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Can A Union Walk Away With My Contract?

Tuesday, November 29th, 2016

By Brian Taylor Goldstein, Esq.    

Dear Law and Disorder: 

Is it legal that a presenter can put “strike, lock-out or other labor controversy (including, without limitation, the picketing on the theater by representatives of any labor union having or claiming to have jurisdiction over theater’s employees” into a force majeure clause? I mean, it doesn’t seem fair that an artist that is ready, willing and able to perform should be held “hostage” to a theatre who cannot strike a deal with its stagehands, right? I can’t believe this is a commonly accepted practice. Surely, holding out for a better contract (on either side) is a willful action and the responsibility of those parties to solve so they can fulfil their commitment to the artist, yes?

When you ask “is it legal” do you mean “is it a crime?” No. Assuming you’re not taking out a contract on someone’s life, then anything two parties negotiate and agree to in a contract is perfectly “legal”

Is it common? Absolutely, particularly with professional theaters or any large presenters or theaters who have collective bargaining agreements with various performing arts unions—such as most major orchestras and large concert halls and performing arts centers. In fact, I’ve never seen an engagement contract with a major orchestra or presenter that didn’t have such a clause.

It is appropriate? In my mind, yes. If union stagehands or artists make unreasonable demands and walk out, that’s not always the theater’s or orchestra’s fault. On the other hand, compromise on the party of either party is not always a reasonable possibility at the outset. Neither party should be held “hostage” to the threat of a breach of contract to compel one side or the other to agree hastily to an ill-advised collective bargaining agreement. Regardless, a union or labor issue is almost always a force majeure event. I even include that in my own contracts.

Another consideration is that if the artists you represent are themselves a member of a union—such as a musician who is a member of AFM—then, as a union member, they will be prohibited from crossing the picket line regardless of what the engagement contract says. Indeed, I had a group that had been hired to perform with a major orchestra last year and tried the same approach you a posited—they presented themselves at the stage door claiming that they were ready, willing, and able to perform. However, it turned out they were also AFM members and AFM said that they may be ready and willing, but were not “able.”

Is it fair? That depends on how you feel about the role of unions in the performing arts. I will say this: I have seen just as many artists shoot themselves in the foot as I have presenters try to pass off the losses of their own mismanagement and poor business planning onto their artists. And I know from my own experience that artists are not always their own best representatives in the marketplace. Nonetheless, I, for one, have never believed that the Arts are well served by the same “winner take all” approach that one finds in other industries.

Do you have to agree to it? No. You never have to agree to anything you think is unfair or unreasonable. If the issue is important enough to you and your artist, you can always either walk away or try and negotiate something all parties can accept. Just like a union.

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For additional information and resources on this and other legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Acts of God, Agents, Artist Management, Contracts, Law and Disorder: Performing Arts Division, Unions | Comments Closed

Who Has To Pay The Likes of ASCAP, BMI, Etc?

Thursday, February 18th, 2016

By Brian Taylor Goldstein, Esq.   

I haven’t found an example that matches the situation of a 501(c)(3) I am familiar with. They throw a once-yearly art festival that spans a weekend (2days). They don’t charge the public any admittance. They raise money by charging fees for booth (10×10) spaces for (visual) arts vendors to sell their merchandise. They raise money for: their operating expenses, student art scholarships, member art scholarships, honoraria for program presenters at meetings, a fund for a permanent “home” for the 501c3 where they can hold meetings and store various gear for the meetings between times. They also have an open air music stage at that festival where local musicians perform. The musicians are paid under $150.00 for a 2 hour performance that includes 5 minutes each for set-up, a break, and stage clear-off. Most, but not all of the pieces performed are written by the performers. The “audience” is anyone who wanders by and stays to listen for a while. So, who, if anyone, has to pay fees to the likes of ASCAP, BMI, etc.?

It sounds like the 501(c)(3) organization in your scenario is trying to raise money for some very admirable and worthy goals: art scholarships, arts education, and even providing a place for local musicians to perform. In fact, these goals sound so worthy that I’m sure you wouldn’t object to the organization using your house for meetings or taking your car whenever they needed it to transport students to art classes, all without your permission and without paying you any fees. While you might be more than willing to donate your home or car on occasion, my suspicion is that you’d at least like to be asked first. As a general rule, the involuntary donation of other’s property without their permission—even if it’s for a really good cause—is also called “stealing.”

A musical composition—just like a home or a car—is considered property. It is no less valuable—indeed, I would argue, it is of greater value—than anything else you are required to pay for that has a physical price tag attached. A musical composition belongs to the composer who wrote it and/or the composer’s publishing company. Under U.S. Copyright Law, whoever owns a musical composition also has the absolute right to control and determine all uses of the property—this includes the right to perform the music live, record the music, play a recording of the music for the public, change the lyrics, make arrangements, or just about anything else you can think of to do with music; including the right to determine whether or not to donate the use of the composition for a worthy cause or project.

This means that any time a musical composition is performed live or a recording of the composition is played—whether it’s at a theater, concert hall, or out-door street festival (for-profit or non-profit)—“someone” needs to obtain the composer’s permission and, in most cases, pay a usage fee called a “Performance License.” ASCAP, BMI and SESAC are not roving bands of brigands waiting to pounce on unsuspecting non-profits who are merely trying to promote the arts. Rather, these organizations are trying to promote the arts too—primarily by reminding people (including other artists) not to take music for granted as a valueless commodity. ASCAP, BMI, and SESAC are organizations that represent composers, issuing performance licenses and collecting fees on their behalf.

If musicians are performing original music they composed themselves, then they can certainly agree to perform their own music for free. That can be a condition of hiring them to perform in the first place. However, if a musician or band is playing (“covering”) music composed by others, then just because the musicians agree to perform for a reduced fee, or even for free, doesn’t mean that the composers have allowed their music to be performed for free as well. A performance requires a performance license.

As for whose responsibility it is to obtain the necessary license, its legally everyone’s responsibility. If an unlicensed song is performed at a festival (even a free festival), then the U.S Copyright Act allows all the parties involved in arranging the performance—the artist as well as the venue or festival, and sometimes even the promoter, producer, or booking agent—to be liable for copyright infringement. So, while you could require the musicians to obtain their own licenses with regard to any music they are performing which they have not composed themselves, in my opinion that is a foolish policy. Why? Because most musicians will simply not bother and elect to take the risk of not getting caught. However, if they do get caught, it is the venue or festival who will be liable as well. It doesn’t matter that the festival may have required another party to obtain the license. That simply entitles the festival to sue the other party. The festival itself will remain liable to the composer.

So, in your case, while there are a number of factors that can determine the cost of obtaining performance licenses—the size of the venue, the price of tickets (or lack thereof), the number of performances, etc.–ultimately, it’s in the festival’s or organization’s best interest to ensure that the necessary permissions and licenses are obtained. While it might be tempting to proceed under the expectation that no one will get caught or the publishers and copyright owners will not sue small artists or struggling non-profits, that’s the same as robbing a bank and hoping the police won’t find you. Not to mention, in an industry where so many purport to operate under the noble purpose of promoting the value of art and artists, I can’t imagine the rationalization of stealing it for any purpose, regardless of how noble.

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For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Venues | Comments Closed

International Touring: A Report From The Front Lines

Thursday, November 19th, 2015

By Brian Taylor Goldstein, Esq.

As the U.S. Legal Advisor to the International Artist Managers’ Association (IAMA), I’ve been asked to prepare an update on a variety of current issues involving international touring at the next membership meeting in London on November 27, 2015. Not only do I adore IAMA, but as this would provide a lovely excuse for my wife and I to avoid having to spend Thanksgiving with either of our families, I was more than happy to agree. Robyn Guilliams and prepared this report, I thought I would share it with all of you…

Visa Stercus

1.  USCIS is presently taking a minimum of 8 – 10 weeks to process visa petitions at both the Vermont and California Service Centers. This means that, as of today, if you need to have an artist enter the U.S. any earlier than March 2016, you need to pay the additional $1225 for premium processing. (The official visa processing times that USCIS posts on its website have always been purely propaganda and should always be disregarded as such.)

    • As a reminder, visa petitions can be filed up to one year in advance of the performance date.

2.  For those of you who have Canadian musicians eligible for P-2 visas, we are receiving reports that Canadian AFM is experiencing a backlog in preparing filing petitions. This is in addition to the current USCIS processing time of 8 – 10 weeks.

3.  I’ve said this before, but the message not getting through, so its worth repeating. ARTISTS CANNOT DO ANYTHING IN THE U.S. ON A TOURIST VISA OR ESTA (Visa waiver) STATUS!!  Please stop listening to the colleges, universities, and festivals that tell you otherwise. They have nothing to lose other than perhaps having to find a replacement artist. On the other hand, I have recently learned of two artists—one from Germany and the other from Spain—who have had their ESTA status permanently revoked because they tried to enter the U.S. in ESTA status to perform in the U.S. Both artists had entered multiple times in the past and one were merely entering to “perform” a master class.

    •  It doesn’t matter whether an artist is paid or unpaid, whether the concert is free, or whether the performance is for educational purposes. They must have an appropriate visa—most often an O or P visa. United States Immigration Officers are taking this very seriously.

4.  In preparing visa petitions, please start collecting and providing the evidence USCIS wants as opposed to giving them what you have lying around in your press package. The days of being able to supply a bio and a few press articles are long gone and we are seeing more and more visa denials and delays because of this.

    •  I recently, and with much regret and sadness, had to advise a client to re-cast a role because the artist’s European management was simply refusing to cooperate in our efforts to obtain a visa for the artist. (In case that manager is reading this…no, USCIS will not “just google the artist to find out how famous he is!”)

Tax Stercus

1.  For those of you waiting to receive a refund check from the Internal Revenue Service (IRS) for a non-U.S. artist who has had 30% withheld from their gross engagements fees and are due a tax refund, please be advised: the check is NOT in the mail, and won’t be for the foreseeable future. The IRS has added an extra layer of scrutiny to nonresident tax returns involving refunds. Aside from the usual 2 to 3 month processing time, there is a second review to be sure that everything on the 1042-S form is accurate and complete.  If the IRS senses ANYTHING off, the taxpayer will receive a letter asking for more info. To be fair, the IRS has announced that it will be paying interest on all overdue refund checks. To be practical, it doesn’t matter how much interest they offer to pay if, in fact, they never issue the refund.

    • Bottom Line: There is currently a very good chance that if 30% is withheld from an artist’s engagement fee, the artist will not get that money back…or, at least, not for the foreseeable future. Please plan cash flow accordingly.

2.  A Central Withholding Agreement (CWA) is still the best way of avoiding or reducing the mandatory 30% withholding required from all engagement fees for non-U.S. artists. To be eligible for a CWA, among other requirements, an artist must have filed a U.S. tax return for each prior year in which they have ever performed in the U.S.– even where no tax was owned. If an artist has not filed past U.S. tax returns, he or she will be required to file them as a prerequisite to obtaining a CWA. Unfortunately, we are seeing a sharp increase in the instances where filing such past tax returns is triggering an IRS audit in which they are requesting documents and records from the artist’s world-wide income.

    • In this one particular area, the IRS has displayed a remarkable degree of efficiency in identifying artists who have simultaneously made the least amount of money and kept the least amount of records to prove it.

3.  Obtaining Social Security Numbers (SSNs) and Individual Tax Payer Identification Numbers (ITINs) continue to be a challenge. While SSSs are not any easier for an artist to obtain, they have not become harder. ITINs, on the other hand, have become increasingly difficult, if not impossible, to get. Despite both staffing and budget cutbacks, the IRS has been requested to scrutinize ITIN requests more closely—particularly with regard to proof of identity. For most non-US residents, the most obvious and best proof of identity is a copy of their passport. However, the IRS lacks the resources and training to evaluate how to tell legitimate passports from forged ones. As a result, the IRS is now only accepting copies of passports that have been certified by the actual agency that issued the passport. However, even when this is provided, we are seeing the IRS send notices requesting that the actual, physical passport be sent to them instead. DO NOT DO THIS! You will never see that passport again!

    • There IS one option for some Europeans:  There are IRS offices located in the U.S. Consulates in Paris and London. One can go to these offices and request an ITIN in person (with an original passport, which the IRS will review and return on the spot.)  HOWEVER – one can obtain an ITIN only if one has an “immediate tax need”, such as filing a return. So, if requesting an ITIN in the Paris or London Consulates, one must also bring a completed tax return in hand, ready to file.

4.  We are seeing a large number of U.S. presenters–especially those based at colleges and universities—insisting that non-U.S. artists are legally required to have either a SSN or ITIN in order to perform or get paid in the U.S. Please be advised: There is no such law! While such numbers may make book keeping and accounting easier for the presenter, there is no law that requires an artist to have either one. Not only are SSNs and ITINs not proof of work authorization, but as we addressed above, many artists will be unable to get them in advance—if ever.

5.  Canada requires 15% withholding for gross engagement fees of non-Canadian performers performing there (similar to the 30% withholding requirement in the U,S.) Canada Revenue allows performers to file a waiver/reduction request to reduce/waive the withholding (an R-105 request). On their website, Canada Revenue indicates that the deadline for filing such a request is 30 days prior to the first payment due.  However, it’s taking them MUCH longer to process the requests. So, we are recommending that you file your request with them AT LEAST 60 days prior, or earlier, if possible.

General Travel Stercus 

1.  There is nothing new to report with regard to the ban on bringing musical instruments into the U.S. that contain ivory or other protected materials. United States Customs and Border Patrol isn’t strictly enforcing this with any degree of regularity. However, if any orchestras are touring and don’t want to take the risk, we are recommending that they contact Heather Noonan (hnoonan@americanorchestras.org) at the League of American Orchestras (http://americanorchestras.org) who is among the leading and most effective legislative arts advocates in the U.S. and is happy to talk to them about the “Instrument Passport” process.

    • The League and others are continuing to lobby for specific amendments, including exemptions to the rules for “personal effects” (which would include carry-on musical instruments).

2.  There has been some recent concern about Amtrak, the U.S.’s ersatz rail service, implementing a new policy requiring additional seats to be purchased for oversize musical instruments which cannot fit into overhead compartments. To date, this policy has been posted, but not enforced. We are recommending that artists and ensembles that intend to use Amtrak to travel to engagements within the U.S. check with an Amtrak representative in advance of the tour…and then be prepared for whatever they are told in advance to then be either incorrect or disputed by Amtrak at the actual time of travel.

Other Stercus

1.  When negotiating fees for U.S. engagements, please remember to specify the currency in which the artist is to be paid, including exactly how and when the exchange rate is to be calculated. We are seeing an increased number of misunderstandings over this point.

    • At the same time, use this as an opportunity to clarify any other costs or deductions (such as taxes, visas costs, hotel, travel, etc.) which either are or are not to be included as part of the engagement fee.

2.  Too many people are still relying on general, vague, boilerplate, or unspecific contractual language to take the place of actual negotiation. Do not rely on the misguided belief that there are standard legal terms and procedures that magically govern engagements and bookings when words fail. If you want something, or don’t want something, say something—or, preferably, write it down.

3.  When dealing with performances of new works or contemporary music, bear in mind that licensing laws differ. What’s in the public domain in Europe may not be in the United States. Even a re-arrangement or re-orchestration may not be permissible in certain countries.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Taxes, Touring, Visas | Comments Closed

When Is A Plumber Worth More Than A Violinist?

Thursday, July 9th, 2015

By Brian Taylor Goldstein, Esq.   

We spent a lot of money making a CD to promote our orchestra. Now the composer’s publisher wants mechanical royalties. I just don’t understand why I have to pay mechanical royalties for a CD I am not selling, just giving to donors. Doesn’t the Composer want people to listen to his music?

Does your orchestra sell tickets to its concerts? Why? Don’t you want people to come and listen to the music?

While everyone in the performing arts end of the entertainment industry appreciates the importance of music, not as many appreciate or understand its value. In fact, many don’t like discussing commercial or business concepts like “value” at all. However, an artist’s time and talent is the artist’s service. It’s no less of a commodity that any other service like a plumber or electrician. While many would argue, and I would agree, that an artist is worth even more, when a pipe once burst in my house in the middle of the night, I was far more relieved to see a plumber show up than a violinist!

Whether a musician’s performance is enjoyed live or on a recording, the musician needs to be paid for providing his or her talent. Musicians have bills to pay just like everyone else. For the same reason, when a composer’s composition is performed, either live or on a recording, he or she needs to be paid for providing his or her talent in creating the composition in the first place. While it’s true that some composers receive commissions to create a work, not all do, and a commission fee only pays for the creation of the work itself. Just like an author gets a royalty every time her book is sold and a playwright gets a royalty every time his play is produced, a composer gets a royalty every time her music is performed or a recording made of the performance. When a composition is performed, the performer must pay a performance royalty, most often by obtaining a performance license from ASCAP, BMI, or SESAC. When a composition is recorded, the performer must pay a “mechanical royalty” (an outdated term for a “recording royalty”) directly to the composer or the composer’s publisher. The mechanical royalty is based on the length of the composition and how many copies are made of the recording of the performance of the composition.

I appreciate your frustration in having to pay mechanical royalties for CDs that are given away, but that’s like saying that musicians should be paid less if a concert is free or only based on the number of tickets sold. Whether or not you choose to sell the recordings does not change the fact that you recorded a performance of the composer’s composition. Just because you want to purchase a television to donate to an orphanage doesn’t mean that Best Buy is going to let you walk out of the store with it for free.  While many artists do graciously give freely of their time and talents in promoting the performing arts, that decision is not yours to make for them. Largesse and munificence should be offered, never presumed. If yours is the first recording of this particular work and the composer is not already widely performed and listed to, I bet the composer would consider receiving a number of free CDs in lieu of mechanical royalties.

__________________________________________________________________

For additional information and resources on this and other GG_logo_for-facebooklegal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

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Posted in Contracts, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Presenters, Publishing, Recordings | Comments Closed

Is It Still Illegal If I Don’t Get Caught?

Thursday, April 9th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

Our organization has engaged a foreign musician whose European agent is balking at the artist having to obtain an O-1 visa that we know he needs. We want to do this right, so I’m getting my ducks in line to tell him no and part of making that case is knowing what potential penalties the organization might face for allowing him to work without the proper visa. I hope there is an easy answer that you can give me off the top of your head—or maybe there is something you can refer me to that would provide the answer.

A lot of artists and their managers balk at the U.S. visa process for artists. I understand. It’s illogical, inane, impractical, unpredictable, arbitrary, and expensive…and those are just the high points. Nonetheless, it’s the one we’re stuck with.

The “easy answer” is simply that “it’s illegal.” Artists are not permitted to perform in the U.S. without an artist visa (most often, either an O or P), regardless of whether or not tickets are sold, regardless of whether or not the artist is paid or who pays the artist, regardless of whether or not the performance is for a 501(c)(3), regardless of whether or not the performance constitutes “training” or is “educational”, and regardless of just about any scenario you can conceive of. What you are really asking is: what are the consequences for breaking the law and what are the odds of getting caught?

Both United States Citizenship and Immigration Services (USCIS) and United States Customs and Border Patrol (USCBP) have been increasingly scrutinizing artists over the last year or so. As a result, artists who have previously managed to perform illegally in the U.S. in the past without the proper artist visa are now being caught with ever greater regularity—resulting in significant consequences for both the artists as well as the presenters and venues who allowed them to perform. Last year, a violinist who had been performing in the U.S. for the past five years without a visa was caught and is now banned from the U.S. for three years. I am aware of a conductor who was turned away at the border when the immigration official discovered that he was coming to perform by “googling” his name. Another artist was advised by his management to enter the U.S. on a visitor visa to perform a promotional tour for a new album, was detained at the airport for 5 hours, and then refused entry. His ESTA/Visa Waiver privileges have been revoked and he must now visit a U.S. Consulate any time he wants to enter the US—even as a visitor. Even more significantly, a management company was caught submitting a fraudulent visa petition to USCIS and is no longer allowed to serve as a petitioner for its own artist’s visas. Large presenters, venues, and festivals are being audited with increasing regularity to determine whether or not all artists have proper artist visas.

The consequences for employing an artist illegally are the same as for any employer who employs an illegal alien. Theoretically, this can include anything from fines and economic penalties to criminal prosecution. However, from a practical perspective, the Department of Homeland Security and Department of Justice lack the resources to prosecute and investigate every venue or presenter who facilitates an illegal performance. This is why most enforcement tends to be focused on the artist at the time of entry. After the artist has entered the U.S., it’s much less likely that DHS would discover the performance unless there is an audit or the performance is reported to them. Audits are much more likely to occur either in the case of larger institutions or employers who already employ foreign workers in other capacities or in the case of prominent or significant venues or performances which are more likely to garner media attention.

In short, whenever a venue contemplates employing an artist without a proper visa or an artist contemplates performing with a proper visa, it’s akin to running a red light. It’s illegal under any circumstances. Whether or not you get caught depends on whether or not there is a camera or cop at the intersection. Whether or not it’s advisable depends on the circumstances and how lucky you feel.

If cost and inconvenience is a factor, and the artist has other U.S. engagements, a potential solution might be an itinerary-based visa covering multiple engagements. I am increasingly and puzzlingly seeing artists obtaining multiple visas rather than coordinating them amongst all of the artist’s presenters. There is no reason for this other than the visa process being all too often delegated to the “new kid” in the office.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Replacement Woes

Thursday, February 26th, 2015

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We are a dance company who is going to perform in March in the United States. We gave the list of names for Visa purposes last September to the venue. Now we have some changes, we have to replace two technicians who are essential for the show. They tell us there is a law that says that technicians cannot be replaced. Only artists. But how are we going to travel without our light and set technician? Is there any exception? Thank you for your news, we are quite desperate with this situation. Only if we could have one technician at least this would help. The thing is that we want to replace the technical director by another one who is unfortunately not in this visa list that the venue got for us.  If you could just confirm me that there is really nothing to do, as they said to me (they say it is a law who does not allow to replace the technicians)

I am happy to shed some light on this, though you may quickly want me to switch it off.

Members of dance companies, theatre companies, orchestras, or any other group, band, or ensemble are required to have P-1 visas to perform in the United States—yes, even if no tickets are sold and no one is paid! For the purpose of obtaining such visas, USCIS divides the members of such companies into two groups: performers and non-performers. All of the performers—dancers, musicians, singers, actors, etc—must be listed as the beneficiaries on a P-1 visa petition. All of the non-performers—choreographers, directors, tour managers, lighting and sound technicians, stage managers, etc—must be listed as beneficiaries on a P-1S visa petition.

Once a visa petition has been submitted to USCIS, no changes, corrections, or substitutions can be made to either the P-1 Beneficiary List or the P-1S Beneficiary List without filing an amended petition (which also means paying a new filing fee.) However, once a petition has been approved, if a performer needs to be replaced, then a U.S. Consulate has the authority to accept substitutions and issue a visa to one or more new performers in place of the ones listed on the original P-1 Beneficiary List provided (1) a visa has not already been issued to the performer(s) being replaced and (2) at least 75% of the total number of performers after the substitution are made will have been performing together for at least a year.

Substitutions at a U.S. Consulate are not permitted for anyone listed on the P-1S Beneficiary List. Should technicians, directors, choreographers, crew, or anyone listed on the original P-1S Beneficiary List be unable to travel or need to be replaced, the only mechanism by which to achieve this is to go back to USCIS and file an amended P-1S Petition (which also means paying a new filing fee and obtaining a new union consultation). Similarly, no substitutions are permitted for O-1 beneficiaries, O-2 beneficiaries, or in any other visa category. Everything requires either a new or amended petition.

One solution is to add additional names of potential technician and crew substitutions as part of the original P-1S Beneficiary List at the time the P-1S visa petition is filed. If it turns out you do not need the substitutions, then these folks simply do not have to apply for their visas. However, should you need them for any reason, their names will already be on the approved P-1S Beneficiary list and they can proceed directly to the U.S. Consulate and apply for their visa. This is yet one more reason why I always recommend that, when planning or booking any foreign tour, issues such as visas, taxes, and related costs and timing should be factored in at the outset and not left to last minute scrambling and panic. What’s that I hear? Crickets and whistling wind?

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal, projet management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal, project management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

How Much Is That Artist In The Window?

Thursday, April 24th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

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

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

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

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

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

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

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

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

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

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Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Recordings | Comments Closed

What Do You Mean I Need To PAY For Music?

Thursday, January 23rd, 2014

By Brian Taylor Goldstein, Esq.

Greetings,

I have recently been contacted by ASCAP asking for fees based on music played by live musicians. Are we required to pay if we do not pay the musicians? Any musician who plays at the location is not compensated for their efforts.

Is anyone else who works at or for your location compensated for their “efforts”? Waiters? Staff? Vendors or suppliers? Do you have to pay for liquor if you give it away? Who pays for the electricity or the heat? People can always agree to donate goods and services, and many do. However, as a general rule, society discourages the involuntary donation of other’s property without their permission—even if it’s for a really good cause.

A musical composition—just like a computer, a watch, or a car—is considered property. It is no less valuable—indeed, I would argue, it is of greater value—than anything else you are required to pay for that has a physical price tag attached. A musical composition belongs to the composer who wrote it and/or the composer’s publishing company. Under US Copyright Law, whoever owns a musical composition also has the absolute right to control and determine all uses of the property—this includes the right to perform the music live, record the music, play a recording of the music for the public, change the lyrics, make arrangements, or just about anything else you can think of to do with music. Any location where music is performed—whether it’s a theater, concert hall, or other venue (for-profit or non-profit) where music is performed live or whether it’s a restaurant or store that plays recorded music for their patrons’ listening pleasure whilst shopping or eating—needs to obtain the composer’s permission and, in most cases, pay a usage fee called a “Performance License.”

ASCAP, like BMI and SESAC, is an organization that represents composers and helps them by issuing performance licenses and collecting fees on behalf of the composer. It helps locations, too, because, rather than having to contact every composer individually, you can purchase a performance license from ASCAP to cover all of the composers they represent. It’s like one-stop shopping. However, as they don’t represent every composer, most locations need to purchase licenses from BMI and SESAC, as well.

If your musicians are performing original music they composed themselves, then they can certainly agree to perform their own music for free. However, if they are playing (“covering”) music composed by other artists, then just because the musicians agree to perform for free doesn’t mean that the composers have allowed their music to be performed for free as well. If ASCAP contacted you, it’s because music is being performed in your location and ASCAP is trying to ensure that you have obtained permission from each composer they represent to have their music performed. While there are a number of factors that can determine the cost of obtaining performance licenses—the size of your venue, the price of tickets, the number of performances, etc.–ultimately, it’s your responsibility to ensure that the necessary permissions and licenses are obtained.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

 

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Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings, Venues | Comments Closed

Using Existing Recordings–Not So Fast!

Wednesday, April 10th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

A few weeks ago you wrote a great article about how to obtain a mechanical license when someone wants to record music. But what about using a recording that already exists? We would like to promote an upcoming concert at our venue by putting some recordings of the artist on our website. Since the artist gave us the recordings, are we ok?

Thanks…and no, you may not be ok.

Any time you want to use an existing recording of a composition, whether to put on your website, or as a soundtrack to a film or video, you will need to get permission (aka “a license)” from the composer (which often means contacting the composer’s publisher) as well as permission (aka “a license”) from the owner of the recording (which is often a record label.) That’s right, you may need to get two separate licenses! Why? Because copyright law creates a separate copyright in compositions and a separate copyright in the recording of a composition.

Just because an artist or an artist’s manager gives you a recording and gives you permission to use that recording, doesn’t mean that the artist owns the recording or has the rights to give. Even if it is a recording of the artist’s own original composition or if the composition itself is in the public domain, the artist may not own the recording. In which case, the artist cannot give you permission to use it, much less the artist’s manager.

Shortly after I posted the earlier blog you mentioned (The Mechanics of Mechanical Licenses, March 6, 2013), Peter Christ of Crystal Records Inc. (http://www.crystalrecords.com) sent me an email which exactly and accurately addressed this issue. He graciously agreed to let me post it here:

Your explanation was very clear and should help those who want to record music that is not public domain. However, it does not address the situation of a person who wants to use a recording already made, and on a record label, for their web site or their movie or other background music use. It should be made clear that the publisher needs to be contacted and ALSO the record label or other copyright owner of the recorded music.

We sometimes find out that our copyrighted recordings are being used as background music for films or on someone’s web site. This is not legal without our permission, and when it is discovered, the legal expenses can be very high for the perpetrator.

 

Some people want to do it right, and we frequently get requests for license to use our recordings for films, web, etc. We always appreciate that someone is honest and knowledgeable enough to request a license. However, in most cases, they do not realize they need a license both from the record company and from the publisher of the music. And in many cases, the music was recorded under an AFM contract and additional payment must be made through the union to the musicians on the recording. It should be pointed out that even if the music itself is public domain, the recording is most likely not, so permission from the record company, and possibly the union, is definitely needed. So the two minutes or so they want to use can get quite expensive.

Thank you for your excellent column in Musical America.

See, I don’t make this stuff up just to make your lives complicated! Bottom line, when it comes to music rights there are three rules: never assume—always ask—and know who to ask.

__________________________________________________________________

For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Presenters, Publishing, Recordings, Venues | Comments Closed

Independent Contractors or Employees: What’s In A Name?

Wednesday, April 3rd, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I hire musicians to perform, with me. Are they employees or independent contractors? I do not deduct taxes from what I pay them. Should I also make them sign a contract stating that they are independent contractors?

Contrary to what many believe, the distinction between who is an independent contractor as opposed to an employee is not as simple as merely making them responsible for their own taxes (and issuing them a 1099) or making them sign a contract or other document in which they affirm that they are an independent contractor. Like many legal relationships in the arts, “titles”, while not entirely irrelevant, do not in and of themselves carry any legal significance. Instead, determining whether a hired musician (or anyone you hire to provide services for you) is an employee or an independent contract requires an analysis of both state and federal regulations.

A person is an independent contractor only when free from control and direction in the performance of their services. As independent contractors are not covered by unemployment insurance laws, labor standards, or safety and health regulations, each state, as well as the federal government, have established various “factors” concerning the nature of the relationship between the parties which are used to determine whether or not a person is an employee or an independent contractor. These factors include how a person is paid, the amount of control you have over them, where their services are performed, how their services are performed, whether or not they are part-time or full-time, and even whether or not the person you are hiring is “incorporated” as a business or merely uses a “dba” and is a sole proprietor. All factors concerning the relationship between the two parties must be taken into consideration. No one single factor is controlling, nor do all factors need to be present to establish the nature of the relationship.

Not surprisingly, the “factors” can differ from state-to-state, with some states applying a more liberal analysis than others. Whereas, in some states, its almost impossible for anyone to hire an individual as an independent contractor unless the individual is incorporated as a C-corporation, S-corporation, or a limited liability company, other states afford more discretion to the employer to determine how to classify the people they hire. And the federal government has its own set of factors and guidelines. As a result, its not uncommon for the same person to be classified as an independent contractor for federal purposes (IRS, US Department of Labor, etc.) and an employee for purposes of state unemployment law and state taxes.

While all the various factors must be considered, in almost all cases the most significant factor is whether the party contracting for the services exercises, or has the right to exercise, supervision, direction or control over someone they hire. In the case of musicians and other performers: do you hire them to show up and perform their own music in whatever manner they want? Or do you direct them? Do you require them to attend rehearsals? Can they wear whatever they want or do you require specific costumes or clothing? In general, musicians or other performers who are paid to perform and are told/directed what to perform, how to perform it, where to perform, and what to wear are almost always considered “employees”, if not by the federal government, then by most state governments.

The only way to answer your specific question is to apply the applicable state and federal factors and guidelines to your specific circumstances. However, the New York State Department of Labor actually has specific guidelines and factors for determining whether performers are employees or independent contractors. You can find them at http://www.labor.ny.gov/formsdocs/ui/ia318.17.pdf Whether or not you are in New York, this is a good place to start.

_________________________________________________________________

For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Arts Management, Contracts, Employees, For Profits, Independent Contractors, Insurance, Law and Disorder: Performing Arts Division, Liability, Limited Liability Companies, Non-Profits, Venues | Comments Closed

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