Posts Tagged ‘Robyn Guilliams’

The Elephant and The Frog

Thursday, May 29th, 2014

By Robyn Guilliams     

Dear Law & Order

I’ve been hearing a lot about a recent U.S. ban on ivory that will prevent string players from transporting their instruments in and out of the country.  However, I recently travelled to Europe and back with my cello (my bow has a small ivory inlay in the frog), with no problem.  What’s the story?

What a great question!  There has been a lot of press lately about the “new” ban on ivory, which will affect musicians whose instruments contain even a tiny amount of ivory.  Although a number of issues related to the ban are yet unresolved, here’s what we know thus far:

The ban is not really new. U.S. law has prohibited items containing ivory, Brazilian rosewood and tortoiseshell from being brought into or taken from the U.S. for a number of years. (Many other countries have similar laws.)  While these laws haven’t been enforced in the past, the U.S. recently signed the Convention on International Trade in Endangered Species of Wild Fauna and Flora (known as the CITES treaty) with 189 other countries.  The purpose of the CITES treaty is to ensure that international trade in specimens of wild animals and plants does not threaten their survival.  Save the elephants and the sea turtles!

Fortunately, the governments participating in CITES realized that the treaty rules would make it impossible for some musicians to travel internationally with their instruments.  For this reason, CITES provides that musicians may obtain a certificate (or “passport”) that will allow them to transport internationally instruments that contain ivory and/or rosewood, and other banned materials (such as certain types of wood and sea turtle shell).  The passport, which is good for three years and is attached to the person, not the instrument (i.e., it’s not transferable), will allow the musician to travel with his/her instrument throughout the 189 countries without any problems (in theory).

There is no question that, at some point in the future, musicians with instruments containing ivory, rosewood, etc., who wish to travel internationally with their instruments must obtain this passport. However, at this point, there still are serious problems with the passport system:

  • The passport currently is accepted at a very limited number of US ports.  There currently are 18 ports that permit items relating to “endangered species” (ivory and tortoiseshell) to be brought into the country.  There are 15 ports that allow items related to “endangered wild fauna” (rosewood and other banned woods).  Only nine of these ports overlap.  I.e., if your instrument contains both ivory and rosewood, there are only nine ports at which you may enter the U.S.
  • In theory, one may request entry into a non-designated U.S. port.  However, the process for obtaining this permission is a mystery right now, and will vary from port to port.
  • The process for obtaining an instrument passport in the U.S. are still a bit in flux, as this is something quite new that the U.S. Fish & Wildlife Agency is dealing with.  In other words, we are dealing with a government agency working out the kinks of a brand new procedure—which means, if you plan to obtain an instrument passport in the very near future, expect delays and (potentially) other problems.  In fact, if you don’t plan to travel in the near future, you may want to sit back and relax, and concern yourself with obtaining your passport later (after the government has worked out its procedural problems on other poor souls!)

Obviously, one must obtain an instrument passport from their own country, so the rules may be different in various countries.

The great concern at this point is enforcement – when will it begin, and how?  Will there be any sort of grace period?  Unfortunately, these questions remain unanswered by U.S. Fish & Wildlife.  The good news is that, at present, we know of no cases of instruments being confiscated and/or destroyed.  (Let us be grateful for what we have…)

More details on the ban, the instrument passports, and potential enforcement are available at the  League of American Orchestras’ website: http://americanorchestras.org/advocacy-government/travel-with-instruments/endangered-species-material/ivory-ban-impact-on-orchestras.html

So the question for musicians is this:  Do they continue to travel with their instruments internationally with no passport, and hope for the best until enforcement begins?  Or do they go ahead and apply for a passport?  If they choose the first route, there is the risk (though minimal at this point) that their instrument will be confiscated.  If they choose the latter route, they risk enduring extra scrutiny from airport personnel who aren’t yet familiar with the new regulations and procedures.  Each person must weigh the pros and cons, considering their individual circumstances and.

Finally, I want to give a shout out to Heather Noonan at the League of American Orchestras, who has devoted an enormous amount of time an effort to this cause.  Many of you know this already, but Heather has been at the forefront of this issue and others, working tirelessly on behalf of musicians and orchestras.  Whenever I speak to her, she is on the move, on her way to meet with yet another charming legislator to advocate for musicians affected by the ivory ban, or for orchestras and other arts organizations affected by the latest kerfuffle with USCIS, or on other issues that affect our industry.  She works constantly to remind our elected officials that the arts, and artists, matter.  Thank you Heather!

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For additional information and resources on this and other GG_logo_for-facebooklegal 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.

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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 | Comments Closed

We’ve Been Hacked!

Wednesday, September 4th, 2013

By Robyn Guilliams

Dear Law & Disorder: Performing Arts Division,

We are a small presenting organization, and we use an outside company to handle our ticket sales.  The company provides us with cloud-based software, which we use to process both online and box office ticket sales. We were recently informed by the software company that they’d been hacked!  The company told us that all of our patrons’ relevant information may have been compromised, including their credit card information. A lawyer on our board said that we are responsible for notifying all of our patrons of the security breach.  Is this true?  There are over 8,000 patrons in the system, going back quite a few years!  We don’t have the personnel to devote to this type of project.  One of the reasons we out-sourced our ticketing was to avoid handling and storing this type of sensitive information.  If we don’t handle the credit card information, why are we responsible if that information is stolen?

Oy, what a headache!

Unfortunately, I would guess that the terms of your organization’s contract with the ticketing software company require your organization to notify its patrons in the event of this type of security breach.  In fact, the contracts I’ve seen for this type of service require that the presenting organization indemnify the software company in the event of a breach.  This means that you are not only responsible for your own legal expenses and damages should one of your patrons suffer a loss as a result of the breach, but you’ll have to pay the software company’s legal expenses and damages as well!  And usually, these types of provisions are not negotiable.

In addition, you may want to take a look at the website of the PCI (Payment Card Industry) Security Standards Council, which sets the standards for companies who process credit card transactions (like your ticketing software company.)

See: https://www.pcisecuritystandards.org/faq/

Because your organization doesn’t actually handle or store credit card data, it’s not required to be “PCI Compliant.” However, as stated on this site, “it is the responsibility of the merchant to ensure that the data they share with third parties is properly handled and protected – just because a merchant outsources all payment processing does not mean that the merchant won’t be held responsible by their acquirer or payment brand in the event of an account data compromise.”

The good news here (such as it is) is that most states provide a mechanism for an organization like yours to protect itself in the event a third party credit card processor is hacked.  Generally, if you provide timely notice to your patrons of the breach, you can’t be held liable for your patrons’ damages (the theory being that if your patrons know about the breach, they can take steps to protect themselves.)  For instance, in New York (and many other states), your organization is protected from liability if you notify your patrons of the security breach “in the most expedient time possible and without unreasonable delay.”  The notice can be made in writing, electronically, or by phone.

Also, there are insurance policies that cover this type of cyber liability.  These policies usually cover the cost of notifying your patrons, as well as any legal expenses or damages you may have due to the breach.

In short, the volunteer lawyer on your board is correct. (As we don’t often agree with most lawyers, this is a rare occurrence, indeed!) Given the vulnerability of identification fraud and the potential exposure of your organization, you’d be wise to find a way to notify your patrons.

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Brian Goldstein and Robyn Guilliams will be attending the 2013 Midwest Arts Conference in Austin, Texas next week.

Our next blog will be on September 17, 2013.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Arts Management, Insurance, Law and Disorder: Performing Arts Division, Liability, Non-Profits, Presenters, Venues | Comments Closed

A Room With A View…and a 1099

Wednesday, July 24th, 2013

By Robyn Guilliams Dear Law and Disorder, I have been in artist management for a long time, thought I had seen it all, but something just came up for one of my artists that has me completely stumped.  My client was sent a 1099 for a hotel stay that the presenter provided for an engagement.   Most presenters that I work with pay for the hotels, but never once has the value of that hotel been included on the 1099 that the artist was sent.  This particular place is a big resort, they too are the presenter.  They often trade rooms for fees (it’s a very exclusive resort!), or they give small fees plus the accommodations (which includes meals), usually for two nights as a perk to the artist. It gets tricky for the artist, because they don’t pay for the hotel, so they have no expense to write off for that income. So that may mean they end up paying tax on that amount, thereby losing money doing this performance.  That’s where this goes wrong for the artist, in my opinion.  Artists obviously do this gig because of the resort.  But, this has left a bad taste.  What’s up with issuing the 1099?  They say it is an IRS law that says hotel costs are income for the artist.  By the way, they don’t tell you this up front…Searching for the Truth Dear Searching for the Truth: The answer to your question depends on the specific facts of the situation.  (A lawyer’s favorite answer to every question is – “It depends”!) Generally, if a presenter provides accommodations to an artist as part of the artist’s compensation, the value of the accommodations is NOT considered taxable income to the artist, if the accommodations are reasonable and necessary.  For instance, if an artist is travelling from California to New York to play one show, the presenter providing the artist with two nights of hotel accommodations is reasonable and necessary.  The value of the hotel accommodations in this instance would not be considered taxable income to the artist, and need not be included on the 1099. On the other hand, if a pianist travels away from home to play a concert and the presenter provides hotel and airfare for the pianist, her husband, her sister, her sister’s next-door neighbor, and the next-door neighbor’s pet monkey, this is not reasonable and necessary.  The value of the airfares and accommodations for everyone except the pianist would be considered taxable income and SHOULD be reported to the artist on a 1099. Unfortunately for your artist, there are a few comments in your letter that indicate that the accommodations at the resort exceeded the “reasonable and necessary” standard.  You state that the artists at this resort often accept accommodations in lieu of fees, or accept smaller fees plus accommodations.  Why would an artist accept no fee, or a substantially smaller fee, if the artist wasn’t receiving something of value (in addition to the hotel room) in return?  Plus, you mention that artists “do this gig because of the resort”… and the presenter provides “two nights as a perk to the artist”.  Again, the artist is receiving something of value besides the usual hotel accommodations.  If an artist is receiving a significant personal benefit from the accommodations besides a place to lay his head after the show (such as the opportunity to enjoy resort amenities or an extra night of accommodations), then the value of the accommodations constitutes taxable income and must be reported. You say that it’s tricky for the artist, because he has no expense to write off his income.  But wouldn’t this be the case if he was receiving his usual fee plus a regular, non-resort, hotel room?  I’d suggest that in the future, unless your artist understands the taxable “value” of receiving resort accommodations, including the included room service and use of the infinity pool, have him stay at the Motel 6 down the street. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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

Accommodating Audience Members

Wednesday, June 12th, 2013

By Robyn Guilliams Dear Law and Disorder, I run a small nonprofit presenting organization. We recently received an email from a patron who wanted to attend a particular performance, and he asked if we provide accommodations for the deaf.  He indicated that either an American Sign Language interpreter or some sort of close captioning system would suffice.  We responded and told him that we did not provide those sorts of accommodations because we can’t afford it.  We suggested that he reserve a seat towards the front of the venue to enhance his ability to see the performance without any interference.  He then wrote back, stating that he was making a request for a reasonable accommodation under the Americans with Disabilities Act and asking that we respond with accommodation specifications within 48 hours. I don’t believe that this is a reasonable request for a nonprofit organization.  We don’t have the capability for close captioning, and we would be required to spend $500 to $800 on a sign interpreter.  How should I respond?? You should respond that your organization would be happy to provide a sign interpreter for this gentleman! The Americans with Disabilities Act (“ADA”) requires that all “public accommodations” – that is, virtually any facility that is open to the public – provide auxiliary aids and services to ensure effective communication access to their deaf and hearing-impaired patrons and customers.  This applies to for-profit businesses and nonprofits, both large and small!  For a theater or other performing arts venue, the most appropriate auxiliary aids usually are sign language interpreters and real-time close captioning devices. The idea behind the ADA is to ensure that no one with a disability is excluded, denied services, segregated or otherwise treated differently than others because of barriers or the absence of auxiliary aids. While the cost of a sign interpreter may seem daunting to small organizations, consider it a cost of doing business (yes, nonprofits – you are “doing business” by presenting performing arts presentations to the public!) and factor that cost into your budget. The ADA does provide an exception to the auxiliary aids requirement if providing these aids would result in an “undue burden” (i.e., “significant difficulty or expense”) to the business.  However, this “burden” must be truly significant for the exception to apply. Must every venue install high-tech close-captioning technology to accommodate the deaf and hearing impaired?  No.  Nor must a venue hire an ASL interpreter for every performance.  A patron who arrives at a performance and demands an auxiliary aid with no advance notice may be out of luck.  However, when a patron makes a timely request for a sign language interpreter, the venue must make its best efforts to fulfill that request. A few other notes to keep in mind: The “reasonable accommodations” (e.g., the sign language interpreter) must be paid for by the place of public accommodation. The costs cannot be passed on to the individual with a disability! A place of public accommodation must provide services in an “integrated” setting.  This means that the deaf or hearing-impaired patron cannot be excluded from enjoying a performance along with the rest of the audience.  As an example, it’s not acceptable to set up a close-captioned television feed in an area separate and apart from where the performance is happening.  If close-captioning is offered, it must allow the hearing-impaired patron to enjoy the performance in the same space as the rest of the audience. The deaf or hearing-impaired patron has the choice of which accommodation best fits his or her communication needs; however, an equally effective substitute may be provided if the original request is unreasonable or unfillable. In theory, the ADA codifies what should already be pervasive throughout the performing arts: an embrace of inclusivity. More practically, whether or not you agree with the ADA, the cost of ADA compliance is far less than the costs of non-compliance, which can be excessive. There are grants and foundations which may available to help you offset the costs of accommodating your disabled patrons. This may also be a good time to use this occasion to review your ADA policies and procedures, including how your staff and volunteers respond to ADA compliance requests and patrons with special needs. An insensitive response can send an embarrassed or angry patron directly to an attorney. As with any issue, it’s always easier to address problems and complaints before they arise. ________________________________________________________________ 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, For Profits, Law and Disorder: Performing Arts Division, Liability, Non-Profits, Presenters, Venues | Comments Closed

Another Taxing Question

Wednesday, March 13th, 2013

By Robyn Guilliams, Esq.

Dear Law and Disorder:

There seems to be some clarification needed regarding income earned by non-US artists we represent who perform in Canada. We act as the agent for the artists, so payment is always made to us.  If an artist will be performing in Canada, but payment comes to us in the US before it is sent to the artist, is it still subject to US withholding (potentially 30%)? If an artist earns money in Canada and the payment comes to us as agent for the artist does that income get recorded in the 1042S that we provide the artist at the end of the calendar year? I am hoping you can provide me with an answer that I can forward on to my colleagues. Thanks, you guys are great!

The 30% withholding rule is applicable only to payments of “US source income”.  For compensation of personal services (e.g., fees earned by artists for performances, master classes, etc.), the test of whether or not the fees are “US income” is the location where the services are performed. Fortunately, this makes it easy to determine when the 30% withholding rule applies! IRS Publication 519 states that:

If the income is for personal services performed in the United States, it is from U.S. sources. The place where the services are performed determines the source of the income, regardless of where the contract was made, the place of payment, or the residence of the payer.”

So, your nonresident artists who perform in Canada (or any other country outside the US) are NOT subject to 30% withholding. They are subject to tax and withholding in the country in which the services are performed. Even if payment for a Canadian engagement comes to you in the US, that payment will be considered non-US income, it is not subject to 30% US tax withholding, and it is not reportable on a 1042-S. However, while your artist won’t have any US tax obligations for the Canadian engagement, he or she may be subject to Canadian withholding and tax.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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Posted in Artist Management, Law and Disorder: Performing Arts Division, Taxes, Touring | 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.

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

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

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Non-Profit and Tax-exempt: What’s In a Name?

Wednesday, August 29th, 2012

By Robyn Guilliams

What is the difference between a “non-profit” organization and a “tax-exempt” organization?  I hear these terms used interchangeably – do they mean the same thing?

Great question!  These terms do not mean the same thing.  All tax-exempt organizations are non-profits; however, not all non-profits are tax exempt.

When an organization wishes to be classified as “non-profit”, it must register with a state – usually the state in which it operates.  Every state has different classifications for non-profit organizations.  For instance, New York and some other states have a type of business classified as a “Not-For-Profit Corporation.”  Other states have corporations that are classified as “Non Stock Corporations.”  What all of these corporations have in common is that they do not have any owner, and the business of the organization is run by a board of directors.

Once an organization formally registers as a non-profit company with the state, the organization can request federal tax-exempt status with the Internal Revenue Service.  If granted tax-exempt status by the IRS, an organization will not have to pay federal taxes on its income (provided that income is related to the organization’s “charitable mission”), and donations made to the organization generally will be tax deductible for the donor.

States often have additional requirements for organizations to qualify for tax-exempt status.  Some states will grant tax-exempt status automatically to organizations that have been granted federal tax-exempt status, while others require the organization to complete a separate request.

Some businesses elect to become non-profits without also being tax exempt. They do so for many strategic, marketing, and organizational reasons. However, the important take-away here is that not all non-profits are tax exempt. A tax exempt non-profit is subject to far greater government oversight and operational restrictions than a regular non-profit. Unless a non-profit organization is granted tax exempt status by the IRS, that organization is subject to the same tax and filing obligations as any other business!

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Arts Management, For Profits, Law and Disorder: Performing Arts Division, Non-Profits, Presenters, Taxes, Venues | Comments Closed

The 30% Withholding Tax Isn’t Just For Performers!

Wednesday, August 15th, 2012

By Robyn Guilliams

Dear Law & Disorder Team –

We run an international competition that takes place in a different country every two years and each time we have to learn new lessons around taxation. What is the Withholding Tax situation around jury services or the teaching of master classes for non-US resident jury members? Are they also subject to the 30% Nonresident Alien (NRA) Withholding Tax or not?

As anyone in the U.S. who does business internationally will discover, dealing with tax withholding and other tax laws in foreign countries can be a drag, to say the least.  Every country has its own rules and procedures, and it’s often difficult to figure out those rules ahead of time, especially if you don’t speak the language.  I feel your pain!

As for the U.S. requirements for NRA tax withholding, the general rule is that any time a payment is made to a nonresident individual or business for services provided in the U.S., the 30% NRA withholding rule applies (i.e., you must withhold 30% of the gross payment toward the NRA’s possible tax liability.)  This rule applies not only to performers, but to ANYONE performing services in the U.S. – including those serving on competition juries and teaching master classes.

There may be an exemption from U.S. tax and withholding for a nonresident, however, if the nonresident meets certain requirements.  Generally, those requirements are as follows:

  • There must be a tax treaty between the U.S. and the nonresident’s country of residence (NOT their country of citizenship):
  • There must be a provision in that particular treaty that would exempt the nonresident from tax in the U.S.; and
  • The nonresident individual or business must have a U.S. tax identification number, and complete the appropriate form to claim the treaty exemption, and exempt themselves from withholding.

Whether or not a nonresident qualifies for a treaty exemption is very fact-specific.  And it’s important to be aware that each treaty is different!  Just because the U.S. tax treaty with France might exempt a French individual from tax for performing as a juror at a U.S. competition under certain circumstances doesn’t mean that the U.S. treaty with the U.K. would provide the identical exemption.

Fortunately, the IRS publishes a guide to understanding tax treaties, which goes by the catchy title of “Publication 901 – U.S. Tax Treaties.”  (You can download this publication here: http://www.irs.gov/pub/irs-pdf/p901.pdf.)  Table 2, which begins on page 39 of the current version of Pub. 901, includes a summary of the rules that apply to nonresident individuals who are performing services in the U.S., country by country.  When using this Table, be sure to review all of the information relevant to a particular country, including the footnotes!  (It’s all relevant to whether or not a withholding exemption applies.)

Finally, remember that a nonresident individual wishing to claim an exemption from withholding MUST have either a Social Security Number (SSN) or a U.S. Individual Tax Identification Number (ITIN) to do so.

And, as always, if you have any questions about visas or taxes for nonresidents working in the U.S., be sure to check out the Artists from Abroad website (www.artistsfromabroad.org) which has all of the information you could ever need on these topics!

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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Posted in Arts Management, Central Withholding Agreements, Law and Disorder: Performing Arts Division, Taxes, Uncategorized | Comments Closed

Do Competitions Need To Withhold Taxes On An Artist’s Prize Money?

Wednesday, June 6th, 2012

By Robyn Guilliams

We hold a piano competition where artists, some from abroad, pay their own way to come here to compete.  If they win any prize money, do we need to withhold taxes?

For artists who are nonresidents of the U.S., I’m afraid you are required to withhold taxes! The general rule is that any payment of “U.S. income” made to a nonresident of the U.S. is subject to the 30% withholding requirement. In effect, 30% of the gross income paid to the artist must be withheld by the payer and deposited with the U.S. Treasury.  This deposit will be credited toward any taxes the artist may owe at the end of the year.

Depending on the artist’s country of residence, however, there may be an exception to the withholding requirement.  The U.S. has entered into tax treaties with many countries (68 at last count.)  The terms of each treaty control where a particular person’s income is taxed when the person resides in one country, but the income has a connection to another country (the treaties prevent the person from being taxed twice, in two different countries, on the same income.)

Whether or not an exemption from tax in the U.S. exists is very fact-specific.  Obviously, the nonresident artist must reside in a country with which the U.S. has entered into a tax treaty.  But (just to keep things interesting), the terms of each treaty are different, so the treaty in question must be reviewed to determine if there is a provision that exempts his type of income from U.S. tax, and whether that exemption can be claimed at the withholding stage!

A more detailed explanation of how the tax treaties work is available at the Artists from Abroad website:

http://www.artistsfromabroad.org/tax-requirements/exceptions-to-nra-withholding-requirement/tax-treaties/

You may also want to check out the IRS’s Publication 901, “U.S. Tax Treaties”, (http://www.irs.gov/pub/irs-pdf/p901.pdf), which provides a summary of each treaty currently in force, as well as a few helpful charts to determine what types of income are exempt under each treaty (but be sure to read the footnotes carefully!)

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM 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, Law and Disorder: Performing Arts Division, Taxes | Comments Closed

Posting Musical Performances on YouTube

Wednesday, April 4th, 2012

By Robyn Guilliams

Dear Law and Disorder,

What are the copyright issues in posting a performance of a piece of music on YouTube for global streaming?  And, since people can easily download YouTube content, what are the implications for the person who’s posted it, or the downloaders for that matter?

Before answering your question, I want to clarify that there are two separate copyrights in a videotape of a musical performance – the copyright in the music contained in the video, and the copyright in the video itself.  The copyright is usually owned by the creator of a work.  In the case of the musical composition, the copyright would be owned by the composer (or perhaps the composer’s publisher, if he or she has one.)  In the case of the video, the owner of the copyright would be whoever created the video (and NOT the individual performers – which is a common misconception!)

Now, on to your question…  The answer depends on who owns the copyrights to the video, and the underlying music in the video.  If you make a video of yourself performing your own music, and you post that video on YouTube, there are no copyright issues.  Because you own the music being performed, AND you own the video, you have the right to post that video on YouTube or anywhere else on the Internet.

However, the answer changes if you don’t own the music.  If the musical copyright is owned by someone else, you would need that person’s permission to perform the music (i.e., a performance license for the music), to videotape the performance (a synchronization license), AND to broadcast that video via the Internet (a performance license for the video).  Of course, it’s not necessary to have three separate documents, but you would want to be sure you have all of the permissions you need in one license!

The answer also depends on who owns the videotape of the performance.  As noted above, the owner of a video usually will be the person who creates the video.  So, if you perform your own music, but someone else records that performance, then that person will own the video, and you would need that person’s permission to post the video on YouTube.

Downloads implicate yet another potential license requirement – a distribution license!  If you don’t have a right to distribute the video – or the music contained in the video – both you and the illegal downloader could be liable to the copyright holders.

The moral here is that, before posting any audio or video recording on the Internet, be sure you have all of the necessary permissions – preferably in writing!

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM 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 Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Recordings, Uncategorized | Comments Closed