Law and Disorder: Performing Arts Division

Archive for the ‘Law and Disorder: Performing Arts Division’ Category

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

Monday, June 24th, 2024

LAW & DISORDER

Performing Arts Division

June 25, 2024

INSIDE THIS ISSUE:

• A National Ban on Performance Exclusivity Clauses

• Posting Recordings on Websites

• Artist Visa News, Nausea & Updates

• Your Contract Playlist

Legal Issue of the Month:

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

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

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

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

Dear Law and Disorder:

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

“With thanks, your friendly, neighbourhood car thief”

Dear Law & Disorder:

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

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

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

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

Artist Visa News, Nausea

& Updates

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

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

1. Standard Processing Times Are Getting Slower

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

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

2. USCIS Is Losing P Petitions

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

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

3. USCIS Is Improperly Rejecting Petitions

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

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

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

4. USCIS Is Issuing Barmier RFEs

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

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

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

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

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

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

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

Want To Listen To More About Contracts?

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

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

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

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

Deep Thoughts

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

― Ricky Gervais

Send Us Your Questions!

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

OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

Tags:artist management, artist visas, arts management, Contracts, Copyrights, Licenses, venues, visas
Posted in Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Presenters, Uncategorized, Visas | Comments Closed

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

Tuesday, September 26th, 2023

LAW & DISORDER

Performing Arts Division

September 27, 2023

INSIDE THIS ISSUE:

• Contractual Effrontery

• Not Paying Artists Is A Crime!

• How A Government Shutdown

Will Impact US Artist Visas

Legal Issue of the Month:

Contractual Effrontery

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

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

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

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

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

Dear Law and Disorder:

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

“Not Paying an Artist is a Crime!”

Dear Law & Disorder:

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

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

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

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

Artist Visa News & Nausea

• How A Government Shutdown Will Impact Artist Visas

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

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

• New Edition of the I-129 Form

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

• Using Consultation Letters from Peer Groups instead of Unions

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

• Current USCIS Service Centre Processing Times:

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

Vermont Service Centre:

Standard processing: 8 – 10 weeks

Premium processing: 9 – 10 days

California Service Centre:

Standard Processing 3 – 4 months

Premium Processing 13 – 14 days

Deep Thoughts

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

African Proverb

Send Us Your Questions!

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

OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

Tags:agent contracts, artist management, artist visas, Contracts, visas
Posted in Artist Management, Contracts, Law and Disorder: Performing Arts Division, Visas | Comments Closed

What Are Contracts for?; Non-Profit By-Laws Made Simple; Are Union Strikes Force Majeure events?; Artist Visa Updates

Wednesday, June 7th, 2023

LAW & DISORDER

Performing Arts Division

June 7, 2023

INSIDE THIS ISSUE:

• What Are Contracts For?

• Non-Profit Laws Made Simple

• Are Union Strikes Force Majeure Events?

• Artist Visa Updates

Legal Issue of the Month:

What Are Contracts For???

It’s no secret that a vast expanses of artists, venues, managers, presenters, and agents prefer to have engagement contracts with all the “fun stuff” (dates, fees, travel, repertoire, etc) confirmed and signed on the front and the “terms and conditions” left alone, shunned, cold, abandoned, and forsaken on the back. Such “terms and conditions” are often dismissed as “just all the legal stuff” or “the legalese” or “stuff we had a lawyer draft for us years ago and we have no idea what it means, but we can’t change it.”

First, whether it’s the time of the sound check, 4 bags of raspberry Haribo gummy bears the Artist wants in the dressing room, or the number of comp ticket, everything put in a contract becomes “legal stuff.” Second, though, indeed, boring (even for me), the “legalese” typically addresses important issues such as whether or not the venue can make an archival recording and what they can do with it, rights and licenses, cancellation terms and conditions, who’s responsible if someone gets injured, what constitutes force majeure/Acts of God (remember how everyone suddenly started reading those for the first time during COVID?), and other issues that everyone ignores until something goes horribly wrong, at which point they all start arguing over what they assumed these terms meant.

A contract in and of itself will not protect you. Contracts are not self-enforcing. There is no scenario in which a signed paper talisman with the right magic words will allow you to sleep embraced in the amble bosom of self-delusion that everyone will do what they are supposed to do, people will not act in their own self-interest and still claim the moral high-ground, and nothing can go wrong. Signatures do not guarantee that dates will not get cancelled even if the contract specifically says it is non-cancellable or even that you will get the fee everyone agreed upon.

If a date gets cancelled or you do not get paid, your signed contract merely becomes a coupon redeemable for a lawsuit to enforce it. However, are you really going to sue anyone? Is there such a significant amount of money at stake that it’s worth the cost and time, financially as well as emotionally? Are you willing to subsidize a trial lawyer’s $11,000 Japanese NEOREST toilet just for the self-satisfaction of proving a point? Do you ever want to work with that venue or artist again?

So why bother? What are contracts for?

Contracts are for managing expectations, both your own and the other party’s, by spelling out ALL of your concerns and requirements (not just the “fun stuff”) before music is composed, airline tickets are purchased, or recordings made. Contracts are for discovering and discussing unexpressed assumptions. Contracts are for planning and assessment. Contracts are for reading and discussion. Contracts are for knowing what the other party is and is not willing or able to do, and then deciding whether you can compromise or whether you are willing to proceed and accept the risks. Contracts are for starting a conversation and ending in a relationship.

If you’re just tossing unread papers back and forth through Docusign so you or your contract administrator can tick that box off the list, don’t complain when the artist trashes the dressing room and refuses to perform upon failing to find their gummy bears.

Dear Law and Disorder:

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

“Non-Profit By-Laws Made Simple”

Dear Law & Disorder:

We are forming a non-profit. Can you recommend a good template for by-laws? We just want to keep it simple so we can get it set up right away and get started. We’ve already got some people willing to donate as well as serve on our board.

Aside from an outhouse erected on a popsicle stick over a tidal bore, non-profit institutions are, perhaps, the most precarious and dysfunctional of all structures ever conceived within which to conduct business. Without a strong set of by-laws, carefully and thoughtfully crafted to address your unique mission, stakeholders, goals, and challenges, your non-profit is likely to perish from such commonly fatal non-profit diseases as Foundersitis, Administrative Staff Infection, Systemic Committee Infarction, Micromanageitis, Consultant Dependency, Strategic Streptococcus, and Gangrenous Board Members.

Your by-laws are the foundation upon which your organization will be built. They determine how your non-profit is structured and managed. They will describe the roles, expectations, duties, and responsibilities of board members. It will set forth how decisions are made and conflicts resolved. At the same time, like strategic plans and business plans, by-laws are not commandments fixed in stone. They will provide a steady hand of direction within a flexible mechanism for addressing growth, challenges, and situations as they arise. In other words, whilst by-laws do not require a constitutional convention, they are also not something to be crafted with speed and indifference.

Assuming you are serious about forming a sustainable business and not merely hoping to circumvent having a viable business plan by hoping to supplement your income through a quick influx of donations and grants, you should gather as many different samples of by-laws from as many different organizations that have similar missions as yours. Analyse them to see how the successes, failures, and experiences of other organizations may apply to your own. Remember, when forming a non-profit, it is the board members who will ultimately control and run the organization, not you. So, just because someone wants to donate money does not mean they should also serve on the board. Ideally, those persons who are already willing to serve as your initial, founding board members should also be interested and committed enough to assist you in the process of crafting the by-laws.

Whether you are forming a Children’s Vuvuzela Choir or the Wilma Schiddy Centre for the Arts, simplicity kills the soul—or, in this case, a non-profit.

Breaking the News!

Are Union Strikes Force Majeure Events?

When concerts and performances started falling during COVID, it sent everyone into a delirium over whether, how, when, why, if a pandemic constituted a Force Majeure event allowing an engagement contract to be cancelled without penalty. As no one was happy with answers, everyone began re-drafting their contracts to deal with future pandemics.

Hollywood’s current Writers Guild of America strike has spotlighted yet another hidden Act of God: labour strikes. Many “standard terms and conditions” give a party the right to cancel a contract in the event of a labour strike. This means that if you are engaged to perform as a soloist with an orchestra and the orchestra goes on strike, the orchestra can terminate your engagement contract without penalty. This can apply to any situation where a union strike might impact the resources needed to fulfil a contract—such as booking an event at a university-based venue and the teacher’s union goes on strike or being booked to perform and your sets and props cannot be delivered due to a trucker’s strike. Imagine my own surprise when, as a person whose wife had to show him how to change the windshield wiper fluid in my car, I woke up one day as a member of an adjunct faculty and also found myself a member of United Auto Workers…which then went on strike!

You can read more about this issue HERE

Artist Visa News & Nausea

• The Status of Proposed Petition Fee Increases.

There have been no new updates from USCIS regarding its proposed fee increases and other changes. Whilst our crystal ball remains cloudy, the runes tell us to expect “some” changes, we just don’t know when or to what degree. In the meantime, all fees remain the same and there remain no limits to the number of beneficiaries that can be listed on O-2 or P petitions.

• COVID Vaccinations Are No Longer Required To Enter The US

Effective May 12, 2023, the Biden administration lifted the requirement that non-US citizens and non-US residents have COVID vaccinations to enter the US. However, ye who enter here will continue to be required to abandon all hopes.

• No More Passport Entry Stamps

Also this month, US Customs and Border Patrol (CBP) confirmed that it will be implementing “stamp-less entries” for everyone arriving in the US. This means that when you enter the US on a visa, you will no longer receive a physical stamp and handwritten notation in your passport. Instead, your date of entry, your visa status, and the date by which you must leave will hereinafter ONLY be recorded on a digital entry/exit form called an I-94 which will ONLY be available on-line at the CBP I-94 Website .

Whilst CBP has been recording entry/exit information on digital I-94 forms for several years now, CBP officers continued to stamp passports. As it was not at all uncommon for the information on the I-94 to be incorrect, having a physical stamp meant that before you left the airport you could check and confirm that all of your information was correct. Now, for example, if you have a visa that expires on June 30, but the I-94 says May 30, you will need to leave by May 30 regardless—but you won’t know that a mistake has been made in your record unless you dash to the I-94 website as soon as you leave the immigration area and make sure your I-94 is correct. If it is not, you will need to find the CBP officer lurking betwixt the Cinnabon and Chick-Fil-A and ask them to correct it.

• There Is Nothing Graceful About US Visas

…and speaking of entries and exits, please note that there are no automatic “grace periods”—10 days or otherwise—added before or after the validity dates of a visa. There never have been. This has always been a myth—or, at least, mischaracterized. When an individual enters the US, CBP officers have the discretion to allow them up to 10 extra days to remain in the US as a tourist. However, it is the burden of the visa holder to make the request to a CBP officer upon entry to the US. The extra dates are not automatically given.

If the officer approves (and they usually do), the approved extra days MUST be reflected on the I-94. So, if you want to claim the 10 extra days: (1) You must request the extra time; (2) the CBP officer must approve the request; and (3) the additional days must be reflected on your I-94 entry/exit form. However, as discussed above, as entry/exit information will henceforth only be recorded digitally, you will need to check the I-94 website before you leave the airport to make sure the extra days are reflected on the I-94. Otherwise, even if the officer verbally approved the extra days, you will be required to leave the US by whatever date is listed on the I-94.

The better practice is that if you know you or your artist plan to hang around after your show to attend the Toadlick County Monster Truck Mash-Up and Watermelon Bake-Off, just add those extra days onto the visa petition so your visa will be valid for the full time you want to be in the US. You can always still ask for the extra days on top of that to get even more extra time.

• Current USCIS Service Centre Processing Times:

Vermont Service Centre: Standard processing: 6 – 8 weeks

Premium processing: 9 – 10 days

California Service Centre: Standard Processing 3 – 4 months

Premium Processing 13 – 14 days

Deep Thoughts

“Try not to focus too much energy on whether you can trust someone else. When a bird lands on a branch, it doesn’t trust that the branch will never break. It trusts its ability to fly away if it does.”

Anonymous

Send Us Your Questions!

OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

Tags:acts of god, by-laws, Contracts, force majeure, immigration, Non-Profits, visa petition
Posted in Acts of God, Contracts, Law and Disorder: Performing Arts Division, Non-Profits, Uncategorized, Unions, Visas | Comments Closed

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

Wednesday, April 5th, 2023

LAW & DISORDER

Performing Arts Division

April 6, 2023

INSIDE THIS ISSUE:

• Artist Visa Updates

• Non-Compete Agreements

• Manager/Agent Trust Accounts

• Is There A Constitutional Right

To Poop Jokes?

Artist Visa News & Nausea

• The Status of Proposed Petition Fee Increases

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

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

• DOS Increases Visa Stamp Application Fees

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

• Current USCIS Service Centre Processing Times:

Vermont Service Centre: Standard processing: 6 – 8 weeks

Premium processing: 9 – 10 days

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

Premium Processing: 13 – 14 days

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

• Request for Evidence (RFE) Alert:

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

Legal Issue of the Month:

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

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

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

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

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

Dear Law and Disorder:

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

“Manager/Agent Trust Accounts”

Dear Law and Disorder:

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

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

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

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

Is There a Constitutional

Right To Poop Jokes?

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

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

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

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

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

Deep Thoughts

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

Cynthia Bowes-Palmer

Send Us Your Questions!

OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

Tags:artist visas, employment contracts, non-compete, trademarks, visas
Posted in Contracts, Employees, Independent Contractors, Law and Disorder: Performing Arts Division, Trademarks, Visas | Comments Closed

CALL TO ACTION! ARTISTS COMMUNITY ASSEMBLE!

Wednesday, February 22nd, 2023

LAW & DISORDER

Performing Arts Division

February 22, 2023

CALL TO ACTION!

ARTS COMMUNITY ASSEMBLE!

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

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

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

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

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

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

If these proposals are implemented:

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

THESE FEES HAVE NOT GONE INTO EFFECT…YET.

THEY HAVE MERELY BEEN “PROPOSED.”

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

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

We’re on our own here folks.

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

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

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

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

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

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

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

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

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

Coming Attractions

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

Deep Thoughts

“Don’t give up! I believe in you all.

A person’s a person, no matter how small!

And you very small persons will not have to die

If you make yourselves heard! So come on, now, and TRY!”

Dr. Seuss, Horton Hears A Who

Send Us Your Questions!

OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

Tags:artist visas, O visas, P visas
Posted in Law and Disorder: Performing Arts Division, Uncategorized, Visas | Comments Closed

USCIS PROPOSES DRACONIAN FEE INCREASES FOR ARTIST VISAS!

Wednesday, January 25th, 2023

LAW & DISORDER

Performing Arts Division

January 25, 2023

USCIS PROPOSES DRACONIAN FEE INCREASES FOR ARTIST VISAS!

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

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

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

So, for example:

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

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

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

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

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

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

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

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

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

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

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

A CALL TO ARMS!

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

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

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

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

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

To make your comment, click HERE.

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

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

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

Deep Thoughts

“Arise, arise, Riders of Théoden!

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

Ride now, ride now! Ride to Gondor!”

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

Send Us Your Questions!

OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

Tags:artist visas, O visas, P visas, visas
Posted in Law and Disorder: Performing Arts Division, Visas | Comments Closed

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

Thursday, December 8th, 2022

LAW & DISORDER

Performing Arts Division

December 8, 2022

INSIDE THIS ISSUE

> Artist Visa Updates <

> Force Majeure Clauses <

> Streaming Licenses <

> Congratulations! <

> Deep Thoughts <

Artist Visa Updates

• Current USCIS Service Center Processing Times

Vermont Service Center:

Standard Processing: 4 – 6 weeks

Premium Processing: 9 – 10 days

California Service Center:

Standard Processing: 2 – 4 MONTHS!

Premium Processing: 13 – 15 days!

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

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

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

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

Legal Issue of the Month:

Force Majeure Is Not The Same as Cancellation

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

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

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

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

Dear Law & Disorder:

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

Streaming Rights & Licenses

Dear Law and Disorder:

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

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

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

CONGRATULATIONS!

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

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

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

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

CLICK HERE LEARN MORE ABOUT MONICA FELKEL CREATIVE PARTNERS

Deep Thoughts

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

Send Us Your Questions!

OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

Tags:acts of god, artist visas, Felkel, force majeure, streaming, streaming rights
Posted in Contracts, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Uncategorized, Visas | Comments Closed

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

Wednesday, June 15th, 2022

LAW & DISORDER:

Performing Arts Division

June 16, 2022

INSIDE THIS ISSUE

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

Current USCIS Service Center Processing Times:

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

California Service Center: 
Standard Processing 2 – 4 MONTHS! 
Premium Processing 13 – 14 days!

US Consulates Are Significantly Backlogged!

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

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

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

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

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

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

USCIS Has Issued Updated Forms

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

Legal Issue of the Month:

Contract Entirety Clauses

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

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

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

“BOARD TERM LIMITS”

Dear Law and Disorder:

We are a small non-profit that runs a performing arts center. In up-dating our by-laws, its been recommended that we establish term limits for our directors and officers, as well as a formal nominating committee. Do we really need such formalities? We’re very small and don’t have any other committees. Can’t the board itself select its own members and officers? And it seems a mistake to force directors to leave when they are willing to continue to serve on our board. What do you recommend to your clients?

While I am a strong advocate of fixed terms, I never recommend term limits for board members. Why? Because among the most challenging aspects of running a successful non-profit is finding and keeping healthy board members who through wealth, work, or wisdom (as opposed to whining, wasting staff time, or wrongheadedness) contribute to the success and productivity of the organization. Once you are lucky enough to find such pearls, the last thing you want to do is force them to leave! However, at the same time, you need to have a mechanism through which malignant board members can be removed. Such members, if left to metastasize, can quickly chase all the healthy ones away, burn out the staff, and poison the entire operation. Fixed terms where board members can then be re-nominated and re-elected provides you with such flexibility.

On the other hand, term limits for officers can be more appropriate. Why? Because with no term limits, even a beloved president or board chair can quickly become a feared dictator that no one wants to cross, or, just as worse, a benevolent, but ineffective leader who spurns all attempts at needed growth or change. At the end of the president’s term, they can still serve on the board, but no longer gets to wield the mace of supreme authority. Also, in my experience, I have found that those you most want to serve as board presidents or chairs will also be those who do not want to serve more than a few years year whereas those you want to avoid will be those looking to establish a hereditary fiefdom.

Deep Thoughts

“The nicest thing about not planning is that failure comes as a complete surprise and is not preceded by a period of worry and depression.”

John Harvey Jones.”

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OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

Tags:artist visas, board members, board term limits, Consulate, consulates, Contracts, engagement contract, uscis
Posted in Contracts, Law and Disorder: Performing Arts Division, Non-Profits, Uncategorized, Visas | Comments Closed

IN-PERSON APPOINTMENT WAIVERS NOW AVAILABLE FOR O AND P VISAS

Tuesday, January 4th, 2022

By Brian Taylor Goldstein

Happy New Year! Let’s hope the 2021 we wanted finally comes in 2022,

Perhaps you were as surprised as I to wake up Christmas morning to discover that the U.S. Department of State had left an actual gift in our stockings. Not too much, and not too expensive, but it’s the thought that counts.

In order to address the ongoing delays and backlogs in obtaining visa application appointments at U.S. Consulates, the Department of State announced on December 23, 2021 that it was expanding its policy of permitting U.S. Consulates to waive in-person appointments/interviews for visa applications and allowing applicants to apply for visas merely by mailing in the passport and with no in-person appointment/interview required. A such, effective immediately:

Anyone needing to apply for an O or P visa who has ever been issued a U.S. visa in any visa category (B, F, O, P, J, etc) at any time in the past is now eligible for an in-person appointment/interview waiver.

Anyone needing to apply for an O or P visa who has never been approved for a U.S. visa before is also now eligible for an in-person appointment/interview waiver provided:

(1) They are a citizen of a country that participates in the US. Visa Waiver Programme (VWP); and

(2) They have previously traveled to the U.S. at least once before under ESTA (Electronic System for Travel Authorization).

Anyone needing to apply for an O or P visa who has previously been issued an O or P visa within the last 48 months of the prior visa’s expiration date is also eligible for an in-person appointment/interview waiver.

There are two important additional requirements:

(1) The visa applicant’s O or P petition must be approved by USCIS by the time they submit their passport to the consulate; and

(2) The visa application must be submitted at the U.S. Consulate located in the country of which they are a citizen or permanent resident. It is still possible to apply for a visa any ANY U.S. Consulate in the world. However, you will not be eligible for an in-person appointment/interview waiver unless you apply at the U.S. Consulate located in the country where you are a citizen or permanent resident.

As always, U.S. Consulates set their own procedures and policies with regard to how they implement directives from the Department of State. So, the process for requesting an in-person appointment/interview waiver will vary from consulate to consulate, even with regard to consulates within the same country. However, in general, to apply for a visa and request an in-person appointment/interview waiver, the applicant should:

(1) Go to the website of the U.S. Consulate located in the country of which they are a citizen or permanent resident to check for updates and specific policies.

(2) Complete a DS-160 and pay the application fee.

(3) Follow the instructions for requesting an in-person appointment/interview waiver.

Whether or not an in-person appointment/interview waiver will be granted will continue to remain at the discretion of the U.S. Consulate. In general, any applicant who has ever been refused a visa in the past will not qualify, unless that refusal was overcome or waived, and there can be no apparent or potential ineligibilities. Also, due to ongoing staff shortages U.S. Consulates around the world as a result of COVID and the insidiously prolific variations of its mephistophelian offspring, some U.S. Consulates may limit the visa categories eligible for in-person appointment/ interview waivers as well as limit the number of total waivers they are able to process in all categories any given time

For those interested in reading the actual U.S. State Department announcement, click here on the helpful government information specialist:

VISIT OUR NEW WEBSITE: ggartslaw.com‘

THE OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.

Tags:Consulate, consulates, visa, visa appointments, visas
Posted in Law and Disorder: Performing Arts Division, Touring, Uncategorized, Visas | Comments Closed

THE NIE WALL TO COME DOWN …and more good news!

Wednesday, September 22nd, 2021

By Brian Taylor Goldstein

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

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

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

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

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

In more personal news…..

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

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

VISIT OUR WEBSITE: ggartslaw.com

THE OFFICIAL LEGALESE:
THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.

Tags:artist visas, national interest waiver
Posted in Law and Disorder: Performing Arts Division, Uncategorized, Visas | Comments Closed

Archive for the ‘Law and Disorder: Performing Arts Division’ Category

INSIDE THIS ISSUE:

• A National Ban on Performance Exclusivity Clauses

• Posting Recordings on Websites

• Artist Visa News, Nausea & Updates

• Your Contract Playlist

Artist Visa News, Nausea

& Updates

Want To Listen To More About Contracts?

Deep Thoughts

INSIDE THIS ISSUE:

• Contractual Effrontery

• Not Paying Artists Is A Crime!

• How A Government Shutdown

Will Impact US Artist Visas

Artist Visa News & Nausea

Deep Thoughts

INSIDE THIS ISSUE:

• What Are Contracts For?

• Non-Profit Laws Made Simple

• Are Union Strikes Force Majeure Events?

• Artist Visa Updates

Artist Visa News & Nausea

Deep Thoughts

INSIDE THIS ISSUE:

• Artist Visa Updates

• Non-Compete Agreements

• Manager/Agent Trust Accounts

• Is There A Constitutional Right

To Poop Jokes?

Artist Visa News & Nausea

Deep Thoughts

A CALL TO ARMS!

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