a result, you are adversely affecting your career, then the manager may rightly choose to no longer work with you. Likewise, if there comes a point when you believe your manager is putting his or her interest above your own, its time to move on.

As for your liability question, let’s save that for another post. For now, suffice it to say, under our less-than-intuitive legal system, anyone can sue anyone else for just about anything—especially if an artist is injured because you required them to drive in poor weather conditions. Get insurance! Stay tuned.

_________________________________________________________________

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

I’ll Show You My Visa If You Show Me Yours!

Wednesday, October 31st, 2012

By Brian Taylor Goldstein, Esq.

First and foremost: our thoughts and prayers go out to everyone recovering from and impacted by Hurricane Sandy. From property destruction to physical injuries and deaths, it has caused immeasurable damage. For those of us in the arts industry, its also caused cancellations and logistical nightmares, but performances can always be rescheduled. Now is the time for us to work together and remember what’s important.

Dear Law and Disorder:

I am writing because I am filing a visa application for a German orchestra conductor. He has been approved for an O-1 visa for a period of two years. He has multiple engagements and will need to come in and out of the U.S. during this time. I am hoping to apply for a multiple entry visa for him, however I cannot see an option to select the times he wants to come to U.S. on the visa application. Was this something I was supposed to request on the visa petition? What do I do?

Good news! There is nothing for you to do. Except with regard to a small list of specific countries, all US visas, once issued, are automatically multiple-entry!

If you visit the website of the United States State Department at http://travel.state.gov/visa/fees/fees_3272.html you will find the State Department “reciprocity” list. This contains the rules that govern the validity period of visas, the number of permissible entries, and fees charged for them. Its called a “reciprocity” list because the U.S. charges citizens of other countries whatever fees their countries charge U.S. citizens for similar types of visas and, reciprocally, limits the citizens of certain countries to visas as short as three months, and to visas valid for single entries only. In other words, the United States basically treats the citizens of other countries either as good or as bad as they treat citizens of the United States…diplomacy at its best!

For example, Chinese citizens are only eligible for single entry visas and their visas are only valid for three months at a time. So, even if USCIS approves a Chinese musician for an O-1 visa with a classification period of three years, pursuant to the “reciprocity” list, the consult will only grant the Chinese musician a visa valid for three months and a single entry. This means that, once the visa is issued, the Chinese musician has three months to enter the U.S. Once she enters the U.S., she can remain and work in the U.S. for the full three years of her approved O-1 classification. However, if she leaves at any time, she will need to return to the consulate and obtain a new visa before she can return. (NOTE: She will not need a new approval from USCIS. She merely needs to apply for a new visa at the consulate using her original I-797 approval notice.) Similarly, a Brazilian artist approved for a three year O-1 will be issued a multiple entry visa, but only valid for three months. During the three year period, they can enter and leave as often as they wish, but only for three months. After that, they must obtain a new visa.

In your case, there are no restrictions on German citizens. So, pursuant to the reciprocity list, if your conductor has been approved for a 2-year O-1, the consulate will automatically issue him a multiple entry O-1 visa valid for 2 years, during which time he can enter and leave the U.S. as many times as he likes during that period. There is no box or option to check because you are done.

________________________________________________________________

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

Can A Visitor Record An Album?

Wednesday, October 3rd, 2012

By Brian Taylor Goldstein

So glad I found your page on the internet, so far it’s been the most helpful out of all my Google searches! I have just a couple of questions. We are from Australia and I have a 14 year old son who has signed a recording contract in the US. Currently we are traveling back and forward on the Visa Waiver Program. I understand he is not aloud to perform until he has an “O” visa. However, is he aloud to record music in his producer’s studio for the album and take label meetings in the hope of placing a major recording contract? When I say meeting, its meeting with music labels for an interview/audition and you normally have to sing a song so that they can hear you and see if they like you in their office.

First of all, congratulations on the recording contract. Those are NOT easy to come by these days.

The visa waiver program allows citizens of certain countries (with Australia being among them) to enter the U.S. for up to 90 days as a “visitor” without first having to obtain an actual B1/B2 (visitor) visa from a U.S. Consulate. Citizens of visa waiver countries only need to have a valid passport to enter the U.S. as a visitor. When an individual enters on the visa waiver program, he or she is subject to all of the same rules and restrictions as if they had an actual visitor visa.

A “visitor” to the U.S. is allowed to do all of the normal visitor activities (sightseeing, shopping, visiting friends, etc.) as well as have business meetings. Visitors cannot work or look for work. Artists who enter as visitors are allowed to attend competitions and auditions (which, as we all know, is a heck of an amount of hard work!), as well as have meetings with producers, agents, and other arts professionals. However, with limited exceptions, they are not permitted to perform in front of an audience–even if they perform for free and/or no tickets are sold! An artist must have an appropriate artist visa (either an O or a P) in order to perform. When it comes to recordings, there’s a limited exception: A recording artist is permitted to come to the U.S. as a visitor to use recording facilities in the U.S., for recording purposes only, provided the recording will be distributed and sold only outside the U.S., and no public performances will be given. Otherwise, when recording artists enter the U.S. to record albums, they are required to obtain an appropriate artist visa.

In your situation, it is perfectly fine for you son to enter the U.S. on the visa waiver program to meet with his agents, producers, and representatives of his label. He can even have interviews and auditions. However, he cannot record music in his producer’s studio for purposes of a publicly released and distributed album unless it’s for an album that will be sold and released outside of the U.S.

You’re fortunate in that Musical America just released a fantastic downloadable report on the complex issue of obtaining U.S. visas for artists, full of helpful tips and explanations. You’ll also want to check out artistsfromabroad.org which has become the definitive resource tool on the issue and which contains an exhaustive array of information and materials.

_______________________________________________________________

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!

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

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