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• A National Ban on Performance Exclusivity Clauses   • Posting Recordings on Websites • Artist Visa News, Nausea & Updates  • Your Contract Playlist    

Monday, June 24th, 2024

LAW & DISORDER

Performing Arts Division

June 25, 2024  

INSIDE THIS ISSUE:

• A National Ban on Performance Exclusivity Clauses  

• Posting Recordings on Websites

• Artist Visa News, Nausea & Updates 

• Your Contract Playlist    

 

Legal Issue of the Month:

Will a New National Ban on Non-Compete Agreements Also Apply to Performance Exclusivity Clauses? 

 

 

You may recall (or not, that’s ok, too) that in our last newsletter we discussed that on April 23, 2024, the Federal Trade Commission (FTC) issued a nation-wide ruling banning non-compete clauses in all employment contracts, regardless whether an individual is hired as an actual “employee” or as an independent contractor, paid or unpaid, an intern, or a sub-contractor hired to provide service to another party’s client or customer. You can read the announcement HERE.

Further review and analysis have shown that this new ruling, should it go into effect, will also prohibit venues and presenters from including any language in their engagement agreements restricting or prohibiting where an artist can perform before or after an artist’s performance. In other words, should the Grunion Run Performing Arts Center engage the Willy Tugger Jazz Band, they could not prohibit the band from performing two days later at the Annual Grunion Run Mayonnaise Festival where admission is free. Of course, regardless of the future contractual enforceability of a performance exclusivity clause, any artist who actually did this would be hammering a nail deep into the coffin of their touring career. 

Whilst the official effective date has yet to be announced, unless the new regulation is pre-empted by a lawsuit or other judicial action, then the ruling will likely go into effect sometime in Fall 2024.

 

 

 

Dear Law and Disorder:

Actual questions we get asked and the answers people actually don’t want

“With thanks, your friendly, neighbourhood car thief”

Dear Law & Disorder:

I want to post a video on my website that I found on the internet that would be perfect for my new project. I will give full credit to the musician, including the musician’s original link, would this be legal? And can you please specify on what full credit means.

A “copyright” is literally the right to make copies. A copyright “infringement” is when you make a copy of something without the owner’s permission. Almost everything you can find on the internet (photos, images, videos, text, etc.) is someone else’s property. Part of the challenge of understanding digital rights is that the ease with which we can download and copy materials on the internet tends to make us forget that copying any materials without permission is still copyright infringement. Without question, many people post pictures, videos, and other materials and are more than happy to have others repost and share them; but that decision is entirely up to the person who owns the materials. In other words, just because a car is parked on the street, doesn’t mean it’s free for the taking. As for giving “full credit,” that’s like stealing a car, but leaving a thank you note on the owner’s door. It doesn’t make it any less a crime.

If you want to get actual permission to post a video, photograph, or any other copyrighted material on your website, then you need to get permission (aka “a license”) from the owner—which may or may not be the artist. The better option would be for you to post a link to the video rather than post the video itself. In other words, you would be inviting your readers to go to YouTube or the artist’s own website to view the video. This way, the owner can control whether or not they want the video to be shared.

And now, the part you’ve all been waiting for……

Artist Visa News, Nausea

& Updates

 

Most of you know by now that between December 2023 and April 2024, USCIS implemented a number of new filing fees and policies purportedly designed to “maintain adequate service.” Please Note: I did not make that part up. This is direct quote from the preamble to the Final Rule issued by USCIS on January 31, 2024 in which it sets out the goals of its new rules and policies: Not to “improve service” or even “increase processing times,” but to aspire to the lofty and inspired goal of “maintain adequate service.” You can read it for yourself HERE. That’s only slightly less disingenuous than a mobile service touting a 6G upgrade of two tin cans and piece of string.

USCIS, far from its delusions of adequacy, instead has taken an already broken system, smashed it into more pieces, glued it back together with spit and crushed graham crackers, and tossed it into a soggy carboard box of berserk cane toads. After two months in the toad box, here’s where we are:

 

1. Standard Processing Times Are Getting Slower 

Processing times are getting longer, slower, and more intense, which is good news only for those of you who fantasize about USCIS visa examiners. Though we have seen a few instances of standard processed petitions taking 4 months or longer, most seem to be taking 2 – 4 months from the date of filing. Whilst the Vermont Service Center appears to be processing more quickly than the California Service, as USCIS is no longer assigning petitions to service centers based on jurisdiction, there is no way to know where your petition will wind up or exactly how long it will take to be processed.

Premium Processing appears to be taking 7 – 15 business days, with, again, Vermont processing more quickly than California.

2. USCIS Is Losing P Petitions

For those of you unfortunately forced to file multiple P petition to cover large groups, such as four P-1 Petitions to cover an orchestra of 80 musicians, USCIS is splitting them up and sending them to different service centers who adjudicate them at different times. Even when a single P-1 Petition is filed concurrently with a single P-1S Petition or an O-1 Petition is filed with an O-2 Petition, USCIS is splitting them up and sending them to different examiners at different service centers. In the interest of further proving that they aren’t even competent enough to trust with scissors, USCIS is also losing a few along the way. In one particular case, three P-1 Petitions for a large group were filed concurrently with premium processing. USCIS approved 2 and lost 1. Eventually, they found it 30 days after it had been filed, emailed the receipt notice with a thoughtful note saying, “thanks for your patience,” and approved it 2 days later. (Yes, USCIS has to refund the premium processing fee for that one.) So, allow even more time when filing petitions for large groups.

TIP: If you do not receive an I-979 Receipt Notice for a filed petition, then go to your bank and see if USCIS cashed the filing fee check. If so, on the back of the cancelled check will be the receipt number for the petition. You can then use this to deride them when they try to claim it was never filed. 

3. USCIS Is Improperly Rejecting Petitions

There have been numerous instances reported of USCIS rejecting petitions for incorrect filing fees even where the filing fees were correct. This appears to be due to the fact the separating the total filing fee of a petition into multiple different fees based on the business status of the petitioner has not worked as seamlessly as they had hoped. USCIS reports that this is a “training issue,” which presumably means this will improve with rolled newspaper and better treats.

TIP: If you are a non-profit of an employer of 1 – 25 employees, then be sure to address this in your cover letter and explain why you qualify for a reduced fee. Also remember to provide the appropriate documentation of your status.

REMINDER: To qualify as a “small employer” you must have at least 1 full-time employee on a payroll and from whose pay checks taxes are withheld. Otherwise, you are a “small business” or “self-employed” and must pay the maximum filing fees.

4. USCIS Is Issuing Barmier RFEs

USCIS has always been renowned for issuing tragically comical Requests for Evidence (RFEs) when it comes to displays of their obliviousness of anything that occurs on a stage—which, of course, always raises the question of whose idea it was to give them the final say on the casting and booking decisions of major opera companies, theatres, and presenters in the first place. Nonetheless, unattended USCIS Examiners have recently been burrowing into new depths of obtusity in their soiled sand box and issuing more preposterous RFEs. In particular, we have seen a disturbing increase in RFEs for P-1S (Essential Support Staff) Petitions in which they are asking for individual employment contracts for each person with specific employment terms and conditions, more information on why the services provided are necessary for a performance, and why the group can’t just hire US workers to do the same thing. To pluck just a few pearls:

  • What do stage managers do and why are they necessary for a performance?
  • Why can’t an orchestra engage a US-based Orchestra Manager to manage their orchestra when they perform in the US?
  • If the group is performing in New York City, will the group’s lighting designer and stage technicians be providing their services at the same venue at the same time?

Other notable RFE’s we have seen over the last few months include USCIS contending that:

  • An “audience prize” given to an artist at a competition does not count as an “award” because he was selected by the audience and not by experts, critics, or judges in his field.
  • Competitions for “Young Artists” do not count as significant awards or competitions because young artists are only competing against other young artists. For such an award to be “significant”, the competition must include older artists.
  • An opera conductor is not in the same field as an orchestral conductor because one conducts orchestras and one conducts operas, thereby requiring two union consultation letters.
  • An artist performing at a festival cannot be a “lead and starring artist” if there are other artists also performing at the same festival. To be a “lead and starring artist,” the artist must be the only artist performing at the festival.

And my personal favourite: a request for “independent, third-party proof” of the formal name and full street address of Carnegie Hall, as well as proof that, just because the artist has been engaged to perform at Carnegie Hall they will physically be performing on-site.

Fortunately, all of these petitions were ultimately approved, but not without extra expense, lost time, and digging ever deeper into the repository of linguistic condescension in responding to the RFEs—including printing out Google Maps driving directions from the address of the California Service Center to the front door of Carnegie Hall.

TIP: Trying to explain or induce USCIS to appreciate the impact of their ineptness on the Performing Arts will produce only slightly less meaningful results than a zip log bag of toenail clippings. Rather, work around them. Know that they are extraordinarily paranoid, as well as painfully literal. Never explain or make them think. Give them what they want to know, regardless of how stupid or rudimentary it may seem, and in the simplest of terms possible. If what they want doesn’t exist, draft simple, specific documents just for USCIS that addresses the specific things they want to know.

 

Want To Listen To More About Contracts?

 

My friend and longtime client, Laura Colby, a performing arts manager based in New York City, hosts a podcast entitled The Middle Woman. In The Middle Woman, Laura discusses best practices for managing, touring, and presenting the performing arts from the lens of a working artist and shares her collected learnings with the new generation of performing arts professionals.

She recently invited me to join her in a discussion about contracts in the performing arts.

Here are the links to access the episode on Spotify, Amazon Music, Audible, and Apple Podcast.

Whilst it may or may not be the best thing to listen to before going to bed, it was a great discussion.

 

 

 

Deep Thoughts

 

“Remember, when you are dead, you do not know you are dead. It is only painful for others. The same applies when you are stupid.”

― Ricky Gervais

 

Send Us Your Questions! 

Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.

OFFICIAL LEGALESE:

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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

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Posted in Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Presenters, Uncategorized, Visas | Comments Closed

Contractual Effrontery; Not Paying Artists is a Crime!; How a Government Shutdown Will Impact US Artist Visas

Tuesday, September 26th, 2023

LAW & DISORDER

Performing Arts Division

September 27, 2023 

INSIDE THIS ISSUE:

• Contractual Effrontery  

• Not Paying Artists Is A Crime!

• How A Government Shutdown

Will Impact US Artist Visas 

 

Legal Issue of the Month:

Contractual Effrontery  

Recently, I was contacted by an agent regarding a new artist that was joining his roster. In response to receiving a copy of the agent’s managerial contract, the artist responded with a terse missive that they found the contract to be “unfriendly.” The artist complained that they were expecting a simple, written confirmation that the parties would be working in a mutual spirit of collaboration and partnership and not, as the artist opined, a “harshly written” and “aggressive” formal document with requirements, restrictions, terms, and conditions. The agent asked me to take a look at the contract.

I took a look. Whilst not a model of light-hearted whimsy, the contract contained the typically dry and prosy terms one would expect to find in an Artist/Agent contract: how commissions are calculated and paid; the agent’s booking territory and exclusivity rights; termination provisions; etc. Was it peppered with frippery and bagatelles? No. But neither did it hurl insults at the artist nor identify the contractual parties as “Manager (hereinafter referred to “He Who Must Be Obeyed”) and Artist (hereinafter referred to as “Scum”).” In short, there was nothing to find “unfriendly” or aggressive.

Make no mistake, I find it commendable that the artist actually read the contract. Indeed, given the fact that most in our industry avoid words and contracts as if reading anything that cannot fit on a post-it note will send their eyeballs exploding out their elbows, I was delighted. What is discouraging is that the artist took the contract as a personal affront rather than what it was: the agent’s proposal of the terms, definitions, and conditions that would define the “collaboration and partnership” between them. It was nothing more than an invitation for the artist to review the contract and respond with their own questions, clarifications, and proposals for alternative terms and conditions—though, in this case, the problem seems to have stemmed from the fact that the artist was anticipating no terms or conditions of any kind, presenter a deeper existential issue.  

The very core of any successful collaboration or partnership is making sure that all the parties are, in fact, working with the same playbook. And that’s the whole, entire, and sole point of a contract: that before any work is done, engagements booked, or music composed, the parties have exhausted every effort to root out unexpressed concerns and fears, unclog misconstrued conversations, and extract hidden expectations from the crevices of unspoken assumptions.

Whenever I am asked to review a contract, the first thing I do is ask my client to express their own understanding of what has already been discussed, outlined, or orally agreed upon. Then, I can draw back the covers to see how close or far apart the parties actually are. Discovering that the other party has expectations and assumptions that are contrary to your own makes them neither nefarious nor contemptible. It just means that you and they are not yet on the same page (both literally and figuratively) and that further conversations, clarifications, and discussions will be needed to assess whether or not to proceed with the relationship. However, if at the outset any reasonable proposal or question results in the other party clutching their pearls and gasping at such brazen impertinence, that is a good indication that any collaboration or partnership is not going to go well without an intervening therapist. 

Dear Law and Disorder:

Actual questions we get asked and the answers people actually don’t want

“Not Paying an Artist is a Crime!” 

Dear Law & Disorder:
Our company got a bad check from a non-profit venue for a performance we did. We called them and they sent us a new check, but that bounced, too. Now they won’t return our phone calls. Is there anything we can do?

I once had an artistic director of a dysfunctional non-profit tell me that, although they were unable to pay the money owed to an artist, the artist should be satisfied having already been paid ten-fold in the goodwill and joy they brought to the audience. Sadly, I have yet to find landlords and grocery stories willing to accept payment in goodwill and joy. 

Almost every state has a statute that allows a person who receives a bad check to sue the issuer of the check and not only receive two to three times the value of the check, but recover attorneys’ fees and court costs as well. In addition to suing the non-profit itself, most states will also allow you to sue the individual who signed the check even if they were acting as an officer, employee, board member, or volunteer of the non-profit. While it’s true that suing an organization that has no money is often a waste of your own time and money, it’s also a crime in most states to write a bad check. You will want to do some research on the laws in your particular state.

Regardless, your first step should never be to file a lawsuit or run to the police. Besides, both civil and criminal laws require some form of “intent” on the part of the issuer of the check. There is no liability for inadvertently writing a bad check or in situations where the check merely crossed with the available funds. If the mismanagement of a non-profit were a crime, most of the 2023/2024 season would be presented at the Rikers Island Centre for the Arts. If the non-profit is not returning your calls, try other forms of communication such as emails or even formal letters. If necessary, send letters to the Chairman of the Board or to individual board members reminding them of their potential exposure to personal as well as criminal liability. If they continue to ignore you or fail to make payment, then at least you will have written proof of their intent not to honour the check and then you can consider whether to contact a local attorney, file a claim in small claims court, or contact the local prosecutor’s office in the city or town where the venue is located. Regardless, do not, under any circumstances, post anything on social media in an effort to shame them into paying you. Whilst public shaming worked for the Puritans, it will backfire on you for a number of reasons.

 

Artist Visa News & Nausea 

• How A Government Shutdown Will Impact Artist Visas

In the fantastically remote and implausible event that the US Congress cannot cast aside the ponderous chains of party and ideological differences, sipping from the communal grail of public service thereby discarding their own personal goals and aspirations to rapturously ascend the alchemical mountain into the prima materia of the common good, and in so doing pass the spending bills necessary to keep the government open beyond midnight on October 1, 2023, then certain US government agencies will cease operations.

As USCIS is mostly funded by petition filing fees, they will continue to review visa petitions—albeit processing may slow due to outside contractors not being paid. However, depending on how long the shutdown lasts, certain US Consulates around the world could experience delays in being able to process visa applications or cease all but emergency operations. Even when the government re-opens, the resulting backlogs could see delays continue for a while. So, again, whilst an unlikely scenario in a highly functioning democracy that owes no apologies to King George III, one may want to plan for contingencies, nonetheless.

• New Edition of the I-129 Form

Starting November 1, 2023, USCIS will only accept the new 05/31/23 edition of the I-129 Form. They have made no changes to the form itself. They merely changed the date of the form. Whilst some may consider this pointless, I have found myself enjoying new depths of restful slumber cradled in the knowledge that the Department of Homeland Security is tireless in its efforts to ensure malicious hordes of foreign orchestras do not employ date compromised forms to breach our borders. Until November 1, 2023, you can continue to submit the old 11/02/22 edition, but you might as well start using the new edition now. You can find the edition date at the bottom of the page on the form and instructions. As a general rule, if you make a habit of always downloading the I-129 form directly from the USCIS website whenever you prepare a petition, you will always have the most current edition.

• Using Consultation Letters from Peer Groups instead of Unions

We have recently seen an uptick in USCIS issuing a Request for Evidence (RFE) in response to petitions in which the Petitioner has provided a consultation letter from an artist peer group (such as Opera America, Fractured Atlas, or the League of American Orchestras) as opposed to the applicable performing arts labour union (such as AFM, AGMA, or AGVA). Whilst the applicable USCIS regulations allow for consultation letters to come from unions OR peer groups, not all Examiners are able to find this on their Fisher Price Lil’ Examiner Regulation Spin-a-Wheel pull toy. As a result, the petition will be put on hold until you can either present the Examiner with the citation to the regulation or get a union consultation letter. Depending upon whether you paid for standard or premium processing, this could cause a delay of 15 days to 3 months. As, in my experience, the most inane RFEs are only ever issued in response to petitions that are also the most time sensitive, in instances where you are on a short time you’re better off spending the extra money to get the union letter at the outset. The $300 consultation fee you try to save today could cost the cancellation you face without a visa being approved in time.

• Current USCIS Service Centre Processing Times:

There have been signs of slower processing times at the Vermont Service Center, though they are still faster than the oozing pace maintained at The California Service Center.

Vermont Service Centre:

Standard processing: 8 – 10 weeks

Premium processing: 9 – 10 days

California Service Centre:

Standard Processing 3 – 4 months

Premium Processing 13 – 14 days

 

Deep Thoughts

“If the wise elders of the village don’t teach the children, the village idiots will certainly do so.”

African Proverb 

 

 

 

Send Us Your Questions! 

Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

 

OFFICIAL LEGALESE:

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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

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

Artist Visa Updates, Non-Compete Agreements, Manager/Agent Trust Accounts, 1st Amendment Poop Jokes

Wednesday, April 5th, 2023

LAW & DISORDER

Performing Arts Division

April 6, 2023 

INSIDE THIS ISSUE:

• Artist Visa Updates

• Non-Compete Agreements

• Manager/Agent Trust Accounts

• Is There A Constitutional Right

To Poop Jokes?

 

Artist Visa News & Nausea 

• The Status of Proposed Petition Fee Increases

Thanks to all of you who took the time to write USCIS and the denizens of Congress to object to USCIS’s loathsome proposal to raise petition fees by 300%. A lot of people have since been asking what happens next and what to expect. It’s hard to say. Typically, when USCIS imposes new rules and policies they give 60 – 90 days advance notice. In this case, should USCIS decide to implement the fee increases, my belief is that various lawsuits will be filed to enjoin them from going into effect while they are challenged in court.

So, while you can expect nothing to change within the immediate future, beyond that is anyone’s guess. I know that the lack of certainly is going to make it hard when budgeting for 2023/2024 tours, but nothing about getting visas for artists to perform in the US has ever been a bedrock of dependability or predictability.

• DOS Increases Visa Stamp Application Fees

Speaking of fee increases, not to be upstaged by its nefarious cousins at USCIS, the US Department of State announced on March 28, 2023 that US Consulates will be raising the minimum fee for visa stamp applications from $190 to $205 effective 5/30/23. I’d like to say that this will allow them to hire additional staff to address the significant backlogs and delays that continue to plague US Consulates around the world, but I would be lying if I said that. Instead, except in rare, dire, and unusual circumstances, no one should expect to submit a visa stamp application at most US Consulates and get the visa stamp back in less than 2 – 3 weeks, or longer. In other words, whilst I do not in the least disagree with the indignant music director who sent me an email complaining about the “iniquitous absurdity” of a US Consulate refusing to accommodate his tight international performance schedule, he nonetheless still had to wrench up his big boy pants and accept the cruel slap of indifferent reality.

• Current USCIS Service Centre Processing Times:

Vermont Service Centre: Standard processing: 6 – 8 weeks

Premium processing: 9 – 10 days

California Service Centre: Standard Processing: 3 – 4 months!

Premium Processing: 13 – 14 days

If some of you have filed petitions at the California Service Centre and receive a notice that your petition is being transferred to another service centre DO NOT PANIC. To deal with backlogs, USCIS is randomly transferring petitions to other service centres.

• Request for Evidence (RFE) Alert:

In circumstances where managers/agents have filed visa petitions in which they have also signed the US engagement contracts on behalf of their artists, we have recently been seeing USCIS issuing RFEs asking for (i) proof that the artist has authorized the manager/agent to sign on their behalf and (ii) proof the both the artist and each presenter have authorized the manager/agent to be the petitioner. While you “could” just provide USCIS with copies of management/agent agreements and include petitioner appointment language in all engagement contracts, that would presume a USCIS examiner will read them much less comprehend multisyllabic words. Its simpler just to have everyone—the artist and each presenter/venue—sign a piece of paper saying “I appoint X to be the Petitioner.”

Legal Issue of the Month:

Are non-compete/non-solicitation agreements a thing of the past?

Whether it’s a management company hiring an associate or a non-profit organization hiring a development director, its not uncommon in the arts and entertainment industry for employment contracts to include non-compete provisions which generally serve to prevent employees from taking jobs with an ex-employer’s competitors or clients for a certain period of time after they leave.

On Jan. 5, 2023, the Federal Trade Commission released a proposed rule that would bar employers from making workers agree to non-competes. The proposed rule is based on a preliminary finding that non-competes constitute a form of unfair competition in the labour market, lowering wages, and stifling innovation, among other issues, and therefore violate Section 5 of the Federal Trade Commission Act. The proposed rule, as written, would apply to independent contractors and unpaid interns as well as employees, and it would make companies retroactively rescind non-competes they’ve already secured.

Non-solicitation agreements, whereby employees are forbidden from soliciting existing clients, customers, or employees of their employers, as well as agreements that prevent ex-employees from using or disclosing the proprietary, non-public information of their ex-employers (such as engagement contracts, books and records, tour budgets, etc.) would continue to be valid provided they are narrow, targeted, and not silly. For example, presenter and venue contact information, or anything that could be found on its own just by asking someone else or through a google search is neither proprietary nor confidential.

As most courts will not enforce broad non-competes and non-solicitation agreements anyway, this new rule would prevent employers from bullying or threatening their employees with frivolous lawsuits by not allowing such provisions to be in a contract in the first place.

Dear Law and Disorder:

Actual questions we get asked and the answers people actually don’t want

“Manager/Agent Trust Accounts”

Dear Law and Disorder:

I am considering working with an agent, but almost every agent I speak with wants to collect my engagement fees on my behalf. Why can’t I collect my fees and just pay the agent? If an agent collects my fees, should I ask for a separate bank account? What about statements? Is it reasonable to ask for monthly accountings? When do I get paid? What’s standard?

First, and foremost, nothing in this business is “standard.” Yes, there are penchants and preferences, but if you took a poll of 50 people in our business and ask what is “standard”, you’d get 50 difference answers—with all 50 basing their definition upon their own self-interest. So, if anyone tries to force you into an arrangement you don’t want by claiming its “standard” or “this is what everyone does”, run away! If parties truly want to work together, everything is negotiable.

All that being said, it’s not uncommon for an agent or manager to prefer to accept fees on behalf of an artist. Among the very legitimate reasons for this, it allows artists to focus on performing and not bookkeeping, especially when on tour, and allows the agent to follow up on contracts, payments, and other logistical issues on an artist’s behalf. It’s also easier for an agent to collect fees, deduct commissions, and send the balance to the artist rather the agent having to issue an invoice or chase down an artist who, again, may be on tour or simply abstains from reading any emails that contain the subject line “balance due.”

Both licensed and un-licensed agents are legally required to keep all collected money in a separate account and issue statements accounting for all money collected and held on behalf of an artist. Keeping money in a separate account not only makes booking and accountings easier, but also helps to ensure than an artist’s money doesn’t accidentally get co-mingled with the agent’s own money. Also, in the event an engagement is cancelled, a deposit may need to be returned. Having the money held in a separate account ensures that the funds are not prematurely dispensed, or used for unrelated purposes, for which both the artist and agent could be liable.

Is There a Constitutional

 

Right To Poop Jokes?

The US Supreme Court is poised to address one of the most epochal issues on everyone’s mind: is there a 1st Amendment right to tell poop jokes?

Currently before the Supreme Court is Jack Daniel’s v. VIP Products wherein VIP Products, the nation’s second-largest maker of dog toys, is accused of infringing upon the whiskey maker’s trademarked bottle shape and label by manufacturing and selling squishy dog toys that resemble a bottle of Jack Daniel’s with the label showing a dog and the by-line “dropping the old No. 2 on your Tennessee carpet.” While traditional parody exceptions already in place would normally support VIP, Jack Daniel’s contends that the value of its trademark will be diminished if people begin to think its product makes dogs poop. So, VIP has responded by arguing that the 1st Amendment supersedes Trademark Law and allows parody to cross any lines or restrictions, regardless of how offensive or objectionable to the party being parodied—which would be a superfluous argument in most cases had not several lower federal courts agreed.

Notwithstanding the fact that so many of its customers apparently serve whiskey to their dogs that Jack Daniel’s is concerned with lost sales, should VIP prevail it would essentially eliminate trademark law when it comes to parody. It’s a classical example of an inane case brought purely because litigators are willing to litigate anything if you pay them enough, the outcome of which could have larger consequences: Does a 1st Amendment claim of parody automatically allow anyone to use another’s name, song title, or logos without restriction and under any circumstances, whether its by association with poop, porn, or politicians, regardless of the owner’s objections or concerns?

For those of you who feel so moved, you can read more about this here:

www.vox.com/politics/23650136/supreme-court-poop-jokes-jack-daniels-vip-dog-toy-trademark-lanham-act

Deep Thoughts

“With enough spizzerinctum, there’s almost nothing you can’t accomplish.”

Cynthia Bowes-Palmer

 

 

 

Send Us Your Questions! 

Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

 

OFFICIAL LEGALESE:

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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

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Posted in Contracts, Employees, Independent Contractors, Law and Disorder: Performing Arts Division, Trademarks, Visas | Comments Closed

CALL TO ACTION! ARTISTS COMMUNITY ASSEMBLE!

Wednesday, February 22nd, 2023

LAW & DISORDER

Performing Arts Division

February 22, 2023 

CALL TO ACTION!

ARTS COMMUNITY ASSEMBLE!

 

We have until MARCH 13, 2023 to file public comments and objections to USCIS’s proposal to artist visa petition fees to nightmarish levels.

As a reminder, United States Citizenship and Immigration Services (USCIS), the consummate embodiment of incompetency, capriciousness, and paranoia spawned from the feted nether loins of the United States Department of Homeland Security (DHS), has proposed the following:

>>>The standard processing fee for O-1 and O-2 petitions would increase from $460 to $1655 per petition.

>>>The standard processing fee for P petitions would increase from $460 to $1615 per petition.

>>>O-2, P-1, and P-1S petitions would be limited to 25 people per petition.

>>>The Premium Processing Fee would remain at $2500 per petition, but the petition would be processed in 15 business days as opposed to the current policy of 15 calendar days.

If these proposals are implemented:

  • It would cost an individual performer in any field of arts and entertainment $1615 plus an applicable union consultation fee of $250 – $1000 to file a visa petition and then another $190 to apply for a visa stamp at a U.S. Consulate.
  • It would require a typically sized orchestra or other large group of 70 members (including staff/crew) to file 4 petitions at a total cost of $6460 in USCIS filing fees, plus union fees, and visa stamp application fees. If premium processing were required, that would cost an additional $10,000 (4 petitions x $2500).

THESE FEES HAVE NOT GONE INTO EFFECT…YET.

THEY HAVE MERELY BEEN “PROPOSED.”

However, we have only a short window to file objections.

Whilst national and international organizations throughout the arts and entertainment industry are preparing comments and objections on behalf of their members, it is just as critical that everyone from the entire biosphere of arts and entertainment—classical, jazz, theatre, ballet, rock, hip-hop, circus, multi-media, druidic poets, zither players, agents, presenters, promoters, venues, and even weary arts lawyers, regardless of where you are located in the world—submit their own individual, personal comments and objections as well. Now is not the time to hope others in your field speak for you. Also, other industries and sectors, such as technology, sports, and finance are more than willing to pay additional fees to get the people they want.

We’re on our own here folks.

We need to inundate USCIS with a sufficient deluge of objections and comments that it will require an ark for a haggard band to survive and repopulate their cubicles. We need to let them know we are here and what’s at stake.

Comments can be filed online through the Federal Register Portal by the extended deadline of March 13, 2023. 

(Please remember that any comments submitted through the Federal Register portal will be viewable by the public. So, while trendy these days, avoid threats of violent reprisals or uprisings.)

When commenting, please don’t just object or make generalized remarks about the importance of the arts, culture, and rainbows. They don’t care. It is essential to provide specific examples on the actual, real life impact these proposals will have, such as:

  • Artist X comes each year to perform at the Y International Festival. If these fees are implemented, the artist will not be able to afford to come and, without international artists, the festival will close.
  • Group X is booked regularly by venue Y. It sells out, bringing in $___ revenue to the venue and the community. If the group cannot afford to enter, this will all be lost.
  • Benevolent Foundation X underwrites performers from diverse cultures around the world to perform for children and others in U.S. communities that would otherwise not get exposed to them. If these fees are implemented, there will not be sufficient funding to continue these programmes.
  • Why is USCIS proposing fee increases without committing to any improvements to the visa process to make it more efficient, consistent, and reliable?

For additional ideas and suggestions on comments, the Performing Arts Visa Working Group (PAVWG), an ad hoc coalition of national and international performing arts organizations led by the League of American Orchestras dedicated to improving opportunities for international cultural exchange, CLICK HERE. 

PAVWG is intentionally not providing any templates or forms because we need USCIS to read each comment and not discard form-letter entries.

In addition to submitting comments and objections to USCIS, U.S. Citizens should share them with their Senators and members of Congress as well—except, perhaps, those of you in Florida, Texas, Georgia, and other states whose representatives will just view the fee increases as a nifty way to discourage the demonic hordes of non-U.S. artists who would otherwise poison the U.S. with their fiendish ideas of affordable health care, paid vacations, clean water, and similar signs of the approaching apocalypse of the end times. We recommend using THIS PLATFORM  created by our friends at the League of American Orchestras to paste a copy of your comments to share with your U.S. Senators and member of the U.S. House of Representatives.

Lastly, we are also asking everyone to spread the word on whatever social media platforms you frequent with the tag #OpposeTheFeeIncrease

Coming Attractions

Hopefully, in March we’ll be able to focus on topics other than artist visas, including recent updates on non-compete clauses, handling engagement fee deposits, and other important, but less volatile matters.

 

 

Deep Thoughts

“Don’t give up! I believe in you all.
A person’s a person, no matter how small!
And you very small persons will not have to die
If you make yourselves heard! So come on, now, and TRY!”

Dr. Seuss, Horton Hears A Who

 

Send Us Your Questions! 

Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

 

 

OFFICIAL LEGALESE:

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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

 

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Posted in Law and Disorder: Performing Arts Division, Uncategorized, Visas | Comments Closed

USCIS PROPOSES DRACONIAN FEE INCREASES FOR ARTIST VISAS! 

Wednesday, January 25th, 2023

LAW & DISORDER

Performing Arts Division

January 25, 2023

USCIS PROPOSES DRACONIAN FEE INCREASES FOR ARTIST VISAS! 

Despite my efforts to have our blogs and updates covering a wide range of topics, and not just artist visas, I am now frustratingly forced to focus entirely on a significant issue that has arisen in the world of obtaining visas for artists to perform in the US.

United Statues Citizenship and Immigration Services (USCIS), by and through the auspices of their reptilian overlords, the United States Department of Homeland Security (DHS), has proposed the following:

  1.  The standard processing fee for O-1 and O-2 petitions would increase for $460 to $1655 per petition.
  2.  The standard processing fee for P petitions would increase from $460 to $1615 per petition.
  3.  O-2, P-1, and P-1S petitions would be limited to 25 people per petition.
  4.  The Premium Processing Fee would remain at $2500 per petition, but the petition would be processed in 15 business days as   opposed to the current policy of 15 calendar days.

So, for example:

  • If a major orchestra or ensemble with 80 members wanted to tour the U.S., it would need to file 4 petitions at a total cost of $6460 in USCIS filing fees (4 petitions x $1615). If they needed support staff (managers, stage crew, etc.) that would require an additional petition at a cost of an additional $1615. If premium processing were required, that would cost an additional $12,500 (5 petitions x $2500).
  • If a single artist wanted to enter with an accompanist, band, company members, or crew, that would require O-1 and O-2 petitions at a cost of $3310 (2 petitions x $1655).

USCIS argues that it is facing considerable backlogs and staffing shortages and that, as it must rely almost entirely on petition fees to fund its operations, it needs to raise its fees to meet demand and improve service. It also argues that, as a result of COVID, fewer petitions were filed, resulting in a significant loss of income.

To be fair, unlike most other government agencies, USCIS does, indeed, rely almost entirely on fees and not federal funding. Also, whereas Congress allocated specific funds to USCIS in fiscal year 2022 to be used to address backlogs, all that got taken away for fiscal year 2023. However, USCIS was infamous long before COVID for operating with the competency and efficiency of a Great Dane cooking a soufflé with an oven mitt on its head. Moreover, $600 of the proposed fee increases include an “Asylum Program Fee” whereby everyone who files a petition or application of any kind with USCIS will be assessed an extra fee to cover the costs of USCIS having to process an increased number of applications for asylum seekers and refugees. In other words, the proposed $1655 filing fee for an O petition actually consists of a $1055 filing fee plus an additional $600 “build the wall” fee.

Because these are “proposals” and not a final ruling, USCIS is required, however disingenuously, to provide a “comment period” for the general public and interested parties to provide comments, objections, and concerns. The comment period is open until March 6, 2023, after which USCIS will take several months to review public feedback, disregard any feedback it doesn’t agree with, and implement the new proposals anyway.

Many will recall that USCIS proposed significant fee increases and policy changes in 2019 and disregarded all of the public comments and objections at that time. Ultimately, it was only due to a lawsuit and a subsequent court injunction that thwarted USCIS’s plans. Having since had a chance to study its enemy and reassemble its forces, USCIS is proposing even more drastic proposals than it did in 2019. 

Should you be in need of extraordinary abrasive toilet tissue, you can download, read, wince, and flush the full 500 pages of the Proposal HERE. Among its many slings and arrows, you will note that USICS specifically addresses, and summarily dismisses, any significant impact these proposals would have on “arts” and “culture.” At pages 99 – 100 of the Proposal USCIS writes:

“DHS is committed to reducing barriers and promoting accessibility to immigration benefits, and knows that the beneficiaries of Forms I-129 and I-140 fuel our economy, contribute to our arts, culture, and government…DHS is also aware that Forms I-129 and I-140 are submitted by non-profit entities [and] appreciates that non-profit or small entities may not have the same level of financial resources as many large, for-profit corporations that also submit petitions for foreign workers.

USCIS purports that it engaged in a study of the impact that petition fees have on non-profits and small entities and concluded: “…approximately 90 percent of the small entities in the sample experienced an economic impact of less than 1 percent of their reported revenue… USCIS acknowledges that those small entities with greater than 1 percent impact may file fewer petitions as a result of this proposed rule.” In short, USCIS ran all this by Disney, Netflix, and the NBA, who also file O and P petitions, and they expressed no objections to the additional fees. However, for those of you not supported by a national sports league, USCIS helpfully suggests on page 269 of the Proposal: “DHS acknowledges that applicants and petitioners may face additional difficulties in paying the fees, and may be required to…save money longer to afford the fees, or resort to credit cards or borrowing…”

Although artist visa petitions represent a small fraction of the work USCIS is asked to do, USCIS concedes at page 210 of the Proposal that it does not, in fact, have the capacity or data to determine whether or not O and P petitions for artists in particular are adding to its backlog at all. It specifically admits: “DHS lacks the information to propose separate fees for each of these classifications.” So, the teacher has merely decided to punish the entire class rather than attempt to discover exactly who put 12 tablets of Dulcolax in her tea.

In other words, USCIS continues to display less that a fart from a flea on the freckle on a demented rat’s ass about the arts and entertainment sector.

I strongly suspect that, as in 2019, fighting this new advance will require yet another lawsuit, except this time with all major arts organizations, service organizations, venues, and presenters all joining in as part of major class action. For now, we need to take advantage of the comment process and raise as much noise as we can.

A CALL TO ARMS!

The tireless warriors at the League of American Orchestras are working with national organizations throughout the arts and entertainment industry to prepare joint comments. However, it is essential that each of you—your artists, board members, audience members, supporters, friends, families, and even opposible toed pets—take the time to comment on the significant artistic and economic impact these proposals will have on the ability for international artists to perform in the US. ALL artists, from ALL sectors: jazz to opera, folk to theatre, rock to ballet, playwrights, composers, orchestras, bands, and everyone one all sides and in-between. We need to be in this together.

The League of American Orchestras has compiled suggestions for comments, including:

  • International artists are engaged throughout the arts and entertainment industry, which is still itself recovering from the effects of COVID-19. Most of these entities do not, in fact, have the ability to pay these proposed fees. 
  • Drastic fee increases will stifle international cultural activity, put U.S.-based jobs at risk, and have a negative economic ripple effect on communities supported by arts events.
  • Delays in processing are already forcing some petitioners to pay the already unaffordible Premium Processing Fee or forgo engaging international artists.
  • To date, USCIS has ignores all proposals that have repeatedly been made to them through all available channels to suggest ways it could change its own policies and procedures with regard to reducing any backlog specifically related to O and P artist petitions, including (i) recognizing prior O and P approvals; (ii) requiring only updated materials as opposed entirely new petitions for artists that have recently performed in the U.S.; or (iii) deferring to experts and established arts organizations to know who is and is not a “distinguished” artist or group and not assume that every bassoonist or flower mime is being engaged purely to make America “less great.” (Ok, I added the “less great” bit on my own. Don’t include that.)

It is also essential to provide SPECIFIC examples of the financial impact these new fees will have on you or your organization in particular, such as cancelling performances, losing the ability to engage guest artists, etc.

Comments can be filed online through the Federal Register Portal by the deadline of March 6, 2023. 

To make your comment, click HERE.

Please remember that any comments submitted through the Federal Register portal will be viewable by the public. So, avoid threats and keep swearing to a minimum.

In addition to issuing a formal comment in response to the Proposal, everyone is strongly encouraged to forward a copy of your comments to your U.S. Senators and members of the U.S. House of Representatives, as well as engage the your audiences, speak up and out, create performance art advocacy, and whatever else it takes for our situation to be taken seriously.  

You can find a deeper analysis, along with further advocacy opportunities on the League’s website as well as on its recently released ADVOCACY ALERT.

Deep Thoughts 

 

“Arise, arise, Riders of Théoden!

Fell deeds awake, fire and slaughter! spear shall be shaken, shield be splintered, a sword-day, a red day, ere the sun rises!

Ride now, ride now! Ride to Gondor!”

— J.R.R. Tolkien, The Return of the King

 

Send Us Your Questions! 

Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.

 

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

OFFICIAL LEGALESE:

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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

 

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

Artist Visa Updates, Force Majeure Clauses, Streaming Licenses, and Deep Thoughts

Thursday, December 8th, 2022

 

LAW & DISORDER

Performing Arts Division

December 8, 2022

 

INSIDE THIS ISSUE

> Artist Visa Updates <

> Force Majeure Clauses <

> Streaming Licenses <  

> Congratulations! <

> Deep Thoughts < 

Artist Visa Updates 

• Current USCIS Service Center Processing Times

Vermont Service Center:

Standard Processing: 4 – 6 weeks

Premium Processing: 9 – 10 days

California Service Center:

Standard Processing: 2 – 4 MONTHS!

Premium Processing: 13 – 15 days!

•  Most US Consulates continue to experience significant backlogs with regard to visa stamp appointments. Some have no interview appointments for 60 – 90 days whereas others are granting interview waivers, but with no consistency between one consulate and another. Please factor this in when making bookings and budgets. In other words, if your conductor isn’t performing in the US until April 2023, but has only set aside 2 days in early January when he can make himself available to apply for a visa, start looking for a guest conductor. Specific information for each consulate can be found on that consulate’s website…and except for citizens of certain countries, anyone can apply for a US visa stamp at any US Consulate.

•  As of August 11, 2022, USCIS no longer requires petitioners to submit a duplicate copy of Form I-129 or a duplicate copy of any supporting documentation unless USCIS specifically asks for it. (Whilst I’d like to think this was to diminish the impact of deforestation on climate change, it’s more likely due to the fact that Sauron has discontinued his policy of allowing USCIS to toss its extra paper into Mount Doom.)

•  USCIS has issued a new edition of the I-907 form. Starting January 30, 2023, USCIS will only accept the 11/03/22 edition. There are no changes. It’s the same form with a different date at the bottom. However, accomplishing this critical assurance of national security required two filibusters, three Congressional hearings, and an armed insurrection at the Golden Corral in Bent Fork, Arkansas which dared to close its Sunday buffet an hourly early.

•  Yes, it is still possible to obtain artist visas for Russians. So long as they can get to a U.S. consulate, there are no bans or restrictions on Russians. The challenge is that there are no US Consulates in Russia, some EU countries will not allow Russians to enter, and the EU won’t allow any Russian planes to fly over its airspace. So, they just need to get to a consulate. If they are already in the EU, then they get to face the same visa insanity as everyone else.

Legal Issue of the Month:

Force Majeure Is Not The Same as Cancellation

If an engagement contract contains no option for cancellation or termination, then it cannot be cancelled or terminated without mutual consent. Otherwise, whichever party cancels will be in breach and potentially owe damages to the other party. Parties can always negotiate cancellation clauses under which either party can cancel an engagement under certain circumstances and by paying cancellation fees; but, if they don’t, they remain forcibly conjoined.

However, Force Majeure/Acts of God clauses are something different. These are contract clauses which say that if something happens beyond the control of either party (typically, fire, flood, illness, royal demise, etc.) which makes it impossible for one of them to honour the contract, then that party can void the contract without owing damages or fees to the other. In other words, whereas a cancellation clause may require a party to pay bail to cancel a concert, a Force Majeure/Act of God clause is like a “get out of jail free card.”

Parties can use a contract to define exactly what constitutes Acts of God (ie: a hurricane as opposed to a backed up toilet, illnesses supported by a doctor’s note, etc.). However, because of COVID, the economy, and genera insecurity, we are seeing more and more instances of parties trying to squeeze cancellation penalties or payments into Force Majeure/Act of God clauses. Presenters are claiming that poor ticket sales or lack of funding should be considered God’s fault whereas artists are claiming that if even if the concert hall is overrun by zombies, they are entitled to non-refundable deposits and penalties if the venue cancels. While parties should take every opportunity to explore and negotiate cancellation clauses with as many draconian conditions as they could possibly want, these are not Acts of God/Force Majeure clauses.

Why is this anything other than a miniscule, legalistic subtlety? Because if a party cancels an engagement contract because of a legitimate inability to present the engagement that could not otherwise have been foreseen, a court will not enforce penalties or damages regardless of what the contract says. Moreover, most state and local municipalities (particularly colleges and universities) are prohibited by State Law from having to pay non-refundable deposits or fixed cancellation fees, regardless of the reason for the cancellation. So, like everything else, if you believe the only force that separates your orchestra from insolvency is divine intervention, you’re going to need to talk this one through.

Dear Law & Disorder:

Actual Questions we get asked and the answers people don’t want! 

Streaming Rights & Licenses

Dear Law and Disorder:

We have two questions with regard to live streaming some of our concerts and recitals. We, of course, have paid the ASCAP and BMI licenses/fees to cover the rights for live performances. Does paying those licenses for live performances also cover streaming the concert live? The other issue involves archiving the recordings of the concerts, or leaving them on the website for a time after the concert so patrons (e.g., parents of students or any other interested parties) can view the concert at a later date if they had a conflict the day of the original concert and were unable to watch it live. Would this practice also be covered by the licenses or fees we’ve already paid? Is this a grey area in which the law has not yet caught up with the technology, or would this practice be a violation of copyright?

ASCAP and BMI are two of the many Performing Rights Organizations (PROs) which issue licenses to present live performances. Whilst some licenses for live performances also cover the right to stream the concert live, others do not. As with all rights, you only get what you ask and/or pay for. So, if your license also included the right to stream live concerts, then your license covers that. On the other hand, if you only paid for live concerts, then it does not. You need to check the license terms and agreement you received from ASCAP and BMI. (However, not all composers/songwriters below to ASCAP or BMI, so you may need licenses from other PROs as well.

With regard to the issue of “archiving the recordings of the concerts”, the good news is that it is not a grey area at all. The bad news for you may be that it is not a grey area at all. Making any audio or audio/visual recording of a concert is not covered by PROs at all. Such rights must be obtained from the performers and, unless they are performing their own, original music, the right to record the music must be obtained directly from the composer/songwriter or their publisher. There is no “inherent right” to make a recording of any performance or composition at any time under any circumstances for any purpose without the permission of (a) the composer/songwriter of the music and (b) the performers themselves.

CONGRATULATIONS! 

It is with exhilarating enthusiasm that we congratulate Monica Felkel, a legendary icon of the classical music and performing arts industry, on the establishment of her own boutique management and consulting firm.

Monica Felkel Creative Partners provides Artist Management, Artistic & Strategic Consulting, and Project Management & Development.

 

“Everything we do is guided by a passion for classical music and the performing arts and a commitment to providing each artist and cultural institution with the support, guidance, expertise, and innovation they need to achieve their artistic goals and aspirations.”
Monica J. Felkel, President

We look forward to working with her and her distinguished roster of creative partners in offering her clients a comprehensive range of services and expertise unparalleled in the field.

CLICK HERE LEARN MORE ABOUT MONICA FELKEL CREATIVE PARTNERS

 

Deep Thoughts 

 

 

“Everyone seems normal, until you get to know them.”

 

 

Send Us Your Questions! 

Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

 

OFFICIAL LEGALESE:

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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

 

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Posted in Contracts, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Uncategorized, Visas | Comments Closed

Backlogs at US Consulates, New USCIS forms, Contract Entirety Clauses, and Board Term Limits

Wednesday, June 15th, 2022 
LAW & DISORDER:

Performing Arts Division

June 16, 2022

INSIDE THIS ISSUE

» Backlogs at US Consulates «
» New USCIS forms «
» Contract Entirety Clauses «
» Board Term Limits «

Current USCIS Service Center Processing Times:

Vermont Service Center: 
Standard processing: 4 – 8 weeks
Premium processing: 9 – 10 days

California Service Center: 
Standard Processing 2 – 4 MONTHS! 
Premium Processing 13 – 14 days!
US Consulates Are Significantly Backlogged!
The current slow down at the California Service Centre notwithstanding, the real bad news is that many—not all, but many–U.S. Consulates continue to experience significant backlogs. Artists approved for visas are finding that it can take weeks or months to have their visa stamps issued by a U.S. Consulate. Just within the last few weeks, an artist approved for an O-1 visa found she could not get an appointment for a visa stamp at the Paris Consulate until January 2023!

Whilst some consulates have expanded their interview waiver programme, many continue to be wildly inconsistent with regard to how this is implemented, including whether to grant interview waivers at all. For example, an artist was recently informed by the U.S. Consulate in London that, though he qualified for an interview waiver, it could take “several weeks or months” before he would be able to submit the application and get his visa stamp. Others have found it has taken 3 – 4 weeks for Consulates to return passports with visa stamps. Consulates also continue to be wildly inconsistent in how they grant requests for emergency appointments, with arts visas, of course, sedimenting to the bottom of the bin.

Whilst it is still “officially” possible for anyone, regardless of citizenship, to apply for a visa at any U.S. Consulate in the world where one can get an appointment, some consulates—purportedly to manage workload—are only accepting applications from citizens or residents of the country in which the Consulate is located.

In response to manifold complaints and queries from all sectors, the U.S. Department of State has issued several urgently indeterminate statements, a synopsis of which essentially being as follows:

“Yes, we know there’s a problem. We are very sorry. We are doing our best. We have a lot on our plates rights now. We are currently implementing many solutions which, due to national security, we cannot divulge other than to re-assure you in the vaguest possible terms that these new solutions will be more effective than our previous solutions which in hindsight should have been seen as imprudent in the expectation of their efficacy. Will it help if we continue to blame COVID? We care about you. Really. Every effort is being made towards prioritizing a scheme pursuant to which visa applications will be prioritized based upon a system of discretionary prioritization. The wizard says go away!”

Devastatingly, we are increasingly encountering engagements having to be cancelled or rescheduled where visa petitions were approved, but artists could not get their visas in time to travel. As such, please take this into consideration when planning your timelines and budgets. If you are planning anything for fall 2022 which depends upon a non-US artist, you would be wise to (1) check the current application procedures and timelines for the consulate where the artist will be applying for their visa stamp and (2) seriously consider premium processing at the outset so as to get the petition approved quickly and allow for as much time as possible for the visa stamp application process.

USCIS Has Issued Updated Forms

On May 31, 2022, USCIS released new editions of Form I-129 (used to file for O and P visa Petitions) and Form I-907 (for Premium Processing). Both of these forms are identical in all respects to the prior forms, except with new dates at the bottom. Why did they bother, you say? What was the point? No point. They’re just a bunch of crazy kids.

Legal Issue of the Month:
Contract Entirety Clauses

Look out for what are sometimes called “superseding agreement” or “entirety” clauses. They appear in almost all contracts, usually buried amongst the “legalese” that no one wants to read. They usually say something like this: “This Agreement constitutes the entire Agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.” It means that emails and discussions are not binding once the contract becomes binding.

So, if you had a series of emails with a presenter confirming that your artist must have a dressing room free of feather pillows, but that never made it into the final engagement contract, and the contract contains an “entirety clause”, then she’s going to need some extra-strength Zyrtec. I encountered this situation in the context of travel arrangements, but the issue is the same–and, no, sending me the chain of emails and texts did not help two days before the date! 

Dear Law and Disorder
Actual Questions We Get Asked and The Answers People Don’t Want

“BOARD TERM LIMITS”

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 through wealth, work, or wisdom (as opposed to whining, wasting staff time, or wrongheadedness) contribute to the success and productivity of the organization. Once you are lucky enough to find such pearls, 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 where board members can then be re-nominated and re-elected provides you with such flexibility.

On the other hand, term limits for officers can be more appropriate. Why? Because with no term limits, 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 needed growth or change. At the end of the president’s term, they can still serve on the board, but no longer gets to wield the mace of supreme authority. Also, in my experience, I have found that those you most want to serve as board presidents or chairs will also be those who do not want to serve more than a few years year whereas those you want to avoid will be those looking to establish a hereditary fiefdom.

Deep Thoughts

“The nicest thing about not planning is that failure comes as a complete surprise and is not preceded by a period of worry and depression.”
John Harvey Jones.”
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GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

OFFICIAL LEGALESE:

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 threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!
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THE NIE WALL TO COME DOWN …and more good news!

Wednesday, September 22nd, 2021

By Brian Taylor Goldstein

It’s so rare that I get to share anything positive in the world of artist visas that I still find myself wondering if I have inadvertently fallen through the matrix into someplace where it is not 2021.

The White House announced today (Monday, September 20, 2021) that in “early November” it would be lifting the current U.S. COVID travel ban with regard to fully vaccinated travellers having to obtain a National Interest Exception (“NIE”) waiver in order to enter the U.S. from the European Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, and Vatican City), the United Kingdom, Ireland, Brazil, South Africa, India, and China.

We do not yet know WHEN in November this will happen…and whether or not the AstraZeneca vaccine will be recognized (as it is currently not recognized as an approved vaccine in the U.S.—but, when it does, it means that artists who are fully vaccinated and hold valid visas can immediately fly into the U.S. without having to endure the agony, uncertainty, and aggravation of obtaining an NIE…leaving only the agony, uncertainty, and aggravation of everything else, but at least, we’re used to those bits.

Artists who have been approved for visas, but still need to obtain an actual visa stamp from a U.S. consulate will still need to deal with significant backlogs and long waits for appointments at most U.S. Consulates. However, there is some light peeking through the clenched butt cheeks of the dark lord in that area as well….

With the NIE process potentially behind us, U.S. Consulates will be able to devote more staff to processing visa applications and will start making more appointments available. In addition, we are seeing more and more consulates granting interview waivers to those who have been issued a visa in the same category anytime within the prior 24 – 48 months. (Every U.S. Consulate handles this differently, so check the website of your specific consulate to find out.) For those who do not qualify for interview waivers, you will need to request expedite appointments. We do not know how consulates will prioritize such requests, but arguing dramatic and catastrophic consequences in support of your request is always best.

In more personal news…..

We are delighted to announce and welcome a new addition to the team at GG Arts Law: Harrison Weinstein. In the role of Artist Services Assistant, Harrison will be providing an additional level of support services to our artists and clients in areas such as contract servicing and administrative support.

Harrison is an accomplished, New York City-based freelance photographer whose work focuses on using photographs to reflect the times we currently live in and how they reflect American ideology. Employing subject matter such as architecture, light, place, and community, either in a single image or sequenced in a series, he explores the blurred lines of our existing economic and social class levels on a local and national scale. His critically acclaimed work has been recognized in numerous publications, including The New York Times, as well as exhibited at such galleries and venues as The International Center of Photography Museum in New York. In addition, having grown up in a musical family, he was exposed to music throughout his life, specifically jazz, and his images capturing a wide range of artists, musicians, and performers in both portraiture and live performance hang in several private and corporate collections and have been used in numerous promotional campaigns. Harrison received his BFA in Photography and Video at The School of Visual Arts in New York City and has worked under such world renowned photographers such as Pari Dukovic and Jan Staller.

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

VISIT OUR  WEBSITE: ggartslaw.com

THE OFFICIAL LEGALESE:
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 or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.

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CLOUDY WITH CONTINUED EXCEPTIONS

Sunday, July 11th, 2021

Every time I sit down to write a blog about a more compelling subject, such as tales of successful artist entrepreneurship or navigating exciting new commissions and projects, a visa crisis drags me back into the bowels of despair. On this occasion, it’s the ongoing impact of the U.S. COVID Travel Ban on international artists coming to the U.S. compounded by the significant backlogs and delays at most U.S. consulates.

For those of you who don’t know what I am talking about, you either don’t work with non-U.S. artists or you have been blissfully unconscious for the past 15 months. Whichever the case may be: “Where ignorance is bliss, tis folly to be wise.” (Thomas Gray). For everyone else, here’s a quick recap:

Under the U.S. COVID Travel Ban, anyone traveling to the U.S. from the European Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, and Vatican City), the United Kingdom, Ireland, Brazil, South Africa, or India cannot enter the U.S. without EITHER traveling to a country not on the list and quarantining there for 14 days before entering the U.S. OR qualifying for an exception to the ban. There are various exceptions for immediate family members of U.S. Citizens spouses, medical professionals, and people coming to help fix roads and bridges, but no automatic exceptions for artists. For artists to get a waiver from the ban, they must qualify for the “catch-all” exception of showing that it is in the “national interest” for them to be granted an exemption from the ban. This is called a “National Interest Exception” or NIE…or, more aptly: “Naturally It’s Execrable.”

To make matters worse, for artists who have been approved for O or P visas, but need to apply for them at a U.S. Consulate, as a result of COVID lockdowns and closures over the last 15 months most U.S. consulates—particularly in Europe and the U.K. (which isn’t really part of Europe anymore ever since it unmoored itself and drifted off in the Ocean of Belegaer towards the Undying Lands) are either not accepting visa application appointments or have none available until February 2022 or later.

For more info, stop and first read our May 20, 2021 blog entitled “Is It Time For Artists To Return To The US?” which you can find either here on Musical America  or on our website www.ggartslaw.com, then come back and read on.

As the COVID Travel Ban is negatively impacting almost all sectors of the U.S. economy—from hospitality and tourism to manufacturing and global trade—on Thursday, July 8, the American Immigration Lawyers Association hosted a nationwide zoom call to discuss the crisis and the latest developments, as well as potential strategies and solutions. The call included liaisons with both the U.S. Department of State (DOS) and U.S. Customs and Border Patrol (CBP). (What, you say? What about USCIS? For once, the scourge of USCIS is not responsible for our current tortures.) Not surprisingly, I was among the few on the call who worked with artists, but I was able to learn a significant amount of relevant information to us nonetheless.

So, pour a drink and brace yourselves….

The COVID Ban is not likely to be lifted any time soon.

Whilst there is broad-based pressure and lobbying taking place from all sectors and multiple industries to have the ban either lifted or amended, the White House at the moment is NOT being responsive to lifting the Presidential Order that implements the ban. Apparently, as the U.S. economy begins to return to pre-COVID levels and most parts of the country have seen COVID cases drop, they have no interest in risking those achievements—especially as new COVID variants continue to emerge. Additionally, there are large swathes of the U.S. still living in 1865 and whose denizens cower from the threat of reptilian aliens disguised as Italian waiters bearing vaccines laced with an implant designed by the Chinese to turn everyone in to gay socialists when activated by a space satellite owned by Iceland. At the moment, they are relying completely on the U.S. Centers for Disease Control and Prevention (CDC) to set COVID policy with regard to international travel. In the meantime, there are various lawsuits challenging the legality of the ban, but it will take a while for those to work through.

As opposed to becoming more streamlined (as we all had hoped), the process for obtaining an NIE is taking longer and has become more complex.

Though U.S. Consulates are titularly controlled by DOS, each U.S. consulate operates as an autonomous fiefdom in setting its own NIE policies, procedures, and requirements. As a result, inconsistencies are rampant and the situation is going to continue to be unpredictable, fraught with uncertainty, and with no clear paths or directives forthcoming.

For now, it continues to be the case that artists can only apply for an NIE at a U.S. Consulate in a country where they are either a citizen or permanent resident. However, whereas some consulates require the NIE request to be submitted via email with the ability to attach evidence and supporting materials, others will only allow you to request the NIE through the consulate’s website and give you a limit of 500 characters or less within which to do so.

For artists who need both an NIE and to apply for their visas, some consulates will first require you to schedule an appointment—even if it is not until 2022—and then submit the NIE request. Others will not even allow you to schedule an appointment without first being approved for an NIE. Still others may grant an emergency appointment, but then deny the NIE request at the time of the interview. Or, in an experience I had, approve the NIE request, schedule an interview, tell the artist at the interview that everything “looked fine,” and then took so long to issue the visa and return the passport that the artist missed the concert anyway!

It has also become the case that there are simply too many NIE requests being filed in too many circumstances on behalf of anyone and everyone who has a need to enter the U.S., regardless of whether or not they qualify for an NIE. This includes situations where the need for an artist to enter the U.S. is less in the “national interest” than in the “personal interest” of an artistic director who simply doesn’t want to book a different artist because he wants who he wants or in the personal interest of a performer who really needs the engagement fee (ie: which would be all of them right now.)

The U.S. consulate in London, for instance, claims they are getting as many NIE requests in 1 month than they would normally get visa applications. I can attest that whereas only a few months ago London would respond to my NIE request within 48 hours, it is now taking over 60 days. Some consulates, such as Paris, take even longer or never respond at all unless the NIE request has been approved. In addition, as there is no specific definition of “national interest”, all NIE requests for artists must now be submitted from a U.S. Consulate for DOS to make the determination and then inform the consulate which must, in turn, inform the applicant.

So, let’s quickly review what it takes for an artist to qualify for an NIE waiver:

Whilst the term “national interest” is undefined, it most certainly does NOT mean “cultural interest” or “talent” or that “the artist is very big deal.” It must truly be a situation where (i) a specific artist cannot be substituted with anyone in the U.S.; (ii) the entire event will be cancelled without that artist and cannot be rescheduled; and (iii) the cancellation will cause significant economic harm to a U.S. organization to a level that will make angels weep…or, at least, a consulate officer.

In the case of festivals, you must be able to show that the entire event will be cancelled without the artist and not just a single concert that is part of a larger event.

In the case of artistic directors or non-performers, you will need to address why their physical presence is mandatory and why they can’t simply have planning meetings by zoom…and needing to meet with donors face-to-face doesn’t count. The elderly can zoom as well if their grandkids show them how.

In the case of groups or ensembles, you will need to submit an NIE request on behalf of each individual artist and show that each and every member is required, cannot be substituted with anyone else, and losing even one member would cause the entire performance to be cancelled. Regardless, if you apply for 10, expect only 5 to be approved.

Also, if an artist was already in the U.S., left, and now needs to re-enter, they must have had a very good reason for why they left in the first place. As one consular officer explained: “now is not the time for vacations.”

However, there are a few smudges of positive news…

In a further effort to reduce caseloads, DOS announced just last week that if an NIE is approved it will be approved for 12 months and permit multiple entries to cover multiple engagements during that time. This is good news for artist and conductors who, assuming they are approved for an NIE, will no longer need to request an NIE each time they want to enter the U.S. Also, for those artists who have already received NIE approvals, this new policy will apply retroactively to them. [cite]

London and several other consulates (you’ll have to research which ones) have now lifted their prior requirement that an NIE request can only be submitted within 30 days prior to travel and will now permit an NIE request to be submitted up to 60 days in advance of travel.

Also, most U.S. consulates are no longer requiring that airline tickets be booked in advance prior to submitting an NIE request.

On the other hand, as for the significant backlogs and the inability of many U.S. Consulates to schedule visa appointments until 2022 (if at all), that situation is not likely to improve any time soon either.

First, as a result of COVID lockdowns and closures, most U.S. Consulates have a backlog of tens of thousands of applicants for everything from green cards to student visas to employment visas and who have been waiting for appointments for over 15 months. Second, President Mar-a-Lardo successfully gutted the budget of the DOS and over 400 officers were laid off. DOS has made requests for appropriations and more staff for consulates, but that would require Congress’s approval, half of which are, instead, focused on forming militias to fight the aforementioned vaccine threat and are ill-inclined to assist aliens—by them reptilian or European.

For the immediate future, DOS has given U.S. consulates unfettered discretion in determining how to prioritize their workloads with regard to scheduling visa appointments and granting emergency or expedite appointments. For the most part, U.S. consulates will prioritize applications for green cards, family unification, humanitarian cases, and those who have been waiting longer. Applications for new employment-based visas—such as O and P visas—will come last. In fact, many consulates claim that they can either process visa applications or NIE requests, but not both at the same time.

In a pathetically miniscule gesture of addressing the issue, DOS has expanded the ability of consulates to waive the in-person interview for individuals applying for a visa in the same classification they have held before. Previously, only those whose prior visa expired within 24 months were eligible for an interview waiver. This has now been expended to 48 months. So, for example, if an artist had an O-1 visa in 2019 and has now been approved for a new O-1 for 2022, she may be eligible to request a visa interview waiver and just mail in her passport without being required even to go to the consulate. But, of course, “eligible” does not mean “entitled” and waivers remain discretionary and inconsistent, so never assume.

For artists who may not easily qualify for an NIE, how does a Caribbean vacation sound?

If an artist holds a valid O or P visa covering the time they need to be in the U.S., then it is far easier just to travel to a third country not on the banned list, wait there for 14 days, and then enter the U.S. There has been far more success with this approach, than with obtaining an NIE. In fact, several artists I work with have successfully travelled from Europe to the Caribbean prior to entering the U.S. However, each country has its own COVID regulations as to who can enter, so those will need to be researched in advance to travel.

If an artist has an approved O or P petition, but needs to apply for a visa and cannot get an appointment at a U.S. consulate and/or does not qualify for an NIE, the artist can try and apply at a U.S. consulate in a third country that is not on the banned list. However, not all U.S. Consulates will accept visa applications from non-citizens of the country in which the consulate is located.

For example, The Bahamas are happy to let you enter and enjoy their turquoise shark-infested waters for 14 days, but the U.S. Consulate will not let you apply for a visa there unless you are a Bahamian citizen. On the other hand, Barbados will allow you to relax in the sunshine of their smiling island (look at in on a map!) and the U.S. Consulate will also allow you to apply for a visa. Similarly, Mexico will allow you to enter and enjoy an unlimited margarita bar for 14 days and you can then fly into the U.S. (the land border is closed.) However, non-Mexican citizens cannot apply for visas at the U.S. Consulate unless it is a significant emergency. On the other hand, Canada’s poutine palaces are closed to you if your only reason to be in Canada is to enter the U.S. after 14 days or if you are entering solely to apply for a U.S. visa.

Remember airports?

A few of you lovely readers may recall that for a brief period of time in 2020, NIE requests could be submitted in advance to a CBP office at certain airports where an artist planned to arrive in the U.S. Then, in early 2021, that policy was changed and all NIE requests had to be submitted to a consulate. Now, CBP is back—but with restrictions.

You can once again submit an NIE request to a CBP office a major airport, but ONLY if the NIE request was first submitted to a consulate and the consulate never responded or denied the NIE. However, CBP and DOS are two separate agencies and do not confer with one another on policies and procedures. So how long you need to wait for a consulate to respond before being able to send an NIE request to CBP varies from airport to airport…and each one has a different process. So, like with NIE requests at consulates, you will need to research those on a case-by-case basis as well.

So, where do we go from here?

If you are a non-US artist currently in the U.S. in O or P classification and you need to travel to a country subject to the COVID Travel Ban—don’t! I have had many artists not listen to me on this and get stuck.

If an artist must travel or is traveling from a country subject to the COVID Travel Ban, it is strongly recommended that they plan to travel to a third country for 14 days before trying to enter the U.S. The expense and time notwithstanding, it’s easier and, so far, has been more dependable than obtaining an NIE. However, never travel to a third country without first research that own country’s COVID requirements and, if applicable, whether you can, in fact, get an appointment at the U.S. Consulate there.

If you plan to seek an NIE and/or need to apply for a visa on behalf of an artist, you must do research and have a plan. As always, whilst anecdotal evidence can be a great way to start, all cases are different and experience is subject to change.

When applying for an NIE, make sure the artist actually qualifies. Please be genuinely self-reflective and do not submit an NIE for every artist or ensemble just because you want to “give it a shot.” You are only making it worse for everyone else by bogging down the process. Regardless, if you do apply, rarely will you be able simply to simply submit a letter from a manager explaining how important the performance or the artist is. For consulates which permit you to submit evidence, submit actual evidence, including letters from the venues and presenters.

At this stage, do NOT plan for most if any, non-U.S. artists to be able to enter the U.S. to perform in late summer or early fall. Or, at least, have contingency plans.

As we experience COVID variants such as delta, delta plus, and delta business with a free booster shot, continue to expect delay and postponements, possibly into 2022.

As, for the moment, USCIS is processing petitions fairly rapidly—in 6 – 8 weeks for standard processing—get petitions in early and get that over with.

Research, plan, and plan some more. Do not, as one presenter bewailed to me after an artist was refused entry, say: “I just never thought this would be a problem.”

Perhaps it was a bit presumptuous to believe that emerging from the darkness of the last 15 months would involve a light immediately being switched on with regard to international artist travel and proceeding with planned international engagements and performances. Rather, this is going to be more like a slow sunrise with intermittent bursts of COVID surges and clouds of government incompetence.

Perhaps most importantly, the time you waste writing yet another letter to yet another politician complaining about how broken the U.S. immigration system is (and it is!), explaining why it puts artists and the arts in a distinct disadvantage (and it does!), and arguing why international artists are critical to the cultural, intellectual, educational, and economic interests of the U.S. (and they are!) could be far better spent on planning, researching and strategizing—on this, as well as many other issues that I shall leave for another day. Our industry has never been an easy one and there is no rest for the weary, but we have martinis, medication, therapy, and working with wonderful colleagues to get us through.

GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

VISIT OUR NEW WEBSITE: ggartslaw.com

___________________________________________________________

THE OFFICIAL LEGALESE:

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 or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.

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IS IT TIME FOR ARTISTS TO RETURN TO THE U.S.?

Thursday, May 20th, 2021

The COVID Travel Ban, Significant Consulate Backlogs, and Other Current Issues For Non-U.S. Artists

By Brian Taylor GoldsteinSorry for the long delay since my last post, but, well…it’s been an interesting year, to say the least. Things are improving, but 2021 still needs more rehearsal time to work the kinks out. Here in New York City, some signs of normalcy are beginning to return. People are feeling safe enough to pee in the subway without their masks, the costumed characters in Times Square are again groping without hand sanitizer, and the rats are no longer practising social distancing when they spy a dropped pizza crust.  As signs of life begin emerging in the world of the performing arts as well, artists and presenters are once again thinking internationally, including bringing artists and ensembles to the U.S. as soon as this summer. Which means, of course, we need to check in on the landscape of artist visas.

WARNING: This could all have changed by the time you read this, so read quickly!

Things have actually already shown signs of improving since Lord Voldemoron was defeated. Among them, USCIS processing times for visa petitions have shortened to approximately 1 to 3 months and a number of the King Babycoward’s more draconian policies have been reversed. However, a number of challenges still remain, not least among them is that the COVID travel ban remains in place. As a reminder, this means that anyone traveling to the U.S. from the European Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, and Vatican City),  United Kingdom, Ireland, Brazil, South Africa, or India cannot enter the U.S. without EITHER traveling to a country not on the list and quarantining there for 14 days before entering the U.S. OR qualifying for an exception to the ban.

There are various exceptions for immediate family members of U.S. Citizens spouses, medical professionals, and people coming to help fix roads and bridges. However, there are no automatic exceptions for artists. For artists to get a waiver from the ban and enter the U.S. without first having to quarantine in a non-banned country, they must qualify for the “catch-all” exception of showing that it is in the “national interest” for them to be allowed to do so.

Getting a National Interest Exception for an Artist

It is not meant to be easy to get an artist approved for a National Interest Exception (“NIE”). It’s called a “exception” for a reason. However, as with everything the U.S. touches in the realm of immigration, it’s quagmire of inconsistencies.

Requests for NIE’s are submitted to the U.S. Consulate in the country where the artist is either a citizen or a permanent resident. Every consulate has its own policies and procedures for how you submit the request and how they determine whether an artist does or does not qualify for an NIE. There are no standard rules or procedures. In fact, at the moment, a few U.S. Consulates, including Vienna, have incorrectly taken the position that artists are not eligible for NIEs at all! Others just make up the rules by cutting the head off a chicken and seeing where it flops down on a giant procedural bingo card. This is frustrating…nay, maddening. However, this has always been the case. Historically, regardless of who is in charge or who controls Congress, there has never been any consistency, predictability, or reliability in the entire process of obtaining artist visas. It ebbs and flows. Nothing new to see here.

Based on the NIE requests we have had approved, the consulates we have been dealing appear to require the following:

(a) a major or significant artist;

(b) entering the U.S. to do something important for a major or significant U.S. venue or presenter; which

(c) cannot be done without the artist; and which

(d) would cause dire economic or institutional consequences if the concert or event were to be cancelled.

In short, the ideal candidate for an NIE would be a music director, stage director, soloist, or major artist entering the U.S. for a specific high-profile performance for a specific high-profile venue that is either part of the venue’s or organization’s much heralded return to live performances or which will be raising significant funds for the venue or organization after a year of being closed. In other words, the artist’s presence in the U.S. must be critical to the economic survival of the venue or presenter or the venue or presenter’s community. This means, for example, that a musician entering to perform as a member of an orchestra (as opposed to a soloist) or to perform at a festival with multiple concerts and events (unless the artist is a headliner) is highly unlikely to be approved for an NIE…regardless of who you know, what contacts you have, or how badly the artistic director stamps their feet.

If you plan to submit an NIE request, here are a few important things to keep in mind:

  • In addition to providing a copy of the artist’s passport and O or P visa, you will need to provide (1) a letter from the venue or presenter (NOT THE MANAGER OR AGENT) explaining why the artist is so significant to whatever it is they need them to do that the organization’s future will be imperilled if the event or performance is cancelled and (2) A letter from the artist (AGAIN, NOT THE MANAGER OR AGENT) explaining why the artist cannot travel to a country not on the banned list and quarantine there prior to entering the U.S. (Most often, it will be either because the artist has other professional commitments in the country or that other travel bans prevent them from easily being able to go to other countries.) I also include background information on the artist as well as the venue or organization.
  • A request can only be submitted to the U.S. Consulate in the country where the artist is either a citizen or permanent resident.
  • The artist must be physically present in the country at the time the request is submitted.
  • Once the request is submitted, the artist cannot leave the country and, if the NIE is approved, must fly direct from that country to the U.S. (Connecting flights in the U.S. are fine, but the artist cannot connect through another country on the COVID ban list.)
  • A request cannot be submitted earlier than 30 days prior to the date the artist needs to enter the U.S.
  • At the time the request is made, the artist must have confirmed airline tickets.

Once an NIE request has been submitted, some consulates will get back to you within 48 – 72 hours, others will take a few weeks, and others may not respond at all. Recently, London has been getting back to me within 24 hours—but, as you will see below, will find other ways to thwart your plans.

What If An Artist Has Been Approved For An O or P Visa, But Has Not Yet Received the Visa?

 

At the moment, most if not all consulates are either closed or are not accepting routine visa applications. In London, for example, there are currently no visa appointments available until October 2021. If an artist does not already hold an O or P visa, then at the same time they submit an NIE Request they will also need to request an emergency appointment. If the NIE is approved, then the artist will be given an emergency appointment date to come to the consulate and apply for their visa. If not, then the artist will need to wait until the consulates re-open. (I have some artists who have been approved for O or P visas, but have been waiting over a year to be able to apply for them.)

LONDON CONSULATE WARNING: I recently had an NIE approved by the U.S. Consulate in London for a UK Violinist who had been approved for an O-1B visa, but need to apply for the actual visa stamp. He was given an emergency appointment, went in, was told everything was in order, and that his visa would be issued asap…and after 3 weeks still had not received his visa. So, he had to cancel his U.S. date regardless of having obtained an NIE. (And, yes, we tried all of the available back channels—all of which proved to be backed up.)

Can Orchestras and Ensembles Get NIEs?

Anything is possible, but this is highly improbable for a number of reasons. First, NIE requests are submitted and approved on an individual basis. You cannot submit an NIE request for an entire group. A request would need be submitted on behalf of each musician and each person would need to qualify separately–which would not only prove unwieldy, but runs the risk of not everyone getting approved. Second, as you can’t apply for an NIE more than 30 days in advance of the travel date and you must have booked flights at the time you submit the request, you would have to incur the costs of air travel for an entire orchestra before even knowing if you can travel. And, third, there is the issue of getting emergency appointments for everyone when it’s hard enough to get an appointment for a single individual.

When Will The Ban Be Lifted?

Excellent question. I have no idea. Seriously. No idea. Nada. Nix. Please stop asking me. My expectation, based on nothing more than my intuition and speculation, neither of which have ever proven that reliable, is that rather than lifting the ban entirely, a new exception will be created for people who are vaccinated. But, seriously. I don’t know. There are a lot of rumours. I’ve heard them too, but please don’t rely on any of them. When these things are announced, we will all learn at the same time. Maybe by the end of May. Or not.

The only good news, such as it is, is that, unlike in the days of Uncle Scam in which the COVID ban was used purely as a tool to frustrate immigration, the current status of ban is based solely on COVID with no ulterior motives. Also, as the ban is causing significant economic harm to many different sectors of the U.S. economy, there is significant pressure to get it lifted or amended as soon as possible. In other words, we are not alone and a lot of pressure is being put on the Biden administration to lift the ban immediately.

What Will Happen When The Ban Is Lifted?

Once the COVID ban is lifted (or additional exceptions are created for those who are vaccinated), then the consulates will eventually fully re-open. However, the U.S. State Department has already issued warnings to expect delays as they work through a backlog of over a year of cancelled appointments. Those who had their appointments cancelled in 2020 will be given priority. I suspect this will make emergency appointments harder to qualify for, but this is all quite fluid. Again, no one knows. With luck, the expectation is that consulates will be allocated new staff as well as additional funding to expedite the backlog. Again, as there are many industries being impacted beyond the performing arts, all with more money and political influence, there is significant pressure to facilitate international travel as quickly as possible. Everything from tourism to trade depends upon it. Nonetheless, the artists, venues, and presenters we are working with are all being advised to have contingency plans and flexible expectations at least through the rest of 2021.

What about USCIS? What Are They Up To?

While we are joyously seeing fewer RFEs, officers loyal to the ploys and prejudices of the Tangerine Anus remain. As a result, we are still seeing a few spiteful RFEs asking that artists who remained in the U.S. during 2020 produce paystubs to prove they were not on unemployment and were not in violation of their O or P status. But maniacal spitefulness, a deranged sense of paranoia, and the intellectual capacity of a peeled grape have always been among the qualities USCIS seeks when hiring officers, so, again, nothing new to see here.

In summary, things are improving. The performing arts are coming back the way we all know they would. The industry might look different, but a beach always looks different after a hurricane sweeps through. Eventually, the sun comes out and we all go back in the water. We just may need to wait a bit longer for the waves and rip-tides to subside.

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GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

VISIT OUR NEW WEBSITE: ggartslaw.com

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THE OFFICIAL LEGALESE:

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 or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.

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