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The Elephant and The Frog

Thursday, May 29th, 2014

By Robyn Guilliams

Dear Law & Order

I’ve been hearing a lot about a recent U.S. ban on ivory that will prevent string players from transporting their instruments in and out of the country. However, I recently travelled to Europe and back with my cello (my bow has a small ivory inlay in the frog), with no problem. What’s the story?

What a great question! There has been a lot of press lately about the “new” ban on ivory, which will affect musicians whose instruments contain even a tiny amount of ivory. Although a number of issues related to the ban are yet unresolved, here’s what we know thus far:

The ban is not really new. U.S. law has prohibited items containing ivory, Brazilian rosewood and tortoiseshell from being brought into or taken from the U.S. for a number of years. (Many other countries have similar laws.) While these laws haven’t been enforced in the past, the U.S. recently signed the Convention on International Trade in Endangered Species of Wild Fauna and Flora (known as the CITES treaty) with 189 other countries. The purpose of the CITES treaty is to ensure that international trade in specimens of wild animals and plants does not threaten their survival. Save the elephants and the sea turtles!

Fortunately, the governments participating in CITES realized that the treaty rules would make it impossible for some musicians to travel internationally with their instruments. For this reason, CITES provides that musicians may obtain a certificate (or “passport”) that will allow them to transport internationally instruments that contain ivory and/or rosewood, and other banned materials (such as certain types of wood and sea turtle shell). The passport, which is good for three years and is attached to the person, not the instrument (i.e., it’s not transferable), will allow the musician to travel with his/her instrument throughout the 189 countries without any problems (in theory).

There is no question that, at some point in the future, musicians with instruments containing ivory, rosewood, etc., who wish to travel internationally with their instruments must obtain this passport. However, at this point, there still are serious problems with the passport system:

The passport currently is accepted at a very limited number of US ports. There currently are 18 ports that permit items relating to “endangered species” (ivory and tortoiseshell) to be brought into the country. There are 15 ports that allow items related to “endangered wild fauna” (rosewood and other banned woods). Only nine of these ports overlap. I.e., if your instrument contains both ivory and rosewood, there are only nine ports at which you may enter the U.S.

In theory, one may request entry into a non-designated U.S. port. However, the process for obtaining this permission is a mystery right now, and will vary from port to port.

The process for obtaining an instrument passport in the U.S. are still a bit in flux, as this is something quite new that the U.S. Fish & Wildlife Agency is dealing with. In other words, we are dealing with a government agency working out the kinks of a brand new procedure—which means, if you plan to obtain an instrument passport in the very near future, expect delays and (potentially) other problems. In fact, if you don’t plan to travel in the near future, you may want to sit back and relax, and concern yourself with obtaining your passport later (after the government has worked out its procedural problems on other poor souls!)

Obviously, one must obtain an instrument passport from their own country, so the rules may be different in various countries.

The great concern at this point is enforcement – when will it begin, and how? Will there be any sort of grace period? Unfortunately, these questions remain unanswered by U.S. Fish & Wildlife. The good news is that, at present, we know of no cases of instruments being confiscated and/or destroyed. (Let us be grateful for what we have…)

More details on the ban, the instrument passports, and potential enforcement are available at the League of American Orchestras’ website: http://americanorchestras.org/advocacy-government/travel-with-instruments/endangered-species-material/ivory-ban-impact-on-orchestras.html

So the question for musicians is this: Do they continue to travel with their instruments internationally with no passport, and hope for the best until enforcement begins? Or do they go ahead and apply for a passport? If they choose the first route, there is the risk (though minimal at this point) that their instrument will be confiscated. If they choose the latter route, they risk enduring extra scrutiny from airport personnel who aren’t yet familiar with the new regulations and procedures. Each person must weigh the pros and cons, considering their individual circumstances and.

Finally, I want to give a shout out to Heather Noonan at the League of American Orchestras, who has devoted an enormous amount of time an effort to this cause. Many of you know this already, but Heather has been at the forefront of this issue and others, working tirelessly on behalf of musicians and orchestras. Whenever I speak to her, she is on the move, on her way to meet with yet another charming legislator to advocate for musicians affected by the ivory ban, or for orchestras and other arts organizations affected by the latest kerfuffle with USCIS, or on other issues that affect our industry. She works constantly to remind our elected officials that the arts, and artists, matter. Thank you Heather!

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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 and/or posthumously.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

Tags:artist, orchestra, orchestras, passports, permission, risk, Robyn Guilliams, travel
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring | Comments Closed

The Hogwarts School of Contracting and Wizardry

Thursday, May 15th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

I had a signed agreement with a promoter to present my artist. The contract provided for two deposits and a final payment on the day of the performance. I worked for over a year with this promoter to put this deal together. Not only did he not pay either of the deposits, but one month before the performance, he called to say he hadn’t sold enough tickets and that it was no longer economically feasible. And he is refusing to pay the money he owes. What am I supposed to do? Sue him? Why should I have to spend the time and money to sue him when we have a signed contract? What’s the point of having a contract in the first place if its not going to protect me?

For many years now I have been climbing the stairs to my secret laboratory trying to create the self-enforcing contract. Upon anyone breaching the terms of such a contract, a magical enforcement beast will materialize, forcing the breaching party into compliance. Sadly, my efforts thus far have proven unsuccessful, resulting only in a few sparks, a bit of ectoplasm still dripping from the ceiling, and a hapless paralegal I may have inadvertently turned into a newt. Until I perfect my spells and enchantments, you’ll have to settle for the fact that contracts are only as valuable as the time, effort, and common sense that goes into them. They do not exist in a vacuum. They do not self-enforce.

The point of a contract is not to get signatures on some form or template littered with extraneous terms that everyone believes are “industry standard”, but no one really reads or understands, in the hopes that it will somehow, in and of itself, stalwartly protect you from the other party cancelling your engagement, refusing to pay, or performing any other courser of unpleasantness. Rather, the point of a contract is the opportunity it creates for you to enter into deals, negotiations, collaborations, engagements, and other relationships knowingly and intelligently. Among other things, it allows you to make sure everyone is on the same page (ie: Do you define net profits the same way I define net profits? Can I cancel if I don’t sell enough tickets?). It allows you to create benchmarks by which you can judge performance and good will (ie: Did the other party pay the deposit on time? Did the check clear?). It allows you to “test the waters” before jumping into a new relationship by first seeing if you and the other party can work together to resolve differences and challenges in the creation of the relationship in the first place.

Sometimes, having a contract can also provide you with leverage. If you can point out that the other party clearly did or didn’t do something which they clearly agreed to do or not do, that pressure alone can often be enough to force compliance. However, if the leverage doesn’t work, you are ultimately left with the sobering fact that the only way to enforce a breached contract is though a lawsuit (or arbitration, if your contract provided for that.) Even then, if you win a lawsuit, you still have to collect the money. A judgment does not automatically guarantee payment. (I’m working on a self-paying judgment, too, as soon as figure out how to change lead into gold.)

The key is not to let the situation get to the enforcement stage in the first place. While some contractual breaches are unavoidable, most are the result of one the parties ignoring warning signs or not taking advantage of the contractual process. For example, a recent client of mine negotiated the terms of an engagement which included the standard items such as dates, time, repertoire, and fees. Everyone agreed. However, when she sent the contract to the presenter, the presenter discovered that the artist expected additional costs to be paid for transportation. My client, on the other hand, discovered that the presenter wanted the artist to obtain insurance to cover all the members of his orchestra. Neither of these topics had been discovered during the initial discussions. Fortunately, both my client and the presenter took the time to read the contract. Even more fortunately, both parties scheduled a time to talk about their respective concerns, worked out compromises, re-drafted the contract, and everything worked out great. Similarly, I was recently negotiation a recording contract on behalf of an artist. When I tried to discuss certain contractual discrepancies and concerns with the other party, rather than engage in solutions, they merely insisted I should trust them and enter into the deal based on “good faith.” That made me trust them even less. My artist really wanted this deal, but I convinced them not to take the risk. In the end, we wound up finding a better deal.

In your case, if your contract provided for two deposits, and the promoter didn’t pay either one, at what point did you not realize that this train was going to jump the tracks? That’s like sending off a contract, not getting a response back from the presenter or manager, having the other party ignore your phone calls and emails, and the pretending to be shocked to find out the deal is being cancelled…you can’t cancel what was never a deal in the first place. At the time the deadline for the first deposit came and went, that was your time to stop and evaluate whether or not to proceed. If, your professional judgment, it was worth waiting until the second deposit was due, great. However, by the time the second deposit deadline came, that should have been the time to bail. If you decided to rely solely on the contract to protect you, then you were also accepting the fact that if the presenter didn’t pay or cancelled at the last minute, you would have to enforce payment by filing a lawsuit. There are many times that rolling the dice makes legitimate business sense, but you have to accept that for what it is—gambling. Unless you want to incur legal fees and court costs, not to mention lost time, if you gamble and lose, move on.

This is inherently a risky business. Contracts allow you evaluate and, in some instances, minimalize risk, but never eliminate it. Only you can protect you. You and a little pixie dust.

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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.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, breach, breaches, Brian Taylor, contract, Contracts, engagements, Goldstein, insurance, judgment, lawsuit, manager, money, negotiation, payment, presenter, promoter, relationships, risk, work
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Presenters | Comments Closed

How Much Is That Artist In The Window?

Thursday, April 24th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

My ensemble has been approached by a composer/musician who would like them to do two days of recording for music that she is composing for a theater company. My understanding is that this theater company does quite a bit of touring. Do musicians typically get royalties each time the recording is performed or would this just be a buyout situation with the composer?

As, typically, most musicians rarely get paid what they deserve, I’d rather find a better standard.

We don’t often like to think of performing artists as a commodity, but it situations such as this that remind us why show business is a “business.” Like pricing any other product or service, it always comes down to how badly the buyer wants what you’re selling and how badly you want to sell it to them. In this case, you’ve got two things to sell: (1) the time and talent of the artists to show up for two days and perform whilst being recorded and (2) the right to use the recording of their performance. You can sell them together or separately. You can sell all of the rights or only some of the rights. You can also include any restrictions, limitations, or conditions that you feel might be beneficial to the ensemble. Unlike selling used cars, there’s no Blue Book where you can look up pre-determined values. Nothing is standard. Figuring out what to charge and how to charge ultimately depends on an analysis of the specific circumstances of how the recording will be used:

Will the recording be used as background music or as a featured part of the theater company’s production? Will there be other recordings by other prominent artists used during the same performances or as part of the same production? Will the theater company be using the recording for performances at commercial venues or PACs? What is the commercial potential of the production? Do they intend to use the recording to produce and sell a soundtrack or just use the recording for performances? Does being associated with this particular composer or the theater company bring any value or heightened exposure to your ensemble? Is your ensemble more interested in the exposure or the money? Would the recording be something the ensemble would like to use for its own purposes?

Personally, some of the terms I’ve negotiated myself in similar situations as yours have included:

Granting the rights to use the recording only for live stage performances, but not for soundtracks, CDs, or digital downloads, each of which would require additional fees and payments.
Granting the rights to use the recording for live stage performances except for Broadway, Off-Broadway, or 1^st class runs.
Granting the rights to use the recording only for a specific period of time, after which, if they wanted to continue using it, they have to re-negotiate.
Granting the rights to use the recording in exchange for booking the artists to perform live for a specific number of performances.

Such arrangements can include, where warranted, flat fees or royalties, or a combination of both, or even a percentage of box office from each performance. You can also request that the ensemble be credited in all programs or liner notes, or request that the ensemble get the rights to use the recording for its own promotional purposes. Like any negotiation, the other side may refuse, or propose its own terms, but you need to start somewhere–and, like any good auctioneer, you never want to start the bidding too low.

While it’s certainly tempting to keep things simple and just do a buyout where you charge a flat fee consisting of the engagement fee for the performance and a fee for the rights to the recording, you may be missing out on an opportunity to get creative and explore the possibilities to look beyond the fees and maximize the potential of the entire project to benefit your ensemble.

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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.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, box office, Brian Taylor, CD, composer, Goldstein, music, musician, negotiation, payment, recording, royalties, Tour, venue
Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Recordings | Comments Closed

Beware of Easy Solutions

Thursday, April 17th, 2014

By Brian Taylor Goldstein, Esq.

A conductor we manage has been invited to conduct one of the orchestras of a University in the United States later this year. He has worked there once before when he conducted performances when he had a J-1 visa. On this occasion however due to the short length of the engagement (6 days), they have suggested that he should apply for a B-1/WB Business Status. The advantages of this is that the artist can do it himself, online, up to 72 hours before his departure and that the cost is approximately $4. The person I am dealing with at the University sent me “guidelines” which say that a person can enter the US on B-1/WB Business Status Visa, and receive an honorarium, as well as be reimbursed for travel and a per diem, if they will be a “lecturer or speaker” at a university or academic institution. They also told me that because our conductor is a citizen of a country that participates in the visa waiver program, he doesn’t even need to apply for such a visa and that it will be granted at the airport when he arrives. All he needs to do is register online for ESTA. This sounds too good to be true! I am very worried that this will not work. Otherwise, the university says we will need to get another J-1 visa.

Unfortunately…or, fortunately…your instincts are correct. The process for getting artists approved to perform in the United States can be so daunting to some that it is understandable that they look for easy or simple answers. With any legal issues—not just visas, but taxes, licenses, contracts, insurance, etc.—if something sounds too good to be true, that’s often the case.

B-1/WB Business Status (which, more accurately, is simply referred to as a B-1/B-2) is just the more formal name for “visitor status.” A B-1/B-2 (“visitor”) visa allows individuals to enter to the United States for visitor activities (touring, shopping, etc.) as well as certain business activities (meetings and conferences). B-1/B-2 status also permits an individual to be a lecturer or speaker at a university or academic institution, and receive an honorarium as well as travel reimbursement and a per diem.

A B-1/B-2 (“visitor”) visa can only be issued by a US Consulate. However, if an individual is a citizen of a country that participates in the Visa Waiver Program, then, by registering on-line with ESTA (Electronic System for Travel Authorization), he or she does not need to obtain an actual visa and are allowed to enter the US as visitors with only a valid passport. All of the restrictions applicable to visitors will apply—including the too often overlooked fact that an artist can never perform in visitor status, regardless of whether or not the artist is paid or unpaid.

Contrary to the “guidelines” you were provided by the university, your conductor is NOT a “lecturer or speaker.” If he is being engaged to conduct an orchestra then that is considered a “performance”, not a lecture or speech, and he is required to have an O-1 visa. The school is also wrong about the J-1 visa. This is not applicable. That is for an “exchange” program, which is also inapplicable in the case. Your conductor needs to obtain an O-1 visa.

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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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, Brian Taylor, contract, Goldstein, insurance, license, music, orchestra, Tour, travel, university, valid passport, visa waiver program, visas, visitor, waiver, work
Posted in Artist Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Does Background Music Require A Dramatic License?

Thursday, April 3rd, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I have written a one-man show. Do I need to get a dramatic license for background music?

Just to make sure we’re all on the same page, let’s review:

In order for music to be “performed” (either live or via a recording) in a public place, there needs to be a “performance license.” Most often, these licenses are obtained from one of the performance rights organizations (ASACP, BMI or SESAC) and, most often, they are obtained by the theater, concert hall, or venue where the performance is taking place.

In order to perform music “dramatically”—that is, to use a composition as an integral part of a story or plot, or to interpret the composition dramatically, such as through the use of movement, costumes, and props—you must obtain a “dramatic license.” Most often, these licenses are obtained by the composer or producer of the dramatic work.

In short, you will always need a performance license to “perform” music. Whether or not you also need to obtain a “dramatic license” depends on the context of how you are using the composition. These contextual distinctions can be articulated as follows: if you plan to stand and perform, you only need a performance license. If, on the other hand, your performance involves sets and costumes and you will be performing the composition to help tell a story, develop a character, or interpret the composition, you will need both a dramatic license as well as a performance license.

In your case, your answer depends on what you mean by “background music.” If the music is being used purely to create a mood or theme and could easily be replaced with other music with a similar mood or theme (ie: “insert disco music here” or “play something peppy here”), then you only need a performance license. If, on the other hand, your show requires a specific work to be performed in the background at a specific time to help you dramatically convey a specific emotion or event in your narrative (ie: “Somewhere Over The Rainbow” plays in the background while you tell the story of the tornado that dropped a house on your sister), and the thought of replacing that work with anything else renders you heartsick and artistically impotent, then you need a dramatic license.

If you plan on re-recording the works (or recording your own performance), changing the orchestrations, or otherwise making any significant changes or adaptations other than those written by the composer, other licenses may be required as well. As a general rule of thumb, when using any creative material you did not create yourself, its always safest to ask first and use later.

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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.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, bmi, Brian Taylor, composer, composition, dance, dramatic license, Goldstein, music, orchestrations, performance license, performance rights, recording, sesac, venue
Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Music Rights, Publishing, Venues | Comments Closed

Does An Artist Need An Original Visa Approval Notice?

Thursday, March 27th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

Does a conductor who has been approved for an O-1 visa need to bring the original approval notice to the consulate or will a color scan of the original work? We have been getting conflicting information, including a representative at the consulate telling us on the phone that he would also need the original to enter the US. We are also concerned because when we try to schedule his appointment at the consulate we keep getting locked out of the system. Is this because we need the original or a different approval number than the one we have?

Like any large institution, the various branches and agencies of our government are populated both with dedicated, intelligent employees who do exemplary jobs under stressful and demanding circumstances as well as with lower level invertebrates who slithered in searching for food and mysteriously found themselves employed. Sadly, you appear to have been given information from a fruit fly.

The conductor’s visa petition needs to be approved by the time of his visa appointment, but he does NOT need to bring the original approval notice with him. When a petition is filed, USCIS will issue a petition receipt notice. The receipt notice will contain a receipt number—beginning with “EAC” if it was filed at the Vermont Service Center or beginning with “WAC” if it was filed with the California Service Center.” You can use that receipt number to schedule an appointment at the consulate.

Once the petition is approved, USCIS will issue an approval notice. (As I mentioned in a recent post, be prepared to wait longer for approval notices from both services centers these days. Vermont Service Center is currently taking 30 – 60 days for standard processing of O and P petitions!!!!) The approval notice will contain the same number as the receipt number. At the time of the interview, the Consular Office will use the receipt/approval number to confirm that the petition has been approved. While, in ages past, the consulates used to require the physical approval notice, that system was replaced over 5 years ago with an on-line verification system whereby the consulate can confirm an approval using the receipt/approval number and accessing the USCIS petition approval verification database. However, be forewarned that it can take up to three days between the date of the approval and the approval itself being entered into the database. Bringing a copy of the physical approval notice will not help bridge this gap. Under the new system, the consulate is not allowed to issue a visa until they have confirmed approval in the database. In other words, the physical approval notice has been rendered obsolete.

Although we continue to recommend that an artist bring a copy of the approval notice (or the original, if available) to the appointment for reference, neither the original nor a color print out of the scanned original is necessary. While, occasionally, the folks manning the switchboards and appointment lines of some consulates tell people to bring the original approval notice, the US State Department has repeatedly re-affirmed that this is not mandatory and the Consular Officers themselves are well aware of this. As for being told that the original is required in order to enter the US, that, too, is pure misinformation.

If you are experiencing an error in the on-line system, it has nothing to do with your approval notice. Rather, it is due to the fact that government contracts for software design and maintenance are too often meted out to the lowest bidder. I suspect you are the victim of a software glitch on the consulate’s website, which is not in the least uncommon. Just wait and keep trying.

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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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:approval notice, artist, Brian Taylor, Goldstein, petitions, uscis, visa approval, visa petition
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

US VISA WARNING: Beware of the Vermont Service Center! Abandon All Hope Ye Who File There!

Thursday, March 6th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

We filed P-1 and P-1S visa petitions at the Vermont Service Center for a group we have been touring regularly for the past 5 years. This would have been their sixth P-1 visa. Last year, we were getting petitions approved in about week. This time, after waiting 4 weeks, we got a notice asking us for a copy of our contract with the group, among other items. We’re the agent and never had to provide this before. They also wanted our contract with the group’s tour manager. We don’t have a contract with the group’s tour manager. We explained that and the P-1S petition got denied. But this same tour manager was approved last year and we supplied the same evidence this time that we did last year. What’s going on?

I wish I knew. After a period of uncharacteristic, but welcome, efficiency and competency for almost a year, the USCIS Vermont Service Center has imploded. Whether they were hit by a radioactive meteor, unearthed a demonic spirit living beneath the mail room, or were attacked by brain-eating zombies (who doubtlessly left disappointed and hungry), we may never know. What we do know is that we have been receiving multiple reports from all sectors of the performing arts reporting major problems with the Vermont Service Center, including significant processing delays, inane RFEs (Requests for Evidence), and even outright denials for O and P artists who have previously been approved for O and P visas.

The League of American Orchestras, in collaboration with the broader performing arts community, is submitting a formal complaint, as is AILA (the American Immigration Lawyers Association). In the meantime, here is a list of some of the most serious problems we have encountered and some suggestions on how to address them:

1. Processing Delays.

As many of you may recall, USCIS entered into a voluntary commitment to improve processing times for artist visas and, as recently as December 2013, regular processing times for O and P visa petitions were averaging 2 weeks or less. For the last year, our clients rarely had to pay the extra $1225 for premium processing. However, as most of you know all too well, the problem with anything “voluntary” is that you can’t force a volunteer to do anything. While the USCIS website continues to list an average timeframe of 14 days for regular processing of O and P visa petitions, the reality is that it is currently taking 30 days or longer. In some instances, VSC has taken over two weeks just to issue a receipt notice.

SOLUTION: Do not rely on the projected processing times listed on the USCIS website! File petitions as far in advance as possible or seriously consider premium processing any petition where the artist needs to arrive in less than 2 months from the date of filing.

2. RFEs Asking For What Seems Obvious.

For example, orchestras have reported receiving RFEs on petitions filed for internationally known conductors (many of whom have been approved for prior O-1 visas) where USCIS asked for further evidence on how a conductor is critical or plays a lead role in an orchestra. USCIS has also been issuing RFEs asking for an explanation of why an Executive Director provides “essential support” to a group on tour or asking for a list of the duties of a Stage Manager or Lighting Designer.

SOLUTION: We have always recommended that, when it comes to preparing visa petitions, never assume that the USCIS examiner has any familiarity with the performing arts. This seems to be the case now more than ever. Always err on the side of over-explaining everything—What does a Concert Master do? Why is a specific award important? Covent Garden is an opera house, not a plant nursery. Etc. USCIS seems to be particularly focused on petitions for P-1S and O-2 support personal. As such, it is no longer sufficient simply to list the names and jobs of support personnel. Provide a brief biography for each person, along with a short, but specific explanation of their duties and experience working with the O-1 artist or P-1 group.

3. RFEs Asking For Employment Contracts For Support Personnel.

In yet a further attempt to thwart O-2 and P-1S petitions, USCIS has been issuing RFEs asking for evidence of who will be employing each support person. For example, if your petition includes engagement letters or contracts from presenters booking the O-1 artist or P-1 group, USCIS also wants to see the employment terms for each O-2 or P-1S support person.

SOLUTION: Provide either a statement from the O-1 artist or P-1 group explaining who will be paying the fees or salaries of each support person or provide a very basic deal memo or term sheet for each O-2 or P-1S support person outlining the fees they will be receiving and who will be paying them.

4. Unsigned Contracts

USCIS has recently been rejecting blank or unsigned contracts. USCIS wants either a signed engagement contract or written summary of the terms of an engagement.

SOLUTION: Do not send USCIS anything with a signature line on it which is not signed, especially contracts. If you have an unsigned contract, either get it signed or don’t send it. Instead, submit a copy of an email confirming the engagement terms, a written summary of the engagement terms, a letter to or from a venue confirming the engagement terms and signed by the sender, or a deal memo listing all the terms, but with no place for anyone to sign anything.

5. Truncated Classification Periods.

In the past, USCIS has been willing to approve visa petitions to cover additional time before and after a performance to accommodate rehearsals, extra performances, and unanticipated activities. More recently, however, USCIS has been issuing approval notices only for the specific time reflected in the engagement contracts or confirmations. For example, if your petition asks for a classification period of March 1, 2014 through February 28, 2015, but the performance contracts only reflect performances between March 11, 2014 and February 20, 2015, USCIS is issuing the approval notice only for March 11, 2014 through February 20, 2015.

SOLUTION: Make sure that the contracts and written confirmations you supply in support of your classification period reflect the actual dates you need. For example, if the performance is on March 11, 2014, but the artist or group wants to enter on March 6, 2014, make sure that the contract or written confirmation reflects that the artist is required to enter the US on March 6, 2014.

While the bulk of this madness seems to be coming from the Vermont Service Center, there is every reason to believe that the California Service Center will not be far behind. Until this sorts itself out, file early, provide as much supporting documentation and details as you can, and continue to check www.artistsfromabroad.org as well as our own website for further updates.

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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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agent, approval notice, artist, artistsfromabroad, Brian Taylor, contract, Contracts, copy, engagement contract, Goldstein, immigration, immigration law, petitions, processing times, Tour, uscis, visa petition, visa petitions, visas, work
Posted in Agents, Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Rattle Sabers, Not Contracts

Thursday, February 27th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

We recently had a presenter call us and cancel an engagement “due to inclement weather” because the company’s flight was canceled and they could not arrive the day before the performance as required. The company offered to fly the next day and arrive on the afternoon of the performance. However, the presenter expressed that they were not comfortable with this because they felt the company would not arrive at the theater in time to run a tech with their team and also had the fear that the company would not arrive in time to perform. The engagement contract has a Force Majeure clause that says:

In the event that the performance of any of the covenants of this agreement on the part of the Company or the Presenter shall be prevented by…act of God, illness, physical disability, acts or regulations of public authorities or labor unions, labor difficulties, strike, war, epidemic, interruption or delay of transportation service, or any other causes beyond the reasonable control of such party, such party shall be relieved of its obligations thereunder with respect to the Performance(s) so prevented on account of such cause. If the Performance(s) shall be prevented due to a Force Majeure event, neither the Company nor the Presenter shall be under any obligation to present the Performance at a different time, except that if the Performance(s) shall be prevented for any of the foregoing causes, the Presenter shall use its best efforts to re-engage the Company within a twenty-four (24) month period on the same terms and conditions set forth herein, subject however to Company’s availability…In the event that the performance is cancelled due to Force Majeure on the Artist’s behalf, all deposit monies will be returned to Presenter. In the event that the Presenter cancels the performance for any reason other than those described in the preceding paragraph, then the Presenter is responsible for the full fee.

Do we have to return the deposit since the company was willing to fly in the next day, but Presenter decided to cancel anyway? Can we ask for the full fee? We have not yet spoken to the Presenter, but wanted to be forearmed before we do so we can stand our ground.

“Forearmed” for what? Has the Presenter asked for the deposit back? Are you planning on initiating this “battle”? A contract is a tool, not a weapon to be rattled like a sabre. If you approach this as a “battle”, here’s how it will likely play out:

Presenter: Great to see you at APAP. Thanks for the drinks. I’m afraid we’re going to need the deposit back because the artists couldn’t get here due to weather. The force majeur was theirs.

Manager: But they were willing and able to come the next day. You didn’t want to take that risk. So, you cancelled. In fact, you owe us the rest of the performance fee. And, thanks for the birthday card. That cat was adorable.

Presenter: It’s industry standard for the deposit to be returned when there is a cancellation due to weather.

Manager: But you cancelled and its industry standard that the artist gets paid if the presenter cancels.

Presenter: The company’s flight was cancelled because of the snow. That’s a force majeur.

Manager: The weather prevented the artist from arriving the day before the concert. They could have arrived on the day of the performance. You didn’t want them, so you cancelled and the contract says if you cancel we get to keep the deposit and you owe the full fee.

Presenter: But that’s not industry standard

Manager: It’s what’s in the contract.

Presenter: We were forced to cancel the performance and refund the tickets, which didn’t sell that well anyway. I just didn’t want to say anything about that earlier because of our good relationship. We can’t take those kinds of losses. We are a non-profit.

Manager: The artist had losses, too. And if you weren’t selling tickets, then you should have told me sooner so I could help with the marketing. If you had marketed better, the show sells itself.

Presenter: No show sells itself. Did I mention we are a non-profit?

Manager: We can’t give the deposit back and the company can’t afford to take a loss on this tour. It’s not their fault it snowed.

Presenter: It’s not our fault either, which is why we need the deposit back.

Manager: I spoke with an attorney and we will have to turn this over to legal counsel if we have to. It not personal.

Presenter: I understand. This isn’t personal on my end either, but we have a free attorney on our board and they will sue you to get our money back…and I won’t ever hire any artist on your roster again.

Manager: Fine

Presenter: Fine

…and scene…

Unless you are dealing with the cancellation of the road tour of “Spiderman”, neither of the parties will…or should…be willing to spend the money, time, and energy necessary to sue each other, so they will just stew over this, avoid each other at conferences, and write nasty things about each other on social platforms.

The point of having an engagement agreement, or any contract, much less as force majeure clause, is to identify problems ahead of time and articulate in advance how disputes will be resolved. In your case, based on the engagement agreement, both parties knew that, in the event of snow or other unforeseeable issues, either could be facing losses they might not be able to recover. A force majeure operates like an “excuse.” It gives each party the right to cancel under certain conditions without having such cancellation become a breach. However, because it isn’t a breach, neither party is going to emerge unscathed. Someone is either going to have lost out-of-pocket costs they can’t recover, or a deposit they can’t get back, or both. However, knowing this, hopefully, allows you to budget and plan for various eventualities.

In this scenario, the phrase “due to Force Majeure on the Artist’s behalf” isn’t really defined. However, a reasonable interpretation is that the cancellation of the artist’s flight constituted a force majeur event on the part of the artists—in other words, it was their flight that was cancelled. The fact that the artists were willing to travel on the day of the performance was a reasonable solution, but it was just as reasonable for the presenter not to want to take that risk. The more important issue is that the engagement agreement requires the presenter to use its “best efforts” to try and re-book the date within the next two years. That’s the first place to start. If you can find a mutually agreeable date, problem solved—you keep the deposit and they presenter pays the balance of the fee after the next performance date. (No, you can’t ask for a higher fee if it’s the same performance!) If you can’t find a date within the next two years, then its reasonable for the artist to keep the deposit, but the presenter not to have to pay the remaining fee. “Reasonable” doesn’t mean that everyone will agree or be happy. “Reasonable” usually means that everyone walks away with less than what they wanted, but more than there were probably entitled to, which, for me, is a much better solution any day than mutually assured self-destruction.

_________________________________________________________________

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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:act of god, artist, attorney, breach, Brian Taylor, cancellation, contract, Contracts, dispute, engagement contract, force majeure, Goldstein, interpretation, lawsuit, losses, manager, marketing, presenter, reasonable solution, risk, Tour, travel
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Non-Profits, Presenters, Touring, Venues | Comments Closed

Too Fast and Furious To Get A Visa!

Thursday, February 20th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We filed a P-1 petition for an orchestra that is to perform at our venue. The petition was approved and it includes the orchestra’s conductor. However, the conductor just informed us that he does not want to go the consulate and apply for his P-1 visa (he says he just doesn’t have time for such an inconvenience.). Instead, he wants to enter as a visitor on the ESTA/Visa Waiver Program. He claims he did this when the orchestra toured the United States last year, including performing at our venue, and there was no problem, so he wants to do it again. We never realized he performed for us last year as a visitor. Are we in trouble? What if he insists on doing this again this season? What are the risks for us and for him?

Unless this is the conductor of the Hogwarts Symphony Orchestra, he seems to be laboring under the misbelief that he can waive his magic baton and dismiss anything he finds unpleasant, inconvenient, or displeasing. If only that were true.

Your situation presents several problems, the first and most immediate being that, under U.S. Immigration Law (however, inane we may all agree it is), an artist is not allowed to perform in the U.S. while on a visitor visa. Regardless of whether or not tickets are sold and regardless of whether or not the artist is paid in the U.S. or abroad (or even if the artist performs for free), no performance activities are permitted while an artist is in visitor status. Unless an artist has been admitted on an O or P visa, or has been admitted in some other applicable work authorized classification, any performances are illegal.

Technically, as the presenter/venue, you are supposed to verify the work authorization of each artist who performs for you. Had the conductor presented his visa (or lack thereof) to you last season, it would have quickly been discovered that he was not authorized to perform. On the slim chance you were ever audited for immigration compliance, your venue could be found to have violated U.S. Immigration law by facilitating the illegal performance of a non-U.S. artist without proper work authorization. Penalties could range from fines to the greater scrutiny of future visa petitions.

I understand that, in this case, the conductor in question was able to enter the U.S on the ESTA program, perform, and leave without issue. He was lucky….and so were you. While I can see the temptation to try the same deception again, especially for a busy conductor who does not want to make a trip to a U.S. Consulate, such luck cannot continue indefinitely.

While U.S. Consular Officers and U.S. Customs and Border Protection Officers are as vigilant as possible, they cannot catch every violator on every occasion. The situation is much like running a red light, or committing any other criminal or penal violation, without getting caught. The lack of an arrest does not make the crime any less illegal. In this case, however, the penalties for an immigration violation can be more severe than a mere traffic ticket.

For an artist, presenting oneself at the border and asking for admission as a visitor, when the artist, in fact, intends to perform illegally constitutes a fraudulent misrepresentation to a federal law enforcement officer and constitutes a felony. If caught, the artist can be subject to immediate deportation as well as restrictions on future travel, visas, and work authorization. While I am familiar with many Non-U.S. artists who have managed to sneak in and out and perform as visitors on various occasions, I am also familiar with many who have been caught, even after years of being undetected.

In one case in particular, an internationally known artist who had held multiple O-1 visas over the course of his career, found himself with an approved O-1 petition, but unable to find the time to travel to a U.S. Consulate for an interview and to receive a physical O-1 visa. Instead, he entered as a visitor. Much to the dismay of him and his management, he was discovered. Because of his notoriety and international standing, he was not deported. However, because of his attempted fraudulent entry, his visitor privileges were revoked and for the next six years he was required to seek a “waiver of inadmissibility” every time he went to a U.S. Consulate to apply for a visa. Such a waiver adds an extra 2 – 3 weeks of processing time to the issuance of a visa.

I am also familiar with a management company whose future immigration petitions have been consistently flagged for extra review and processing when it was discovered that there were knowingly assisting artists in filing deception P-1 petitions.

As you can see, I would strongly advise the conductor that the immediate temptation of avoiding the time and hassle of a trip to the consulate is outweighed by the potential loss of his ability to travel and work in the U.S. Ultimately, if he decides to continue running the red light on the assumption that he won’t get caught, you and your venue should not be required to go joy riding with him.

_________________________________________________________________

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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, Brian Taylor, Goldstein, immigration, immigration law, orchestra, petitions, presenter, symphony, Tour, travel, venue, visa petition, visa petitions, visa waiver program, visas, visitor, visitor visa, waiver, work, work authorization
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Gosh, That Sounds Familiar!

Thursday, February 6th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

A composer has been commissioned to write an ‘original’ work for a particular soloist or specific chamber ensemble. The commission agreement stipulates that the performing artist is granted exclusivity, giving the artist a certain period of time in which he/she has the sole right to perform the new work for a specified length of time. During that period, the composer has an opportunity to expand the work, making certain modifications and reconfiguring the piece for a different and larger group, such as a chamber orchestra or full orchestra. Can the new work, although based on the originally commissioned score, be considered sufficiently different in its new configuration, to be exempt from the exclusivity requirements, outlined in the original commission?

One of the cornerstones of English Common Law is the principal that: Everything which is not forbidden is allowed. However, this presumes that with such freedom comes the wisdom to discern that everything which is permitted is not necessarily advisable. For example, the fact that we are legally entitled to eat as many deep fried twinkies as we wish, does not necessarily mean that we should.

As we’ve discussed before in this blog, when a composer is commissioned to write a new work the mere act of paying for the work to be composed does not in and of itself convey anything to the commissioner—other than the pleasure and fulfillment of facilitating the act of creation. If the commissioner wants the rights to perform or record the work, or wants a specific artist to be able to perform or record the work, such rights must be specified in the commission agreement. Otherwise, all rights to the commissioned work are exclusively owned and controlled by the composer—including the rights to modify, amend, re-arrange, re-configure, re-orchestrate, and do anything else with the work the composer chooses.

If the commission agreement includes the right for a soloist or ensemble to perform the work for a certain period of time, then the commission agreement must also specify exactly what rights are being conveyed. Anything not specified, belongs to the composer. For example, does the soloist or ensemble have the exclusive right to perform the work as titled or can the composer grant permission for other artists to perform it under a different title? More importantly, how is the word “work” defined? Does the artist’s right to perform the “work” include the right to perform modifications, changes, edits, re-orchestrations, re-configurations, or other variations of the work? Can the artist make such changes herself or only with the composer’s permission? Even if the artist has no rights to such changes or variations, does the artist’s rights of exclusivity prohibit the composer from composing variations and re-orchestrations and permitting other artists and ensembles to perform them? It all depends on what is in the commission agreement.

I’m going to go out on a limb here and assume that the commission agreement in your “hypothetical” lacks any specific definition of “exclusivity.” Given the almost visceral fear in the arts industry of any contractual terms longer than a postage stamp, this is a reasonable assumption. That being the case, then the artist or ensemble only has exclusivity with regard to the work exactly as written and the composer is free to make re-orchestrations, variations, derivations, and arrangements and allow other artists to perform them. However, the fact that the composer is free to do so, does not necessarily mean that it is advisable.

It’s an equally reasonable assumption that the commissioner, rightly or wrongly, presumed that the exclusive right for the artist or ensemble to perform the work inherently included anything that sounded like the work. Admittedly, the commissioner should never have entered into a contract, much less allowed money to change hands, based on a presumption. However, taking advantage of either a misplaced presumption or even a contractual oversight or will not only serve to poison the composer’s reputation for future commissions, but add a significant debt to the composer’s karma bank. In short, my contractual analysis notwithstanding, I would strongly urge the composer to discuss his opportunity to expand the work with the artist and the commissioner before he or she starts heading for the twinkie stand.

________________________________________________________________

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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:artist, Brian Taylor, commissions, composer, contract, contractual terms, exclusivity, Goldstein, music, orchestra, orchestrations, permission, Variations
Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings | Comments Closed

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Rattle Sabers, Not Contracts

Too Fast and Furious To Get A Visa!

Gosh, That Sounds Familiar!

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