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What In The World Is Going On With Artist Visas as of March 7, 2017?

Saturday, March 11th, 2017

By Brian Taylor Goldstein, Esq.

Here we go again…

On March 6, 2017, President Trump issued a new Executive Order regarding US immigration to replace the previous Executive Order of January 27, 2017. The new Order takes effect on March 16, 2017 and expressly revokes the January 27, 2017 Order (which had been subject to a court issued temporary restraining order anyway.) The new Order…

  • Bans immigrant and nonimmigrant entries for citizens of six designated countries – Syria, Iran, Libya, Somalia, Sudan, and Yemen – for at least 90 days beginning on March 16, 2017. The new Order no longer includes Iraqi nationals in the 90-day travel ban.
  • Exempts certain categories of people, including lawful permanent residents (US “Green Card” holders), current US visa holders, and dual nationals traveling on a passport from a country that is not one of the six designated countries.
  • Confirms that no visa issued before March 16, 2017 will be revoked as a result of the Order, and that any individual with a revoked or cancelled visa as a result of the prior, January 27, 2017 Order is entitled to a travel document for travel and entry to the US. After March 16, 2017, nationals from the list of six countries will no longer receive visas, even if they have been approved for visas by USCIS.
  • Allows for exceptions and case-by-case waivers.
  • Provides that after 90 days, the citizens of these countries can be permanently banned.
  • Provides that the Secretary of State, Attorney General or Secretary of the Department of Homeland Security can at any time recommend that additional countries be added to the list or taken off of the list.
  • Immediately suspends the Visa Interview Waiver Program (VIWP) and effectively mandates in-person interviews for all nonimmigrant visa applicants.
  • Mandates heightened vetting and screening procedures at all levels of the immigration process, particularly immigrants and non-immigrants “who seek to enter the United States on a fraudulent basis.”

While there are other portions of the new Order that impact other areas of immigration, our main focus is on how all of this applies to artists and the Performing Arts. In the case of the new Executive Order, its actually the last two provisions which will have the most widespread impact on foreign artists. Here’s what you need to know:

HEIGHTENED VETTING AND SCREENING PROCEDURES AT ALL LEVELS OF THE IMMIGRATION PROCESS:   

It means that when seeking an O or P visa, regardless of the nationality of an artist, artists  may encounter additional scrutiny and delays at each stage of the process—from  petitioning USCIS for visa approval, to consulates issuing visas, to Immigration Officer’s admitting artists at the border. This applies to artists from any country in the world.

Given that the new Order specifically requires heightened vetting and screening of those “who seek to enter the United States on a fraudulent basis”, there is going to be even  more scrutiny and less forgiveness than ever before with regard to artists attempting to enter the US on visitor visas (B-1/B-2) or through the Visa Waiver Program (“ESTA”). We are already receiving reports of artists being held and detained for hours  upon entering the US to determine whether or not they are performing. Even artists  entering as visitors for the purpose of attending a conference or “performing a showcase” are being pulled aside and, in many cases, being refused entry. Artists entering with B- 1/B-2 visas or through the Visa Waiver Program (ESTA) are being pulled aside the  moment they say that they are “entertainers”, “performers”, or “artists.”

When an individual is held and detained, they are subject to interrogation as well as  demands to inspect their cell phones, luggage, and personal items. Any refusals can be groups for a refused entry, which will then stay on an artist’s record impeding future  visas and travel.

Everyone needs to understand and accept that: Artists cannot perform on visitor visas  (B-1/B-2) or through the Visa Waiver Program (“ESTA”) regardless of whether or   not they are being paid and regarding of whether or not tickets are sold. Except in   the most narrowly defined circumstances, US immigration law has always defined  “work” as it pertains to artists, as any kind of performance. Artists denied entry on the basis of fraud, will have a denied entry on their record, impeding future visas and travel.

Some presenters and venues in the US—particularly festivals and academic institutions  continue to advise artists that O and P visas are not required if an artist is not being paid  and/or if the performance is part of a training program. This is incorrect and always has been.

In addition, while artists with O and P visas, on the average, seem to be experiencing less trouble, even O and P visa holders, as well as green card holders, are being held and  detained in instances where an Immigration Officer believes they are citizens of or traveling from ANY country in the world whom they believe could pose a threat to the  US.

In short (I know, too late), an Immigration Officer has the unfettered authority and  discretion to deny entry to any artist from any nationality for any reason. To what   extent this authority will be exercised remains to be seen.

THE SUSPENSION OF THE VISA INTERVIEW WAIVER PROGRAM (VIWP) 

While it has always been subject to the discretion of each consulate, the VIWP allowed consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant O and P visas within 12 months of expiration of the initial visa in the same classification. The VIWP has been used to waive the interview requirement only for travelers who have already been vetted and determined to be a low security risk and who have a demonstrated track record of stable employment and stable travel.

By suspending the program, all artists will be required to have a personal interview in order to receive a new visa regardless of when their last O or P visa was issued or whether or not they were previously allowed to receive a visa under the VIWP.

Until additional consular staff is hired, Order will place enormous burdens on U.S. consulates and embassies – particularly high-volume consulates – by increasing already extended interview wait times and processing times, wasting limited resources, and potentially decreasing the quality of consular interviews.

HOW DOES THE NEW ORDER IMPACT ARTISTS FROM THE 6 BANNED COUNTRIES (IRAN, LIBYA, SOMALIA, SUDAN, SYRIA, AND YEMEN?  

  • If the artist is a citizen of one of those countries, but already has a US visa or Green Card, then “officially” the ban does not apply to them. However, they should still expect “heightened vetting and screening procedures.” Also, once their visas expire, they will need to leave the US and will not be eligible for new ones.
  • If an artist from one of these countries has not yet been issued a visa by March 16, 2017, they are not going to get one. This includes students.
  • If an artist who is citizen of one of these countries is also a citizen of another country not on the list (for example, a citizen of both Iran and Canada), they WILL be allowed to receive visas and travel to the US PROVIDED the visa is stamped into the passport from the non-banned country and they only travel on the passport from the non-banned country. However, they should still expect “heightened vetting and screening procedures.”
  • The Order does not apply to artists who may have been born in one of the banned countries, but who are no longer citizens. However, they should still expect “heightened vetting and screening procedures.”
  • The Order does not apply to artists who may have been merely visited or performed in one of the banned countries. However, they should still expect “heightened vetting and screening procedures.”

WHAT DO WE RECOMMEND?

  •  All artists, regardless of nationality, she travel to the US with copies of their I-797 visa approval notices and maintain such copies, along with copies of their visas, on their person at all times while in the US. In addition to US Immigration Customs and Enforcement (ICE), state and local police can also demand proof of valid immigration status at any time while an artist is in the US.
  • Artists from all countries should not attempt to enter the US on visitor visas (B-1/B-2) or through the Visa Waiver Program (“ESTA”) except in the most narrow of circumstances. For example, performing at a booking conference (Arts Midwest, PAE, APAP, etc.) where only registered attendees are permitted to attend or performing at a competition or non-public audition are still permitted in visitor status. However, whether or not an Immigration Officer will continue to understand and accept these exceptions remains to be seen. In such instances, make sure such an artist is properly advised ahead of time and travels with extensive supporting evidence.
  • Plan well in advance when submitted visa petitions to USCIS and allow for extra time for US consulates to issue visas.
  • Review an artist’s prior travel to the US to make sure they have not engaged in any un-authorized performances and, if so, plan accordingly.
  • Artists should bring snacks when traveling into the US in case they are held or detained as there is no food available. We recommend beef jerky. But not hummus.
  • Plan and prepare, not panic.

As our office continues to address issues and implications on the front lines, we are relying upon the American Immigration Lawyers Association (AILA), The League of American Orchestras, the US Performing Arts Task Force, and other vital organizations who continue to monitor and report on the situation at all levels. AILA does not believe the new Order will withstand judicial scrutiny since the targeted countries are majority Muslim and the Order fails to provide evidence that nationals of the six countries pose a threat to national security.

As the rules can change at any time, it is critical that you consistently check with reliable sources (ie: not chat rooms or random google searches) for updates and developments before making any travel decisions, applying for visas, or booking foreign artists. We recommend:

1) www.artistsfromabroad.org

2) The USCIS website: www.uscis.gov

3) The US Department of State website: www.travel.state.gov

4) The US Customs and Border Patrol website: www.cbp.gov

5) The American Immigration Lawyers Association (www.aila.org)  

___________________________________________________________________

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. Questions will be answered ONLY in future blogs. 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 Law and Disorder: Performing Arts Division, Touring, Visas | 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: More Tales From The Front Lines

Thursday, December 10th, 2015

By Brian Taylor Goldstein, Esq.   

I realize there are other equally important issues out there than visas and international touring. However, in the wake of the recent terrorist attack in California, and as U.S. politicians and political candidates roll out a “Keep the Hate Alive” campaign, we are constantly receiving alarming updates from clients as well as from the American Immigration Lawyers Association of artists encountering new obstacles and challenges. Here are the latest changes and challenges you need to be aware of:

1.  A Visa Cannot Be Valid Beyond The Dates In The Approved Visa Petition

When a visa petition is approved by USCIS, it is approved for a specific classification period. When an artist then goes to a U.S. Consulate to apply for her or her visa, the visa issued is supposed to reflect the classification period of the approved petition. For example, if a violinist is approved for an O-1 classification period of August 1, 2015 to July 31, 2016, then the O-1 visa stamped into her passport should reflect an expiration date of July 31, 2016. If you examine an O or P visa, you will most often see the letters “PED” followed by a date. “PED” refers to the “Petition Expiration Date.” The PED date “should” coincide with the expiration date of the visa itself.

Unfortunately, some U.S. Consulates have erroneously been issuing O-1 visas that expire beyond the classification period of the approved petition—in some cases, O-1 visas have been issued for with a validity period of up to five years in the future! If this happens, your artist has not won the immigration jackpot! Under U.S. law, the maximum validity period of an O-1 visa for an artist cannot exceed three years. Moreover, it cannot exceed the classification period of the approved petition.

Recently, a prominent artist was turned away because she attempted to enter the U.S. under just such circumstances. A visa petition had been filed for her in 2014 and the petition was approved for an O-1 classification period of 8 months. However, the U.S. Consulate issued her an O-1 visa that did not expire until 2019. She and her management reasonably presumed that this meant she was free to use her O-1 visa until 2019 and no further visa petitions were required. Indeed, until recently, she had been entering the U.S. on the visa ever since 2014 without any trouble. Her past entries were the result of luck and inadvertence on the part of U.S. Immigration Officers at the port of entry. This will no longer be the case. All U.S. Immigration Officers will be scrutinizing all visas far more closely.

When USCIS approves a visa petition, it issues an I-797 Approval Notice with the specific dates of the approved visa classification period. If you or your artist ever receives a visa from a U.S. Consulate that expires beyond the dates of the classification period or beyond the PED date on the visa, ignore all dates beyond the PED date! Assume the visa expires on the PED date and do not use it for any work or travel beyond that date.

(For those of you who are actually interested in legal minutiae, there ARE, in fact, legitimate categories of 5 year O and P visas—they just don’t apply to artist categories. This is why the consulates can get easily confused.)

2.  All Artists Should Travel With A Copy of Their I-797 Petition Approval Notice

Another artist was recently detained at a U.S. airport for attempting to enter the U.S. on an erroneous “5-year O-1 visa.” Ultimately, he was permitted to enter only because he happened to have a copy of his I-797 O-1 Petition Approval Notice indicating that his upcoming U.S. engagement was within the approved classification period. However, he was reminded not to travel on his O-1 visa after the expiration date of the classification period.

Earlier this week, an artist was actually refused entry on his P visa because a U.S. Immigration Officer claimed that he needed to have a copy of his I-797 approval notice. The U.S. Immigration Officer was wrong. The artist had to fly home and be booked on a return flight to the U.S. the next day. Aggravatingly, but not surprisingly, when the artist flew back to the U.S. the next day with a copy of his approval notice, the U.S. Immigration Officer on that occasion didn’t even ask for a copy of the approval notice and the artist was admitted without any questions.

Also this week, a Canadian artist arrived in the U.S. with a copy of her I-797 approval notice (which is all that is required for Canadians) and was refused entry because the U.S. Immigration Officer claimed that she needed to have the original I-797 approval notice. The U.S. Immigration Officer was wrong on this occasion as well. Fortunately, a supervising officer was able to step in and resolve the matter so that the artist was ultimately able to enter.

Except for Canadians, artists and others are not required to travel with a copy of their I-797 petition approval notices—much less the original I-797 approval notice itself. Nonetheless, given that U.S. Immigration Officers have been placed on high alert (without always knowing exactly what they are looking for), we are recommending that all artists travel with a copy of their I-797 approval notice. Should any artist be asked for an “original” approval notice, he or she should calmly and politely ask to speak with a supervising immigration officer. More often than not, the supervising officers are better trained than the officers assigned to the inspection desks.

3.  Changes To The ESTA/Visa Waiver Program

Congress is in the process of adding additional restrictions to the Visa Waiver Program—the program which permits citizens of 38 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. This is often erroneously referred to as an “ESTA visa.” The term “ESTA” stands for “Electronic System For Travel Authorization” and is merely the registration process through which an individual indicates their intent to enter the U.S. without a visa. It is not a visa. This is important because artists are required to have a visa whenever they enter the U.S. to perform—even if they perform for free; even if no tickets are sold; even if they are performing for a non-profit; even if they are performing for a festival; or even if they are performing for a college or university. In short, performers can never enter the U.S. to “perform” under the Visa Waiver Program.

While most of the propose changes to the Visa Waiver Program should not have any impact on artists (unless the artist is from or has ever travelled to certain counties in the past 5 years), United States Customs and Border Patrol has already begun significantly seeking out artists who may be registering for ESTA and attempting to enter the U.S. on the visa waiver program with the intention of performing. We are getting almost daily reports of artists being stopped, refused entry, and having their ESTA/Visa Waiver privileges revoked for life!

I cannot emphasize this enough: any artist who attempts to enter the U.S. under the Visa Waiver Program for any purposes that involves actually performing does so at his or her own peril!

The only limited exceptions—and they are very narrowly construed—are competitions, auditions (including non-public showcases at arts conferences) and speaking (but not performing) at a college or university.

4.  There Continue To Be Significant Delays In Processing Visa Petitions  

USCIS is presently taking a minimum of 8 – 10 weeks to process visa petitions at both the Vermont and California Service Centers and there appears to be no end in sight to these delays. 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.)

On the bright side, dealing with international touring at the moment makes all those other topics we write about–cancellations, copyright infringement, taxes, commission disputes–a little less daunting.

__________________________________________________________________

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

Don’t Be Shy About BMI

Wednesday, March 25th, 2015

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

Hypothetical: A theatrical production company would like to produce a tribute musical production to a songwriter using only the songwriter’s music being performed by the cast of the production. The production would be held at a community theater which is not licensed by ASCAP or any licensing authority. The production company is unsure of its legal standing in carrying out this this production, and would like some general guidance. Where could they go to determine the requirements, if any.

If any? There are always requirements. I don’t know anything that doesn’t require something in return.

The production company has no legal standing to carry out this production without first obtaining the necessary licenses. If the songs are being performed as part of a “concert” style performance—that is, being sung without props or costumes and not as part of any plot, story, or narrative—then the producer would merely need to get a performance license from whichever one of the three major performance license agencies the songwriter belongs to: ASCAP, BMI, or SESAC. If the songwriter doesn’t belong to one of these (which is unlikely, but possible), then the licenses would need to be obtained from the songwriter directly.

It doesn’t matter whether or not the performance is being held at a community theater or whether or not the community theater holds a license with ASCAP, BMI, or SESAC. Performance licenses must still be obtained and either you (hypothetically, of course) or the theater must obtain them. There is no legal requirement that the venue be the one to obtain performance licenses. While its probably easier for the venue to obtain the licenses, it is the responsibility of all of the parties involved in a production—from the producer and performers to the venues and agents—to ensure that someone obtains the necessary licenses. Otherwise, everyone will be held responsible and, hypothetically, you don’t want that. Also, if this is a production which the production company envisions producing elsewhere, then it probably makes more sense for the production company to get the licenses itself.

If the production company wants to obtain the licenses, it would simply contact ASCAP, BMI, or SESEC directly. However, there are a few additional issues that could quickly change the simple to the sublimely complex:

1) If what you are “hypothetically” envisioning is not so much a concert “tribute”, but, rather, a “juke box musical” where the songs of one composer are used as the score of an actual musical drama or to tell a story (ie: Mamma Mia, Jersey Boys or Beautiful), then neither ASCAP, BMI or SESAC can help you. You will need dramatic licenses, not performance licenses. Dramatic licenses must be obtained directly from the songwriter or the songwriter’s publisher. If this is the case, you should be prepared for a resounding and thunderous “no.”

2) Even if you are planning a more traditional concert tribute such as Side-by-Side-by-Sondheim or An Evening of Andrew Lloyd Webber, many musical theater and other composers have restrictions preventing more than a specific number of their works from being performed as part of the same concert without obtaining additional rights directly from the publisher.

Nevertheless, contacting ASCAP, BMI and/or SESAC is always the best place to start on any licensing journey. Don’t be shy. They want to have their artists’ works get performed as much as you want to perform them. However, they also want to make sure their artists get paid, just like you do. Assuming, of course, that the production company expects to sell tickets, if any.

__________________________________________________________________

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 Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Presenters, Publishing, Venues | 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

Whose Lawsuit Is It Anyway?

Thursday, October 30th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

I’m dealing with a presenter who wants to cancel two weeks out due to poor ticket sales. While it’s not a huge engagement fee, my artist has already contracted its performers and paid out expenses for the date as its part of a bigger tour. I have a cancelation clause in my contract and I’ve explained what canceling would mean and that the presenter will be on the hook. However, he still wants to cancel. Its been a rough year and I can’t afford legal counsel. Do you have any suggestions?

At least the presenter is not trying to claim that poor ticket sales constitutes an act of God. While I am familiar with many organizations whose strategic plans require some degree of divine intervention to stay operational, God rarely takes an interest in ticket sales.

If you have a cancellation clause in your contract, then that will govern the legal remedies for the situation. Contractually, the presenter either has the option of either proceeding with the engagement or cancelling and abiding by the terms of the cancellation clause (which, I am hoping, spells out how much the artist is owed in the event of cancellation). If the presenter elects to cancel, but refuses to honour the terms of the cancellation clause, that would constitute a breach of contract…which really just gives the artist the right to sue the presenter, obtain a judgment, and, hopefully, collect the judgment. Whether or not attorney fees, interest, or court costs would also be part of the judgment depends on the terms of your contract as a judge has no authority to awards such costs unless the contract requires them. However, regardless of the terms of your contract, a lawsuit should always be the last resort under any circumstances.

Have you tried discussing with the presenter any solutions for increasing ticket sales or promoting the performance? Does your artist’s shows typically sell at the last minute? Has the artist ever performed in this market before? Don’t presume the presenter knows its own market or how to sell your artist in that market better than you do. You may have ideas for selling tickets that the presenter has not considered.

Is the person you are dealing with the final decision maker in the organization? If not, don’t hesitate to go over their head. Don’t threaten—just do it! If the presenter is a non-profit organization, then even the president or executive director reports to the board of directors. Contact the board president or an officer of the board. Often board members are far less cavalier about breaching contracts than an organization’s administrative staff. Its very possible that the board doesn’t even know about the situation as many presidents and CEOs are quite proficient at keeping their boards on a need-to-know basis.

If the presenter refuses to honour the cancellation clause, resist the urge to scream, threaten anyone’s reputation, or toilet paper the venue. While tempting, those options rarely work and will almost always make the situation worse. Ultimately, the decision as to whether or not to file a lawsuit, along with costs and expenses of filing the lawsuit, belong to your artist, not to you. Regardless of whether or not you signed the contract, if the contract is between the presenter and your artist, then all legal claims belong to the artist and only the artist can file a lawsuit and appear in court. You should not be paying or incurring any legal fees out of your own pocket. Unless you, too, are operating as a charitable institution, if the artist wants to pursue a lawsuit, that is their cost burden to bear, not yours.

__________________________________________________________________

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 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, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Presenters, Venues | Comments Closed

Ask, and Ye “May” Receive…or Not

Wednesday, January 9th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder,

I am a music professor at a medium-sized state college. 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. I believe the licensing agencies base the amount of the fee on the size of the school, and we pay a flat amount each year. Does paying those licenses for live performances also cover streaming the concert live? Our department chair believes this to be the case.

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?

I know of other schools whose music departments are streaming performances. Any clarification you could give on this subject would be most helpful not only to us but to many schools throughout the country.

Some ASCAP/BMI licenses for live performances also cover the right to stream the concert live. However, as with all rights, you only get what you ask and/or pay for. So, if you paid for the right to stream live concerts, then your license covers that. If you only paid for live concerts, then it does not. You need to check the license terms and agreement you received from ASCAP/BMI.

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 is that it is not a grey area at all. ASCAP/BMI licenses only cover live performances and, in some instances, streaming a live performance. However, making an audio/visual recording of a concert to be seen or heard at a later a date or…gasp…placed on a website for the whole world to access, is quite another. Such rights are called “synchronization rights” and they must be arranged separately. When you purchase the right to perform music at a live concert, there is no “inherent right” to make an archival recording or a recording for “non-commercial” purposes. There is no “inherent right” to make a recording of any performance at any time under any circumstances without the permission of (a) the composer/publisher of the music (assuming the composition is not in the public domain) and (b) the performers themselves.

As opposed to the law not catching up with technology, this is more of an issue where the performing arts industry has not caught up with the law. I, too, know of many schools and non-profits that regularly make archival recordings and stream concerts. While some of these are licensed, many are not. There is a common misperception that, so long as something is used for educational purposes or no money is charged, then no licenses or permission is required. Nothing could be further from the truth. While many composers and publishers are happy to grant liberal permission, or even turn a blind eye to unauthorized used, others are not. It’s anyone’s guess as to which one you’re dealing with until it’s too late. The safest rule of thumb is: never assume you have permission to do anything you haven’t specifically asked for. Always ask permission. It protects artists, protects your institution, and perpetuates the value of the arts.

________________________________________________________________

Both Robyn Guilliams and Brian Taylor Goldstein will be attending the Association of Performing Arts Presenters Annual Conference in New York, providing both workshops and consultations. Please stop by the 4th Floor of the Hilton and say hello!

_________________________________________________________________

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, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Recordings | Comments Closed

What’s Wrong With Canada?

Wednesday, December 19th, 2012

By Robyn Guilliams, Esq.

Dear Law and Disorder

Why is it necessary for Canadian performers to obtain work permits in order to perform in the United States? Although Visas are not necessary, the work permit is necessary. Why are the artists not able to enter the way other business people under the North American Free Trade Agreement? Cultural industries exempt are books, films and recordings. Why is performance by artists in the USA not covered by the Agreement?

We get this question a lot from our “northern” artists and the answer, though simple, is frustrating: the North American Free Trade Agreement (NAFTA) doesn’t cover performing artists.

Just like performers from all other non-U.S countries, Canadian performers are required to obtain O or P work authorization to perform in the United States. It is true that certain types of Canadian and Mexican workers may enter the United States and work legally pursuant to NAFTA. Unfortunately, this NAFTA exception to the usual visa requirement does not extend to performers.

It’s also true that NAFTA includes provisions pertaining to “Cultural Industries,” which include the production, distribution and sale of items such as books and magazines, CDs, DVDs, and sheet music. However, these provisions of NAFTA do not apply to performances. For these reasons, the usual laws pertaining to the arts and entertainment industry – including those pertaining to immigration and taxes! – apply equally to Canadians as well as all other non-resident artists performing in the U.S.

As for “why” NAFTA does not cover performing artists and performers, you would have to ask the unholy alliance of lobbyists, legislators, diplomats, and bureaucrats who negotiate these things.

________________________________________________________________

LAW AND DISORDER WILL BE TAKING A BREAK FOR THE HOLIDAYS!

WE WILL RESUME ON JANUARY 8, 2013….JUST IN TIME FOR APAP!!!

________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

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