By Brian Taylor Goldstein, Esq. Dear Law and Disorder: I have read your clearly stated articles about mechanical use and rights. What about “fair use”? Aren’t there specific scenarios where permission is not needed to use a recording of someone else’s music? Beware of what you ask. You are about to open a box whereupon a thousand nasties will fly out! Now that you have been duly warned…. Copyright Law gives the owner of a copyright the exclusive right to perform, edit, arrange, or reproduce a protected work in copies or recordings, as well as the exclusive right to authorize others to do so. Anyone who copies, performs, or records a protected work without the copyright owner’s permission, even including small excerpts, is guilty of copyright infringement. Fair Use is a legal doctrine whereby certain usages of a particular work “may” be considered permissible without the copyright owner’s permission, if the purpose for which the work was used is determined to be “fair”, such as criticism, comment, news reporting, teaching, scholarship, research, and parody. As the U.S. Copyright Act is intended, albeit arguably, to afford the maximum protection of copyright owners and the creators of protected works, it does not set forth specific usages that are inherently “fair.” Rather, the analysis and determination of what constitutes Fair Use is left entirely to a judge to decide in her or her sole discretion. In other words, should you decide to use any portion of a protected work without the owner’s permission, you won’t know whether your use is a permissible Fair Use or a prohibited infringement until after the copyright owner files a lawsuit claiming an infringement and everyone goes to court, makes arguments, and the judge decides. The only guidance given by the U.S. Copyright Act is the following four-part test which judges use in making the Fair Use analysis and determining whether or not a particular use is “fair”: (1) the purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. As you may imagine, the application of these factors is both highly fact specific and highly subjective. Any one factor can tip the balance for or against Fair Use. More significantly, just because one judge determines a specific usage to be Fair Use within a specific scenario does not mean that a different judge will determine that a similar usage will be Fair Use in a similar scenario. Determinations can, and do, change from judge to judge. Case law is filled with conflicting examples of recordings where one judge ruled that a specific usage of a melody was a parody (Fair Use) and another judge in another state said a similar use of a different melody was satire (not Fair Use). Similarly, judges have ruled the use of as little as thirty seconds to be an infringement and usage of entire works to be Fair Use. Essentially, this means that Fair Use is an exception, or defense, to a claim of infringement, not a right in and of itself. To be fair, there are many legal scholars who would argue, correctly, that Fair Use is not a mere defense, but is, in fact, an important right that balances copyright law with the First Amendment and that the current system gives far too much power to wealthy copyright owners who can use the mere threat of lawsuits to quash any usage of their works, even usage that might legitimately constitute Fair Use. I don’t necessarily disagree with this position. However, it’s more aspirational than reflective of the current realities that you and I have to deal with. Until Congress comes up with better guidelines (and the likelihood that Congress can “come up” with much of anything these days is slim), we are stuck with the current system and all its inherent flaws and inconsistencies. Despite the distinctions between Fair Use and infringement being uncertain and difficult to define, there are, nonetheless, a few certainties which you can depend upon: There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledgement of the source of the copyrighted material does not constitute Fair Use and is not a substitute for obtaining permission where permission is required. Just because something is used by a non-profit and/or used for “education” does not mean its “fair.” Materials you find on the Internet is neither inherently public domain nor Fair Use. Just because you do not sell anything, does not make your use of someone else’s work Fair Use. At the very least, when determining whether or not using someone else’s work without permission might be Fair Use, take only the smallest amount of a copyrighted work necessary to accomplish your goal of criticism, comment, news reporting, teaching, scholarship, research, and/or parody. As a general rule, the more you take, the less likely your use will be considered “fair.” It is also reasonable to assume that if you are using any part of a copyrighted work for promoting or marketing your services or performances, or your organization’s services or performances, even if no copies are being sold, it probably IS NOT fair use. Of course, the safest course is always to get permission from the copyright owner before using copyrighted material. __________________________________________________________________ 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!
Posts Tagged ‘Goldstein’
New I-94 Process for Artists Touring the United States
Wednesday, May 22nd, 2013By 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!
Board Term Limits–The Kindest Cut of All?
Wednesday, May 15th, 2013By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
We are a small non-profit that runs a performing arts center. In up dating our by-laws, its been recommended that we establish term limits for our directors and officers, as well as a formal nominating committee. Do we really need such formalities? We’re very small and don’t have any other committees. Can’t the board itself select its own members and officers? And it seems a mistake to force directors to leave when they are willing to continue to serve on our board. What do you recommend to your clients?
While I am a strong advocate of fixed terms, I never recommend term limits for board members. Why? Because among the most challenging aspects of running a successful non-profit is finding and keeping healthy board members who, whether through wealth, work, or wisdom (or a rare combination of all three), contribute to the success and productivity of the organization. Once you are lucky enough to find then, the last thing you want to do is force them to leave! However, at the same time, you need to have a mechanism through which malignant board members can be removed. Such members, if left to metastasize, can quickly chase all the healthy ones away, burn out the staff, and poison the entire operation. Fixed terms without term limits provide you with the best of both worlds.
Let’s say, for example, that the by-laws provide that each board member serves a term of 2 years. At the end of each board member’s term, the nominating committee is required to review the board member and recommend either that the board member be invited to serve another term or be invited to exit. By having terms, but no term limits, there is no limit to how many terms a board member can serve, but there is also a fixed time after which every board member’s service can be reviewed. While you can pick any term length you want, I usually recommend no longer than 2 – 3 year terms for board membership. (Anything longer and you start losing the effectiveness of early detection and prevention!) There are also ways to stagger terms so that not everyone on the board is up for renewal at the same time.
Term limits for officers, on the other hand, can be more appropriate. Why? Because with no term limit, even a beloved president or board chair can quickly become a feared dictator that no one wants to cross, or, just as worse, a benevolent, but ineffective leader who spurns all attempts at growth or change. At the end of the president’s term, he or she can still serve on the board, but no longer gets to wield the mace of supreme authority. Also, in my experience, I have also found that the people you most want to serve as board president or chair will be those who do not want to serve more than a year whereas those you want to avoid are those who are looking for a life-time appointment.
As for whether or not you need to have a formal nominating committee, its a recommended practice to have the formality of a separate nominating committee—if not at first, then certainly as your board gets bigger. The nominating committee does not make the actual decisions, but, rather, makes recommendations to the board of whether or not to ask existing board members to renew their terms, as well as reviews and makes recommendations for the nomination of new board members. While the board is always able to accept or decline such recommendations, having a nominating committee allows a forum for such discussions to be “hashed out” other than in a full board meeting. This has the advantage of avoiding potentially awkward situations. First, imagine a scenario where a board member has nominated a “close friend” to serve on the board, but who may not be a good choice for the board. Having such a frank discussion is easier “in committee” than in the presence of the board member. Similarly, when reviewing the renewal of existing board members, its usually easier to have a more open and honest assessment, including key staff input, without having the entire board present. Like all committee work, its also a more efficient use of the board’s time to have committees make recommendations and reports rather than bog down the entire board with every decision. Lastly, a separate nominating committee can potentially prevent a small board from evolving into a dictatorship where only a few members dominate everything.
By-laws, like strategic plans and business plans, are not commandments fixed in stone, but, rather, should be approached as living, breathing, and malleable tools that provide structure as well as flexibility. When thinking of by-laws, you not only need to think of current operations, but creating mechanisms for growth. Even though your board may now be small, you want think big. Similarly, even though your board may currently be one big happy family, you want to think of the future when, like all families, everyone inevitably starts to get one everyone else’s nerves.
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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!
Student Visas: A School for Scandal?
Wednesday, May 8th, 2013By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
May a non-resident alien (Russian) musician here for an advance graduate school degree on an F-1 visa be paid for playing some off-campus recitals? Are they considered “Curricular Practical Training” which is supposed to be allowed, if approved by the Designated School Official? (Of course, 30% of the gross fee would have to be withheld unless a CWA is obtained.) Thanks for your advice!
A lot of schools, universities, and conservatories are all too happy to accept foreign students without really explaining that their ability to “work” in the US during their studies, much less remain long enough after graduation to establish careers in the US, is very limited and restrictive. (Remember, as it applies to artists, the twisted tomes of US immigration law define “work” as any performance in front of an audience regardless of whether or not tickets are sold or the artist is paid.)
While obtaining authorization for a foreign student to perform concerts and recitals on-campus is fairly simple, performing concerts and recitals off-campus can be a bit much trickier. One of the ways foreign students can be granted authorization to perform concerts and recitals off campus is to be approved for Practical Training. Foreign students are eligible for Practical Training once they have been enrolled for at least one academic year (nine months). There are two types of Practical Training: Curricular Practical Training (CPT) and Optional Practical Training (OPT).
CPT includes programs that are an “integral part of an established curriculum.” That is, the off-campus concerts and performances must be associated with the school’s established curriculum and must be an integral part of the student’s degree program. While it is completely within the discretion of the school to determine what qualifies for CPT and what constitutes “an integral part of the student’s degree program,” CPT programs are typically listed in the school’s course catalog with the number of credits included and the name of a responsibility faculty member. CPT programs typically include work/study, internships, or any other type of required internship or practical performance experience which the school believes is necessary for the student’s degree or course of study.
OPT, by contrast, is not tied to the curriculum (though it is supposed to be “related” to the student’s field of study) and can be used for up to a year full time (two years part time) on campus or off campus. OPT can take place either before graduation or in the year following graduation. OPT that takes place before graduation can only be used for up to 20 hours per week during the school year (though full time work is permitted during holidays and vacation periods if the student applies). After graduation, the employment can be full-time. Post-graduation OPT must be completed within 14 months of the student’s graduation. A student can have OPT for a maximum of twelve months after graduation.
A note of caution: while students may take an unlimited amount of Practical Training, if they take more than a year of CPT, they are barred from seeking OPT. This can be critical because the OPT may be a student’s only opportunity to perform professional engagements in the US after graduation. As USCIS discourages students from switching easily from F-1 classification to O-1 classification, any hope of doing so usually rests with what the student is able to do during their year of post-graduation OPT. Total CPT up to 364 days or less will not result in the loss of OPT. However, part time work using CPT for more than a year has been deemed to result in the loss of eligibility for OPT. In short, avoiding the loss of OPT eligibility requires both good record keeping of the time spent performing on CPT as well as a lot of math!
In your case, assuming the Designated School Official (DSO) approves the student’s request to perform the off-campus recitals, the DSO will enter the information in SEVIS and print out an I-20 with the CPT authorization for the student. The DSO is required to sign and date the I-20 prior to returning it to the student. While no employment authorization document from USCIS is needed for curricular practical training, the student may not begin work using CPT until getting the endorsed I-20.
So long as a student is approved for either CPT or OPT, then, yes, the student can be paid. However, while your willingness to acknowledge US tax-withholding obligations is both rare and commendable, it may be premature. First, Russians belong to a small list of countries from whom no withholding is required because all money earned by Russians nationals in the US is tax exempt. However, this changes if the Russian is considered a “resident alien” for tax purposes. Second, just because a student (or anyone, for that matter) is a “non-resident” for immigration purposes, doesn’t mean they are a “non-resident” for tax purposes. It all depends on how much time they spend in the US each year. As with all foreign artist tax matters, it’s a very fact specific analysis. Assuming your student in approved for CPT, then I would strongly recommend you consult with an expert in foreign artist taxation to determine the student’s specific withholding and tax obligations.
__________________________________________________________________
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!
When To Negotiate A Contract
Tuesday, April 30th, 2013By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
A successful duo I represent has recorded a CD which is being released by a record company. Although the artist made attempts to obtain a contract, because of time restraints, according to the record company, it was only possible to give a contract AFTER the recording was made. The terms include exclusivity universally for several-year options, and although the company paid for the recording and manufacture of the cd, these costs will come out of the royalties. The company controls the cd universally with power of attorney from the artists. To obtain copies, the artists buy the cd at a reduced price. The company insists these are normal terms which are standard practice and always given after the recording is made. This is news to me. Can this be true?
In my ideal world, among other things on my wish list, every artist, manager, agent, presenter, producer, arts lawyer, and arts administrator would have a sign above their desks stating: “Nothing is Standard!” While it is true that there are many terms and practices which are more common than others and while it is also true that certain financial arrangements and commitments will necessarily lend themselves to certain expectations in return, everything is negotiable. This does not, of course, mean that you will get everything you want. Rather, depending on the negotiating strengths of the parties, everyone is free to ask and propose whatever they want. Think outside the box. Get creative.
However, while creative proposals may be limitless, the time to propose them is not. The time to negotiate is before services are rendered, significant time is spent, or money changes hands. Thus, the real issue at the heart of your question is your comment that “because of time restraints, according to the record company, it was only possible to give a contract after the recording was made.” In my experience, I have yet to encounter a situation that was so dire and immediate that at least some basic understandings of key terms could not be mutually agreed upon ahead of time.
Sadly, it’s not uncommon in the arts and entertainment world for the artistic aspects of a project to proceed on a completely separate track and pace from the administrative and business details. New works are created or composed before the commission agreements are in place. Recordings are made before the recording contracts are signed. Engagements are scheduled and sometimes even performed with no engagement agreements. I’ve even known artists to collaborate with one another and then try, almost always unsuccessfully, to negotiate a collaboration agreement after the work has been optioned for production.
Of course, some of this is understandable. Contractual terms can be confusing, especially when the parties are unfamiliar with business practices and terminology. Also, it can take such considerable effort just to coordinate the funding, schedules, and parties that no time is left for negotiating contractual terms. Also, its not uncommon for different individuals and departments within a large organization or institution to address artistic planning and scheduling separate and apart from contractual and business planning without communicating or coordinating with one another. But, whatever the reason, this phenomenon is unfortunate because it makes it much harder to negotiate favorable terms or, at the very least, to manage expectations, avoid potential conflicts, and make informed decisions.
The biggest—and, often, only—power an artist has in a negotiation is the power of “no”—that is, the power to say: “I’d rather pause for a moment, even it means losing the deal or opportunity, than enter blindly into a relationship where I may have no control over my creative services.” Of course, it can be equally bad for record companies, producers, and presenters who can find themselves investing both time and money without getting the rights or return they anticipated. While saying “no” or “stop” can sometimes cause a lost opportunity, the alternative is a bad or unfavorable deal that, ultimately, could prove worse.
Without a doubt, legitimate practicalities, including artist availability and opportunity costs, can often make it difficult for a formal contract to be drafted up in advance of every occasion. However, there is rarely a legitimate reason why parties cannot at least mutually agree upon basic terms, with a more formal agreement to follow. Remember, a contract is a written memorialization of an existing agreement. Until an agreement exists, there is nothing to memorialize. Without terms agreed upon ahead of time, there is no contract to draft.
In any situation, if time is of the essence, never wait for the other party to provide a contract or propose terms. You may need to make the first move. In your situation, if the record company refused to provide a contract, then your artists could have proposed their own terms or set out their own requirements for proceeding with the recording. If your artists are truly as “successful” as you indicate then chances are the record company would have agreed to an outline of reasonable terms. When you say that your artists “made attempts”, that should have included writing:
“Dear Record Company, while we are very excited about the prospect of working together, unless we can arrive at a mutual agreement of some basic terms, we will be unable to proceed with the recording as scheduled. Thus, we are proposing the following…..”
Contractual terms do not, and should not be, a confusing quagmire of legalese. Write your proposals in clear, understandable language. The key is to be detailed, not convoluted. As even the most experienced artist managers can find themselves daunted by the prospect of proposing terms for recording contracts and other multi-media deals and transactions, you would be wise to bring in some specialized help.
Ultimately, in your situation, if the record company paid for the recording without negotiating the contract, then they took the risk that no agreement would be reached and that your artists could simply refuse to permit the recordings to be released. That would leave the recording company with a worthless product. Of course, your artists wouldn’t own recordings they didn’t pay for, so they would have nothing to show for their time. Everyone loses. Hopefully, the potential of mutual self-destruction will force the parties into coming up with the reasonable compromise that should have been agreed to ahead of time.
__________________________________________________________________
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!
A Visa Substitution Requires an Artist to Substitute
Wednesday, April 17th, 2013By 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
________________________________________________________________
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!
Using Existing Recordings–Not So Fast!
Wednesday, April 10th, 2013By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
A few weeks ago you wrote a great article about how to obtain a mechanical license when someone wants to record music. But what about using a recording that already exists? We would like to promote an upcoming concert at our venue by putting some recordings of the artist on our website. Since the artist gave us the recordings, are we ok?
Thanks…and no, you may not be ok.
Any time you want to use an existing recording of a composition, whether to put on your website, or as a soundtrack to a film or video, you will need to get permission (aka “a license)” from the composer (which often means contacting the composer’s publisher) as well as permission (aka “a license”) from the owner of the recording (which is often a record label.) That’s right, you may need to get two separate licenses! Why? Because copyright law creates a separate copyright in compositions and a separate copyright in the recording of a composition.
Just because an artist or an artist’s manager gives you a recording and gives you permission to use that recording, doesn’t mean that the artist owns the recording or has the rights to give. Even if it is a recording of the artist’s own original composition or if the composition itself is in the public domain, the artist may not own the recording. In which case, the artist cannot give you permission to use it, much less the artist’s manager.
Shortly after I posted the earlier blog you mentioned (The Mechanics of Mechanical Licenses, March 6, 2013), Peter Christ of Crystal Records Inc. (http://www.crystalrecords.com) sent me an email which exactly and accurately addressed this issue. He graciously agreed to let me post it here:
Your explanation was very clear and should help those who want to record music that is not public domain. However, it does not address the situation of a person who wants to use a recording already made, and on a record label, for their web site or their movie or other background music use. It should be made clear that the publisher needs to be contacted and ALSO the record label or other copyright owner of the recorded music.
We sometimes find out that our copyrighted recordings are being used as background music for films or on someone’s web site. This is not legal without our permission, and when it is discovered, the legal expenses can be very high for the perpetrator.
Some people want to do it right, and we frequently get requests for license to use our recordings for films, web, etc. We always appreciate that someone is honest and knowledgeable enough to request a license. However, in most cases, they do not realize they need a license both from the record company and from the publisher of the music. And in many cases, the music was recorded under an AFM contract and additional payment must be made through the union to the musicians on the recording. It should be pointed out that even if the music itself is public domain, the recording is most likely not, so permission from the record company, and possibly the union, is definitely needed. So the two minutes or so they want to use can get quite expensive.
Thank you for your excellent column in Musical America.
See, I don’t make this stuff up just to make your lives complicated! Bottom line, when it comes to music rights there are three rules: never assume—always ask—and know who to ask.
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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!
Independent Contractors or Employees: What’s In A Name?
Wednesday, April 3rd, 2013By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
I hire musicians to perform, with me. Are they employees or independent contractors? I do not deduct taxes from what I pay them. Should I also make them sign a contract stating that they are independent contractors?
Contrary to what many believe, the distinction between who is an independent contractor as opposed to an employee is not as simple as merely making them responsible for their own taxes (and issuing them a 1099) or making them sign a contract or other document in which they affirm that they are an independent contractor. Like many legal relationships in the arts, “titles”, while not entirely irrelevant, do not in and of themselves carry any legal significance. Instead, determining whether a hired musician (or anyone you hire to provide services for you) is an employee or an independent contract requires an analysis of both state and federal regulations.
A person is an independent contractor only when free from control and direction in the performance of their services. As independent contractors are not covered by unemployment insurance laws, labor standards, or safety and health regulations, each state, as well as the federal government, have established various “factors” concerning the nature of the relationship between the parties which are used to determine whether or not a person is an employee or an independent contractor. These factors include how a person is paid, the amount of control you have over them, where their services are performed, how their services are performed, whether or not they are part-time or full-time, and even whether or not the person you are hiring is “incorporated” as a business or merely uses a “dba” and is a sole proprietor. All factors concerning the relationship between the two parties must be taken into consideration. No one single factor is controlling, nor do all factors need to be present to establish the nature of the relationship.
Not surprisingly, the “factors” can differ from state-to-state, with some states applying a more liberal analysis than others. Whereas, in some states, its almost impossible for anyone to hire an individual as an independent contractor unless the individual is incorporated as a C-corporation, S-corporation, or a limited liability company, other states afford more discretion to the employer to determine how to classify the people they hire. And the federal government has its own set of factors and guidelines. As a result, its not uncommon for the same person to be classified as an independent contractor for federal purposes (IRS, US Department of Labor, etc.) and an employee for purposes of state unemployment law and state taxes.
While all the various factors must be considered, in almost all cases the most significant factor is whether the party contracting for the services exercises, or has the right to exercise, supervision, direction or control over someone they hire. In the case of musicians and other performers: do you hire them to show up and perform their own music in whatever manner they want? Or do you direct them? Do you require them to attend rehearsals? Can they wear whatever they want or do you require specific costumes or clothing? In general, musicians or other performers who are paid to perform and are told/directed what to perform, how to perform it, where to perform, and what to wear are almost always considered “employees”, if not by the federal government, then by most state governments.
The only way to answer your specific question is to apply the applicable state and federal factors and guidelines to your specific circumstances. However, the New York State Department of Labor actually has specific guidelines and factors for determining whether performers are employees or independent contractors. You can find them at http://www.labor.ny.gov/formsdocs/ui/ia318.17.pdf Whether or not you are in New York, this is a good place to start.
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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!
Does God Serve On Their Board?
Wednesday, March 20th, 2013By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
We booked one of our artists to perform at a non-profit venue. The booking agreement was signed by all parties. We just received a phone call from the venue that their board met last night and decided unanimously to cancel the engagement due to poor ticket sales. The contract states that our artist is to be paid a cancellation fee if the date is cancelled for any reason except an act of God. However, the venue is claiming that this is an act of god and they do not have to pay. Any suggestions?
While I am familiar with many board chairs and presidents who erroneously believe they rule with omnipotent powers, their decisions do not constitute “Acts of God.” Moreover, unless there is a specific definition of “Acts of God” in a booking contract that expressly states that ticket sales are subject to divine will and authority or that a recognized deity from an established pantheon is in charge of marketing and sales, poor ticket sales are also not “Acts of God.”
Contrary to myth, non-profits are not exempt from the laws and legal obligations which govern all businesses, for-profit or otherwise. They must license copyrighted materials, pay their employees and independent contractors, and honor contractual obligations just like everyone else. In this case, you would appear to have a fairly straightforward breach of contract situation whereby the venue is contractually obligated to pay your artist the agreed upon cancellation fee.
Regardless of the legal merits of your claim, your first course of action should not be threats or demands. Instead, explore every possibility of a creative and mutually reasonable solution. Non-profits are under a considerable amount of pressure and, more often than not, in situations such as these, they are acting out of fear and self-survival rather than any nefarious intent. Can you reschedule the date? Can you offer to provide additional marketing materials or suggestions? Are there any expenses or costs which can be reduced? Are there any other presenters in the area who might be willing to partner with the venue and share expenses? Assuming your venue is unwilling to budge or consider alternatives, then stating the legal merits of the situation and suggesting mediation or arbitration would certainly be appropriate.
Ultimately, this may be one of those rare instances when filing legal action may be warranted. If your booking agreement does not provide for attorneys fees and costs in the event of a lawsuit, and if the engagement fee is not substantial enough to warrant the time and aggravation, you may be able to file a small claims action in lieu of a more formal trial. Sometimes, merely filing a lawsuit or claim is enough to bring them to the bargaining table. However, always remember that winning a lawsuit doesn’t mean you or your artist will ever see a dime. If the venue refuses to pay, you’ll have to pursue them further with bank liens and property attachments until they either pay or file bankruptcy or close entirely. While not resulting in any damages for you or your artist, this can often be its own form of divine retribution upon the venue.
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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!
The Mechanics of Mechanical Licenses
Wednesday, March 6th, 2013By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
Does all music (if not in public domain) require a mechanical license to be recorded? I don’t quite understand when it is needed and when a person could pay a statutory fee and move forward without permission.
Yes, anytime you want to make an audio recording (whether you want to go into a studio or record live performance), you must obtain a “Mechanical License” from the publisher or the copyright owner(s) of the song or music you wish to record. A “Mechanical License” is the permission issued to a licensee (typically a record company or someone recording a cover song for their independent release) granting the licensee the right (ie: permission) to make and distribute an audio recording of a specific composition at an agreed-upon fee, per unit manufactured and distributed.
If the music has never been recorded and publicly distributed before and yours will be the first recording, then you will need to seek a Mechanical License directly from the publisher or copyright owner(s) who are free either to refuse to grant you the license or charge you whatever license fee they want. However, once a musical composition has been recorded and publicly distributed, the U.S. Copyright Act provides for a “Compulsory Mechanical License” to anyone who wants to record and distribute the work provided certain statutory requirements are met: (1) You have to provide notice to the publisher or copyright owner(s) of your intent to claim a Compulsory Mechanical License; and (2) you must pay the applicable Compulsory Mechanical License Fee set forth in the Copyright Act. The Compulsory Mechanical License Fees are set by the U.S. Copyright Office and are updated every few years. Currently, the rate is 9.1 cents or 1.75 cents per minute of playing time or fraction thereof, whichever is greater, per united manufactured and distributed. (Distribution includes both physical copies (ie: CDs) as well as full downloads. Different rates apply for limited-use downloads, ringtones, on-demand streaming.) Provided these requirements are met, the Mechanical License must be granted…the publisher or copyright owner(s) cannot refuse…that’s why it’s “compulsory.”
However, before you start drafting your Grammy-Award acceptance speech, there are few restrictions to keep in mind:
1) Compulsory Mechanical licenses do not apply to dramatic works, such as operas, film soundtracks, ballet scores and Broadway medleys. If you want to record one of these, you will need to seek the Mechanical License directly from the publisher or copyright owner(s) who are free to refuse or charge whatever they like.
2) Compulsory Mechanical licenses are available for audio-only recordings only. If you are making an audio-visual recording, such as a DVD or video, or anything involving visual images, you will need to obtain a “Synchronization License” directly from the publisher or copyright owner(s) who are free to refuse or charge whatever they like.
Compulsory Mechanical Licenses can be obtained through the Harry Fox Agency (www.harryfox.com), which represents most U.S. publishers. Mechanical licenses can also be negotiated directly with the publisher or copyright owner(s).
_________________________________________________________________
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!