Posts Tagged ‘work’

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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

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.

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

Can They Dance Away With My Copyright?

Tuesday, October 23rd, 2012

By Brian Taylor Goldstein, Esq.

I own the video footage of a performance by a dance company. Recently, I learned that another choreographer purchased a license from the dance company to recreate and perform the same work. However, they used a copy of my video to help in recreating the choreography. In other words, they copied the performance which was on my video, but no one asked my permission. Aren’t I entitled to a royalty or a fee? How are the choreography and the video separable?  The only way they could get the choreography was through my video.”

Copyright protects original, creative works that are fixed in some tangible medium. For example, when a playwright creates a script, he or she obtains a copyright in the play. If someone else later videotapes a performance of the play, the videographer may obtain a copyright in the video and, with it, the right to control who can make copies of the video or broadcast the video or sell the video. However, the playwright still owns all rights to the play itself. If another theater wants to produce the play, they only need to seek permission of the playwright–even if they use the video as a reference, so long as they don’t make a “physical” copy of the video itself. It’s the same with choreography. Choreographic works become protected by copyright when either the chorography is written down in choreographic notes or videotaped. However, the videotape or the choreography is a separate copyright from the choreography itself.

In your case, the fact that the other company may have used your video to “learn” and remount the choreography doesn’t mean they necessarily copied your video. You own the video footage. That’s your copyright and no one can make a physical copy of the video without your permission. However, the original dance company and/or the choreographer who created the work own the performance rights.

Of course, what I have given you is a copyright analysis. The real question I have is: what were the terms of your agreement with the dance company when you made the video? Did you even have a contract? Issues such as performance rights, licensing, and permissions—as well as many others, including credit, ownership, control, and exclusivity—are all issues that can be agreed upon in a contract. Not have a contract, and relying solely on copyright laws and statutes, is like dying without a will. If you wanted to receive a royalty every time the work was performed, you could have asked for that, just as the dance company could have asked for a royalty every time you sold or licensed a copy of the video. When it comes to avoiding miscommunications and disappointments, nothing beats a piece of paper…correction, nothing beats a piece of paper with lots of details!

_________________________________________________________________

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 Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Recordings | 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!

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

When You’re Right, You’re Right!

Wednesday, September 19th, 2012

By Brian Taylor Goldstein

I wonder if you would mind giving me some advice on a visa situation with one of my artists. To summarise, I represent a British artist who was commissioned to write a 7 minute piece for a university in the United States which will be premiered in 2013. The artist will be traveling to the United States around the premiere for various events, including attending concerts and also one or two workshops led by the artist. Primarily, the new piece will also be conducted by the artist himself. In the past, this artist has always held an O-1 visa to work in the United States. However, the university is insisting that, because it is a university, the artist only needs a visitor visa and they are refusing to obtain an O-1 visa for him. The university is not only paying the artist for the commission (which has already been settled through his publishers) but for his visit and performance as a conductor. Therefore, I should think we need a visa and that it’s not really possible for him to travel on the visa waiver scheme – is that correct? If so, am I right in thinking that he really should get an o-1 visa as he always has before?

Because so many legal questions involve the application of broad legal concepts to issues of specificity and nuance, its customary to qualify certain answers by saying “it depends.” That is not the case here. Based on the details you have provided, you have made this extremely easy for me: you are correct. The university is wrong. Plain and simple.

Yes, he needs an O-1 visa. No, he cannot enter and perform on the visa waiver scheme. The visa waiver program allows citizens of certain countries (including the UK) to enter the US as visitors solely using their passports and without the need of obtaining an actual visitor visa. However, they are must abide by the same rules and restrictions applicable to all visitors—namely, no work. For artists, work is not defined by payment. ANY performance of any kind or nature, even if no tickets are sold and the artist receives no fee, is, nonetheless, defined as “work” While there are, indeed, certain exceptions, they are very narrow and limited and, in this case, are inapplicable. I suspect the university is relying on a narrow exception that permits individuals to enter the US as visitors in order to give a lecture or demonstration at an educational institution and receive travel reimbursement and an honorarium. However, that is not the case here. Your artist has clearly been “hired” to conduct. The fact that he is conducting an orchestra at a university does not qualify for a visa exception any more than the fact that music is being performed at a university exempts the need for licensing it (though many erroneously believe this to be the case!). The fact that the university may have convinced other artists to perform for them without the proper visa just means these artists did not get caught. Your artist may not be so lucky.

I would direct the university to www.artistsfromabroad.org. Also, Musical America is about to unveil a special visa issue which will be jammed packed full of insights and tips on bringing foreign artists into the US. 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 Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Visas | Comments Closed

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