…And They’re Not Done Yet! USCIS Has Just Imposed New Filing Fees and Forms!

August 1st, 2020

On July 31, 2020, DHS (The Department of Homeland (In)Security) issued a “Final Rule” confirming that USCIS (Unconscionable, Shameful, Callous, Immoral, and Sinister) will be imposing steep fee increases for visa petitions as well as creating new forms. Assuming that the many lawsuits and injunctions that are already in the works don’t stop this, then on October 2, 2020 the following changes will go into effect:

  • There will now be two different petition forms to file for O and P visas.
    • To file for O and O-2 visas, you will use an I-129O
    • To file for all P visas (P-1, P-1S, P-2, P-3, and P-3S), you will use an I-129MISC
  • The new fee for filing for an I-129O will be $705.
  • The new fee for filing an I-129MISC will be $695.
  • There will be a cap of 25 beneficiaries per petition.
    • This means that an orchestra or performance troupe with 60 performers and 10 staff and crew will now need to file four—yes 4! – I-129MISC petitions (3 for the performers and 1 for the staff and crew) at a cost of $2780 for standard processing. If they want premium processing, then that will be an additional cost of $5760.
    • This also means that if any one of the 4 petitions gets an RFE, they will all get an RFE.
  • And speaking of premium processing, the current premium processing fee of $1440 will remain. HOWEVER, premium processing will now be 15 business days as opposed to 15 calendar days—effectively making it 19 days.

As part of the Final Rule, DHS provides written responses to the thousands of comments it received in opposition of these changes, including specific concerns and objections raised from throughout the arts industry. To those of you interested in mucking through the Final Rule’s 500 pages of flaming simian excrementum just click on the actual picture of flaming simian excrementum, below:

However, in response to detailed comments submitted by hundreds of arts organizations objecting to these proposed changes, several DHS pearls caught my eye:

  • In response to the concerns that these changes will have a particularly burdensome impact on the already struggling performing arts industry, DHS contends that this will have no economic impact on those who file O and P petitions and writes:  
    • “DHS does not intend to deter or unduly burden petitioners requesting workers in the arts, but any preferential treatment provided to petitioners for performers and musicians is borne by other petitioners, applicants, and requestors. DHS declines to require other applicants and petitioners subsidize the cost of petitioning for workers in the arts.”
    • TRANSLATION: “I once took my kid to the Monster Truck Dixie Rebel Stampede and Dinner Show and they charged me $17.50 for a Double Energy Mountain Dew! So, you people who work in the arts make more than enough money.”   

  • As to why USCIS is charging more for O petitions than P petitions, DHS writes:
    • “DHS implements fees based on data that show adjudications of O nonimmigrant   petitions require more staff, and are therefore more costly, than adjudications of petitions for nonimmigrant workers that may be requested using Form I129MISC.” 
    • TRANSLATION: “It takes a lot of time to confirm whether or not the role of the Phantom of the Opera is, in fact, a lead or starring role. And because its an opera, you’ll need a no-objection letter from AGMA instead of Actor’s Equity.”

  • In response to the issue of whether or not USCIS will continue to consider traditional expedites for non-profits who have an emergency or an immediate need (such as replacing a sick U.S. artist with an available non-US artist), DHS writes:   
    • “USCIS has implemented an expedite policy for certain petitions in the past. Whether a petitioner seeks to enhance the cultural and social interest in the United States may have been considered when USCIS decided to favorably exercise its discretion when considering expedite requests…DHS may consider whether to provide expedited processing for certain petitions based on its workload in other areas and ability to meet promised deadlines. Also, depending on the immigrant or nonimmigrant classification sought, the petitioner may request premium processing service by filing Form I-907 and paying the associated fee.
    • TRANSLATION: “We need the cash, so cough up the $1440 you Godless Leftists!
  • In response to the concern that increasing the premium processing period from 15 days to 19 days could imperil last minute engagements or emergencies, DHS writes:
    • DHS believes the possibility that a petitioner requesting premium processing service may need to wait a few additional days for adjudicative action is a small cost to impose for being able to expand premium processing to more requests and reduce the likelihood for future suspensions of premium processing service.
    • TRANSLATION: “Stop whining or we’re deporting Lin-Manuel Miranda! He’s Mexican, right?”
  • In response to the concern that putting a cap of 25 beneficiaries per petition could have a devastating financial impact on large performing arts tours, such as theater productions, orchestras, and dance companies, DHS responds:
    • USCIS must conduct full background checks on named workers and does not merely check to determine how much time the worker has spent outside of the United States…Because USCIS completes a background check for each named beneficiary, petitions with more named beneficiaries require more time and resources to adjudicate than petitions with fewer named beneficiaries. This means the cost to adjudicate a petition increases with each additional named beneficiary.
    • TRANSLATION: “Do you have any idea how long it takes to determine whether any of those musicians in the brass section have ever posted anything nasty about Beloved Leader?”
  • In response to the concern that, as USCIS often loses related petitions (such as O-1 and O-2 or P-1 and P-1S) and incorrectly sends them to different examiners who review them at different times, then requiring multiple petitions for the same large group will increase the likelihood of confusion and unnecessary RFEs, DHS asserts:
    • “DHS disagrees with commenters that the separating of Form I-129 will create confusion and delays.”
    • TRANSLATION: “Sorry we cannot offer any suggestions to address or solve your problem. Have we addressed all of your customer service concerns?  Have you tried our special for premium processing service for our most valued customers?
  • Many commenters on behalf of multiple industries all raised the question of why do this now in the midst of a pandemic and a economic crisis impacting all industries, to which DHS responds:
    • DHS makes no changes in this rule in response to the pandemic. USCIS considers  all available data at the time it conducts its fee review. USCIS conducted most of  the FY 2019/2020 fee review in FY 2017, before the emergence of the pandemic. At that time, USCIS did not foresee, and could not reasonably have foreseen, the effects of such a pandemic on USCIS receipt, revenue, or cost projections during the FY 2019/2020 biennial period, and we cannot project the effects at this time. The projections in this rule were based on conventional conditions, and with no way of knowing or being able to predict the long-term effects of COVID-19 at this point, DHS must assume that filing volumes will return to near previous levels  within a reasonable period.
    • TRANSLATION: “There is nothing to see here. All is well. Beloved Leader is the best leader in the world and all other leaders are jealous of him and his very large hands. All hail Believed Leader, Infallible General, Defender of the Faith, and Protector of the Good People Who Know Who You Are!”

And, on the heels of our recent post earlier in the day on July 31 that USCIS seems to be targeting artists who have remained in the U.S. during the pandemic without performing, we have learned of yet another artist receiving an RFE wherein USCIS is challenging whether or not the artist has been violating her status by remaining in the U.S. and not performing during the pandemic. So this may be a trend.

DHS’s recent actions, fueled by its spurious and odious responses to very legitimate concerns raised by an industry already struggling for survival throughout the world, needs to further the already excessively tested resolve of all of us to keep the doors open to artists throughout the world. In short, we shall fight them by being cleverer, more creative, and smarter than they are. We shall fight them in our petitions. We shall fight them at the consulates. We shall fight them at the airport immigration halls. We shall fight them with mockery, distain, and relentless provocation. We shall fight them at the ballot box, but we shall never surrender!

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit OUR NEW WEBSITE: ggartslaw.com

THE OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

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

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USCIS May Be Coming After Unemployed Foreign Artists

July 30th, 2020

We have seen two Requests for Evidence (RFE) this week for foreign artists who are currently in the U.S. with O-1 classification (both of whom have been previously approved for O-1 classification multiple times) and who filed new O-1 petitions to extend their status and remain in the U.S. In each case, neither artist has had any engagements since early this year as, like everyone, all of their engagements were cancelled due to Covid-19. In each case, the RFE has asked for proof that the artist has maintained their status by having work or other valid employment between March 2020 and now.

USCIS is taking the position that remaining in the U.S. without work violates their O-1 classification regardless of the reason. While this requirement is technically correct, in my experience (and I am quite old) this rule has never previously been applied to artists as they are not required to have full-time employment in the first place. Regardless, taking this position at this time knowing that the entire performing arts world has been shut down and that many artists cannot logistically or safely leave the U.S. is unconscionable, shameful, callous, immoral, and sinister. (Which, as it happens, spells U.S.C.I.S.) In one instance, USCIS actually took the time to go onto an artist’s website to see that all of the artist’s spring dates were cancelled!  

Whether or not two instances counts as a trend is debatable. However, when it comes to USCIS, I have always taken the position that it only takes one pig to nose its way out of the sty and soon the rest will follow. And, on this particular farm, all of the farmers are too tap-shackled in a bacchanalian orgy of hydroxychloroquine and bleach to notice what their pigs are up to.

So, when preparing O or P petitions for artists who are currently in the U.S. and wish to extend their status and remain, we recommend the following:  

  • Do not list any cancelled dates on an artist’s website.
  • Do not mention in the petition that the artist’s recent U.S. dates were cancelled and have been re-scheduled for 2021. (Yes, one of the aforementioned cases did that.)
  • A petition must provide some type of evidence that the artist has been working during the pandemic. As artists are required to have work authorization regardless of whether or not they were paid, this does not have to include paid engagements. Anything that required the artist to be physically present in the U.S. will work: on-site rehearsals, in-person teaching, or live recordings or streaming with U.S. artists which could not have taken place outside of the U.S. There should also be no gaps longer than 60 days between such engagements.
  • You can use pay-stubs, emails, letters, or anything other than from the artist or the artist’s manager as proof.
  • This will also apply with regard to an artist’s future engagements listed on the petition. As no one knows when anyone will ever get back inside a theater or concert hall, many future engagements are being booked as streamed concerts. Such concerts must require the artist to be physically in the U.S., such as on-site rehearsals, in-person teaching, or live recordings or streaming with U.S. artists which could not have taken place outside of the U.S.
  • Both RFEs have taken issue with the fact that the artist’s future engagements have gaps in excess of 60 days. While there is no formal rule on how much time is allowed between engagements, in practice we have never seen USCIS baulk at anything less than 90 days. They seem now to have defaulted to 60 days.  

While there has been no formal announcement regarding new policies, USCIS did formally clarify last month its longstanding policy that USCIS examiners have broad interpretive discretion to determine whether or not a petitioner has satisfied the requirements for a visa petition to be approved—which usually involves the examiner consulting with the gods of their reptilian forbears. As only a few weeks ago, the White Pride Piper attempted to kick out foreign students altogether for taking on-line classes, I am not surprised to see yet another effort to cull anyone they feel should not be here unemployed.

And I still don’t know when U.S. Consulates will start issuing visas again or how long the travel bans on citizens from certain countries being able to enter the U.S. will remain in place…although I cannot fathom why anyone would want to come here at the moment anyway.    

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit OUR BRAND NEW WEBSITE: ggartslaw.com

THE OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

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

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July 14th Concert in Paris

July 15th, 2020

By Frank Cadenhead.

The July 14th Concert at the foot of the Eiffel Tower in Paris went ahead as planned last night – with some adjustments for the current health climate. This iconic Bastille Day event, followed by a famous fireworks display, is now in the eighth year, and was televised in France, on Eurovision throughout Europe, and on television in more than 50 countries and on the internet around the world.

Conducted by Eun Sun Kim, the Orchestre National de France had only 65 musicians on stage for this performance (about half of normal) but was also on occasion joined by the children’s and adult Radio France choirs on stage garding a certain space between each vocalist. The star-filled lineup includes singers Ludovic Tézier, Benjamin Bernheim, Fatma Said, Sonya Yoncheva, the cellist Sol Gabetta, violinist Lisa Batiashvili, with 21-year-old Lucienne Renaudin Vary on the trumpet playing music from West Side Story, and pianist Khatia Buniatishvili. The lack of audience drained some of the spirit out of the event and the only applause for the performers was from the orchestra members themselves. Looking briefly at the long and empty park space, Champ de Mars in front of the stage was sad, remembering that the previous year counted some 300,000 attendees. Seeing the sun set on Paris from the circulating helicopter, however, gave some solace. It was followed by the spectacular fire works display using the Eiffel Tower as the centerpiece.

The only part of the concert now on YouTube is Yoncheva singing “Eben? Ne andro lontana” from Catalani’s La Wally – the aria brought to the world by the film Diva. The entire concert will probably be available on YouTube soon.

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Trump Punishes Students For Taking On-Line Classes

July 7th, 2020

Last night, July 6, 2020, Immigration and Customs Enforcement (ICE) announced that all F-1 (student) visa holders attending schools that have decided to operate entirely on-line for the fall 2020 semester due to the COVID-19 pandemic will not be permitted to take a full online course load and remain in the U.S., forcing schools and non-U.S. students to make potentially life-threatening decisions if non-U.S. students wish to enter and/or remain in the U.S.

Click Here to read the proclamation:

Students who are currently outside the U.S. and are enrolled in schools that will be offering only on-line courses during the fall 2020 semester will not be permitted to receive F-1 visas (assuming they can find an open consulate) or enter the U.S. (assuming they are not already a citizen on the list of banned countries.) Such students who are already in the U.S. and enrolled in such programs will be required either to depart the U.S. or transfer to a school which will be offering in-person and/or on-campus courses. If they fail to do so, they will be subject to deportation proceedings.

Students attending schools that have decided to adopt a hybrid model—that is, a mixture of on-line and in-person instruction—will be permitted to remain and/or enter the U.S. provided such students are not taking an entirely on-line course load for the fall 2020 semester and are taking only the minimum number of on-line classes required to make normal progress in their degree program.

No, we do not actually know how they will define “the minimum number of online classes required to make normal progress in their degree program. Presumably, they will be looking for hybrid programs that require the majority of the course instruction to be in-person as opposed to on-line. In other words, offering or requiring only a single in-person course and everything else on-line may not be sufficient.

ICE has also given no clarification on how hybrid programs will be required to schedule the on-line versus in-person instruction throughout the fall 2020 semester. That is, we do not know whether or not F-1 students who are already outside of the U.S. will be permitted to enter if the first half of their fall 2020 semester will be on-line only with in-person courses to be determined later in the semester. They could be denied entry or required to leave until they will actually be taking in-person courses.

There is no indication at this time that this rule will have any impact on F-1 students who have completed their course of study and have either already been approved for or are eligible for OPT. They are not required to be taking courses in the first place as, presumably, they have already graduated. Those students on CPT, on the other hand, WILL be subject to these new rules. While there is not much we know definitively, at this time we are recommending the following:

  • Schools should consider developing hybrid programs that provide for some degree of socially distanced in-person rehearsals or one-on-one instructions throughout the fall 2020 semester.
  • Ensure that all F-1 students who are currently outside the U.S. be given additional  documentation from their school that they can provide to consulate and immigration  officers confirming that (i) they are not taking an entirely on-line course load and (ii) if the first part of the fall 2020 semester will be on-line, why such courses cannot be taken  outside of the U.S.
  • Presenters, venues, agents, and managers should confirm that any F-1 artists they have engaged or represent are enrolled in schools with eligible hybrid programs for the fall 2020 semester.    
  • Consider switching eligible students from F-1 to O-1 sooner rather than later.

There has been some speculation as to the motivations behind this, including that the White Pride Piper wants to force schools to re-open. More likely, however, is that he is taking advantage of the pandemic to further his previously stated desire to limit the number of F-1 students in the U.S. It has long been the opinion of the Ringwraiths in his administration that F-1 students pose an inherent threat to our self-perceived greatness.

Lastly, just as a reminder, many U.S. Consulates remain closed and the travel bans on citizens from certain countries being able to enter the U.S. remain in place.

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

THE OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

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

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DECODING TRUMP’S JUNE 2020 NON-IMMIGRANT VISA BAN (DO NOT PANIC!)

June 22nd, 2020

As you are doubtlessly aware by now, the Dark Lord has just issued a new immigration proclamation.

IT WILL HAVE LITTLE, IF ANY, SIGNIFICANT IMPACT ON ARTISTS!

Now, take a breath and read on…

Fresh from his triumphant campaign rally before a crowd of several dozen (including a frightened family of squirrels trapped in the duct work), Trump lumbered back to his bunker to issue his long threatened Part II of the immigration proclamation he issued back on April 22, 2020. If you recall, that proclamation imposed a ban through December 31, 2020 on the issuance of immigrant visas (green cards) to people outside of the U.S., even if they have already been approved. (Those already in the U.S. and approved for green cards can continue to apply for Adjustment of Status, but that process has slowed to a crawl that would try the patience of a slug.) At the time, he threatened to issue another proclamation at a later date dealing with non-immigrant visas for temporary workers. And, like the sequel to Sharknado, that time has come.

Effective June 22, 2020, and continuing through December 31, 2020, Trump has banned the entry of anyone into the U.S. on H-1B, H-2B, J, and L visas.

It DOES NOT pertain to O or P visas (including O-1, O-2, O-3, P-1, P-2, P-3 and P-4)

  • J visas are for cultural and educational exchange programs, including artists entering the U.S. for artistic exchange programs (such as Rhodes Scholars), but as they are messy and come with strings that can entangle future visas and green card opportunities, they are generally not recommended for artists unless there are no other options.
  • The arts world rarely sees H-1B visas as they are for “highly skilled” workers which, though sometimes can be used for arts administrators or professionals, are not available for performing artists (It should not come as a shock that the U.S. government does not include performing artists in the “highly skilled” category.) Also, they are, and always have been, excessively expensive and complex to get, and come with considerable restrictions, including quotas.
  • H-2B visas are for seasonal non-agricultural labor (such as food processing, hotel work, and landscaping) and L-1 visas are for high-level and specialized employees of multinational corporations.

Fortunately, The American Immigration Lawyers Association has been anticipating this for a while and lawsuits and requests for immediate injunctions were already being prepared and will likely be filed by the end of the week.

As justification for both of these proclamations, Trump has cited the need to protect unemployed U.S. workers impacted by economic disaster of Covid-19. However, he had already threatened and tried to implement these very same changes long before Covid-19. Also, as H and L visas are used almost excessively by large corporations, the science and technology industry, universities, and major businesses, there will be a considerable amount of push back. (Aren’t large corporations part of his base, you may ask? Yes, which is the only thing that has been stopping him from doing this before. So why is he doing this now? Simple: his larger and more cherished base does not need to employ non-U.S. workers to assemble garden art out of beer cans.)

As there continues to be concerns about travel bans and consulates, here is the latest news :

  • With specific exceptions, foreign nationals who have been in any of the following countries during the past 14 days may not enter the United States: China, Iran, 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, Vatican City), the United Kingdom (England, Scotland, Wales, Northern Ireland), the Republic of Ireland, Brazil, and Middle Earth. U.S. Citizens and green card holders, certain family members, and other individuals who meet specified exception, who have been in one of the countries listed above in the past 14 days will be allowed to enter the U.S., but only through one of 15 airports.
  • The Department of State has not yet released any updates regarding procedures for reopening Consulates and Embassies nationwide.

For those of you so inclined, here is a link to the actual June 22, 2020 Executive Order, which can also be printed out and mailed as a Covid mask to the people of Florida and other U.S. States which seem to have misplaced their own:

https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

THE OFFICIAL LEGALESE:
THIS IS NOT LEGAL ADVICE!

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

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WE ALL NEED TO STREAM SOMETIME

June 15th, 2020

(Understanding Streaming Rights)

As we all try to figure out how to cobble the performing arts world together, more and more venues, presenters, and artists are turning to streaming–live streams, virtual performances, and showing archived footage of previously recorded concerts.

For now, these efforts are critical as a means to stay connected with audiences. Soon, these will need to be turned into additional revenue streams as well. Regardless, this is unchartered territory for many, particularly with regard to the rights and licenses necessary to stream performances and recordings.

But first things, first: We need to clear up a few definitions.

“Streaming” is where you upload a recording to a source or platform so that it can be heard or watched by an audience over the Internet. While this can be done through your own website or server, most recordings and videos are viewed through a third party platform such as YouTube, Instagram, FaceBook, Vimeo, SnapChat, Netflix, YouTube, Hulu, Pandora, Spotify, TikTok, RiffRaff, Taffeta, Titipu, KoKo, PishTush, PoohBah, and YumYum, among others.

Don’t be confused by the terms “Streaming” and “Live Streaming.” They mean the same thing. Remember, there is no standard terminology in the performing arts industry. Whether you intend to stream an archival recording of a performance, create and stream a new recording made in a studio or venue, broadcast a live concert to an audience who can watch it in real time as it is taking place, make a recording available for free, or make a recording available on-demand for a fee, these are just various types of “streaming.”

The key distinction is that a streamed recording remains at all times on the platform for the audience to watch only through the platform and cannot be downloaded. Downloading is when you are able to take a recording from the Internet and copy it from the platform to your own computer or phone. Apple I-Tunes, for example, is a downloading platform whereas Apple Music is a streaming platform. Streaming is like listening to the radio in your car. Downloading is like buying the CD. Similarly, Amazon Prime gives you the option of renting a movie to watch for a fixed period of time or buying a copy of a movie to download and watch on your own devices.

Whether using an archival recording or streaming a live concert, Obtaining the necessary rights and licenses to stream a concert or performance essentially involves the same considerations and questions you would ask (hopefully) with regard to presenting any live performance:

  • Do you need a license from the owner of the music to perform the music? 
  • Do you need a license from the owner of the music to use the music as part of a musical, dance performance, or opera?
  • Do you need a license from the owner of the music to make re-orchestrations, new arrangements or significant adaptations?
  • Do you need a license from the owner of the music to record and stream the performance of the music?    
  • Do you need a license from the performers to record and stream their performance?
  • Do you need a license from the owner of the recording of the music to stream the recording?

Essentially, to get permission to record and stream a performance, you will potentially need licenses from three different parties:

  1. The Performer(s)
  2. The owner of the music
  3. The owner of the recording

Licenses From The Performer(s)

If your intent is to stream an archival recording, you will need to ensure that you had the right to make an archival recording in the first place and what you are allowed to do with it. This should have been spelled out in the initial engagement contract for the performance. If not, you will need to go back to the artist(s) and request permission to stream the existing recording.

If you are seeking to create a new recording or record a live concert for streaming, then among the other engagement details you will need to request permission from the artist(s) to record and stream the performance. Certain artists, particularly orchestras, may have union contracts or other restrictions (such as exclusive recording agreements with labels) that will not permit any recordings or streaming without additional licenses and fees.

Even if you get all of the necessary licenses from the artist(s) to record and stream their performance, you are only a third done. Remember, unless an artist is recording her own music, artists do not control the music they perform. So, just because an artist gives you the right to make and stream an archival recording of the artist or the right to record and stream a live performance, you will still need to obtain permission from the owner of the music to perform, record, and stream. 

Licenses From The Owner of The Music

Any time you intend to perform music at a live concert, you need permission to perform it (what I like to call “stand and sing.”) Except for instances of music being used as part of a musical, dance, or opera production, such permissions are most often arranged by purchasing performance licenses through Performing Rights Organizations (PROs) such as ASCAP, BMI, SESAC, GRM, etc., when you purchase a performance license from a PRO, the terms of the license will govern what you can and cannot do with the music as part of the “performance.” Like everything else, nothing is standard. Everything depends on the type and terms of the license you purchased. These will differ from nightclubs to non-profit venues to schools to for-profit theatres, etc, so you will need to read your specific license to see what you can and cannot do and what additional rights you might need. However, here are some generalizations:

  • More often than not, streaming is covered in a performance license as long as the end user is viewing the recording on a platform licensed by the PRO, such as YouTube, Instagram, FaceBook, Vimeo, SnapChat or TikTok. Embedded, proprietary players owned by these licensed platforms (YouTube being the most common example) and embedded into the presenter website are also covered.
  • More often than not, streaming from the websites of colleges and universities (.edu) are also usually covered by the performance license.  
  • More often than not, streaming directly from the website of an artist, venue, or presenter is NOT COVERED without obtaining additional licenses. This is true of live streaming as well as archived videos of past performances. So, when in doubt, always opt to stream through a platform already licensed by the PRO.
  • Downloadable recordings are NOT COVERED. These rights need to be obtained directly from the owners or publishers of the music. Most PRO’s cannot issue such rights.
  • Performance licenses also do not cover the performance of music as part of a musical, dance performance, or opera. Those licenses must be obtained directly from the owner or publisher of the music. Most PROs cannot issue such rights.
  • Most performance licenses do not include the right to make re-orchestrations, new arrangements, or significant adaptations of the music. Those licenses must be obtained directly from the owner or publisher of the music. Most PROs cannot issue such rights.

Licenses From The Owner of The Recording

An oft overlooked concept is that recordings are separately, copyrightable creations. When a recording is made, it is owned by the person or organization that made, edited, and mastered the recording and NOT by the owner of the music which was recorded and NOT by the performer who performed it. (Believe me, this comes as quite a shock to composers and performers who presume that if they are on the recording then it’s also theirs to use.)  So, once you get all of the necessary rights and licenses to record and stream a performance, you will also need to make sure that you obtain permission from the person who recorded it—even if it is a volunteer or a member of your staff. In fact, especially if it is a volunteer. Short of children performing with fire and audience sitting on broken glass, volunteers are often the largest source of grief. (Ok, there’s also the board to consider, but I digress.)

A few final thoughts:

Everyone needs to obtain rights and licenses regardless of whether or not you charge a fee to watch the streaming concert.

  1. If you don’t know what rights you already have or what rights you need, always reach out to the performer(s), the owner of the music, and the owner of the recording. Never assume or just hope that someone else with do the “right thing.” The “right thing” is an extraordinarily subjective concept.
  1. Anyone can charge whatever they want to issue a license, or not charge anything at all, or refuse to issue a license for any reason. Everything is subject to negotiation as influenced by each person’s degree of largesse, munificence, guilt, desperation, fear, uncertainty, pride, greed, wrath, envy, lust, gluttony, and sloth.
  1. There are no special Covid-19 exceptions.
  1. There are no special non-profit or school exceptions.
  1. Everyone is screwed right now. No one is more or less screwed than anyone else. Everyone is going to need to compromise if we are going to survive this.

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit 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 email, filing a lawsuit, or doing anything rash!

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

An Important Message From Opera Europa

April 27th, 2020

Opera Europa
The professional association of opera companies and festivals in Europe.

THE NEED FOR CULTURE

When times are hard, we more than ever need the solace of culture. Art, books, films, music, theatre are therapy for disrupted lives.
We recognise that Governments must impose restrictions on public gatherings in order to protect lives; and we are committed to provide as much as we can free online. OperaVision, thanks to support from the European Union’s Creative Europe, is a leading player in that.

But we must also act to safeguard the livelihoods of artists and the companies that employ them for the time when public performances may be safely resumed. Free streaming does not pay wages or replace income from ticket sales.

We realise that theatres will be among the last to re-open their doors and trade normally. They will therefore need protection for this year and beyond, in order to survive to offer future employment to artists and the many supporting craftsmen and technicians.

Just as urgent is the need to offer a lifeline to the many independent artists whose source of income has been abruptly cut off. The whole opera sector asks for local, regional, national and international bodies to offer immediate and easily accessible support towards the basic needs this year of these vital members of the community.

Nicholas Payne
Director of Opera Europa
April 2020

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DECODING TRUMP’S IMMIGRATION BAN

April 23rd, 2020

By Brian Taylor Goldstein

To those of you wondering what is happening with The Screaming Carrot Demon’s immigration ban, his Executive Order slithered out of the White House today. Here’s the deal:

Today’s spewage only addresses immigrant visas (green cards). Though there is a fairly long list of exceptions, for the next 60 days people outside the U.S. will not be able to receive green cards even if they have already been approved.

The Executive Order states that another order will be issued dealing with non-immigrant visas (O and P) in 30 days. However, so long as the consulates remain closed, no one is getting visas O and P visas anyway. All U.S. embassies and consulates have currently suspended non-immigrant interviews and are not issuing visas. No announcement has been made about when the government plans to reopen them. It is likely that consulates will reopen on a rolling, country-by-country basis depending on when Trump’s ego next sees its shadow. Not surprisingly, if Trump wanted to thwart O and P visas, he would not need to issue an Executive Order. The State Department could just keep the consulates closed or on a reduced staff. However, an Executive Order is better for red hat ratings.

In the meantime, USCIS service centers continue to receive and process visa petitions, issue receipt notices and approval notices—as well as RFEs and Denials. (Not all human viruses are microscopic!) So long as USCIS continues to process petitions, I “suspect” that artists who are already in the U.S. will continue to be able to extend and/or change their status, but those outside who get approved petitions will have to wait until the consulates re-open.

For those of you so inclined, here is a link to the actual Executive Order, which can also be printed out and used as a Covid mask.

Print Your Own Covid Mask

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit 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 email, filing a lawsuit, or doing anything rash!

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

USCIS JUST THREW ARTISTS A CRUMB!

April 7th, 2020

Unemployment and the CARES Act For Non-US Artists

April 7, 2020

By Brian Taylor Goldstein

Shocking as it may sound, USCIS has passed a tiny wind of hope in the direction of artist visas during this coronavirus pandemic.

The Department of Homeland Security (which sets the policies for USCIS) has confirmed that applying for unemployment benefits and/or applying for benefits under the recently enacted Coronavirus Aid, Relief, and Economic Security (CARES) Act WILL NOT be taken into consideration as violations of the Public Charge Rule when reviewing petitions for O or P status or green cards. (This does not include Medicaid or any government program (other than unemployment or CARES) which requires a “means test”—ie: programs which require someone to show that they make under a certain level of income.

It remains to be seen as to whether or not applying for or receiving unemployment benefits will later be insidiously used by USCIS as a “gotcha” under the separate rule that if an artist becomes unemployed, they are not authorized to remain in the U.S. and look for work and are required to leave. So, applying for unemployment benefits could “theoretically” still be used by USCIS as an admission by an artist that they have no work. However, as I wrote last week, USCIS has also generally, sorta, kinda, implied that they will be “reasonable” in light of the Covid-19 situation…and that’s about as good as you’re going to get from them until they change their minds.

For now, if any non-US artist finds themselves furloughed or unemployed, which is likely to be most of you, you may now take advantage of whatever unemployment and/or CARES benefits you may be entitled to. So glissando, tap dance, and project your way to those websites and start applying before the airlines and pharmaceutical companies gobble all the funds up. Godspeed.

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit 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 email, filing a lawsuit, or doing anything rash!

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

A CORONAVIRUS VISA ROUNDUP FOR NON-US ARTISTS

March 31st, 2020

Cancelled Engagements, Unemployment, Layoffs, and Visa Renewals

March 31, 2020

By Brian Taylor Goldstein

As the tumbleweeds blow through Times Square and we begin to consider the viability of Easter peeps or even kale to supplement the dwindling toilet paper supplies, there is an understandable amount of angst and confusion on many fronts. Not least among them are non-U.S. artists who find themselves trapped inside the U.S. with no engagements, or with visas about to expire, or, like so many, laid off or unemployed.

There is a lot of conflicting information out there primarily because U.S. immigration policies are determined by the U.S. Government which has provided little or no direction on these issues; they are far too engrossed trying to quell the spread of the Coronavirus through sacrificing chickens, burning witches, assessing blame, and finding new and enthralling ways of praising and consoling Our Dear Beloved Leader and Perfect Incarnation of The Appearance That A Leader Should Have.

So, in no particular order, here is an update of what we know (or sort of know based on what we can surmise from what we know.) Premium Processing

1. Premium Processing
In case you have not already heard, USCIS suspended Premium Processing effective March 20, 2020. Until further notice, any future petitions filed with premium processing will automatically be sent to standard processing and your premium processing fee returned. Current standard processing times are ranging from 3 – 6 months at both of the paradoxically named USCIS “service” centers.

2. Artists Trapped In The U.S.
Due to the quagmire of travel restrictions, cancelled flights, and border closures, there are a number of artists who find themselves stranded in the U.S. with visas about to expire and who are unable to leave. Has USCIS has made any special exceptions or provisions for artists who may be forced to remain in the U.S. beyond the expiration date of their visa until they can fly home? Certainly, they will not be rounded up as enemies of the state? To the contrary, if an artist finds themselves in the U.S. in such situation, then before their current visa expires they will need to file a petition either to extend their current status and extend their stay, or change their current status to a different status and remain.

Here’s a real life question we received on this issue:

My O-1 visa expires in May. I was approved for a new one starting in August. My petitioner did not ask for an extension of stay because I was supposed to fly home for a summer festival, but that has been cancelled and now I want to stay in the U.S. What are my options?

If the artist has some engagements in the U.S. between May and August (which is unlikely, but possible), then prior to May she could file a new I-129 petition (which would basically be the old one re-copied and re-packaged) asking for an extension of stay. However, if she does not have engagements to justify her remaining in the U.S. on an employment visa, then prior to May she will need to file an I-539 petition to change her status from O-1 to visitor (B-1/B-2). Of course, to file a new I-129, she will need to pay the USCIS filing fee of $460. To file an I-539, she will need to pay the USCIS filing fee of $370, plus a biometric fee of $85. Biometrics consist of going to a local USCIS office to be photographed and provide fingerprints. However, all local USCIS office are all closed. So, presumably, the I-539 petitions will just get put on hold—which is probably a good thing as she can stay in the U.S. while the petition is pending. I should point out that in 99.99999% of cases, I-539 petitions are denied, so they are really only useful to buy time.

3. Consulates
Most of the U.S. consulates around the world have closed. London, for example, is currently not taking appointments until July. We do not know when they will re-open. We asked the U.S. Department of State and were told: “April! No, June? Wait! They’re closed? They’ve always been closed. I mean, open. They’re open now, just closed to the public. Temporarily.”

4. What Happens To A Visa If An Artist Is Laid Off?
Here’s another real life scenario:

We are looking for information about the impact of layoff on our O-1 visa holders. The remainder of our performance season has been cancelled. At this time we are continuing to pay our performers as per the schedule that is in their contract. Unfortunately the possibility of a layoff is looming. How would this impact the O-1 visa holders? Are their visa’s invalidated if we have to do layoffs?

Fortunately (sort of), as non-US artists are required to have artist visas to perform in the U.S. regardless of whether or not they are paid, a layoff, per se, does not impact the validity of their O-1 visas. Rather, the issue is whether or not the artist’s services will be required at all. In other words, are we dealing with a cancelled performance or a re-scheduled performance?

If an artist was approved for an O-1visa to perform in a specific engagement or production, and that engagement or production is cancelled, then they are required to leave the U.S. as, unless they were approved for a multi-employer visa, they no longer have a reason to be here. However, if the scheduled performances are merely being re-scheduled for a later date during the validity period of the artist’s existing visa, and the artist’s services will still be needed, then I would argue that they can remain in the U.S. regardless of whether or not they are paid—they just won’t be able to work. In other words, a layoff means they are still employed, just not getting paid.

Whether or not the artist can afford to remain in the U.S. without being paid is another issue entirely…and which leads to the next question.

5. What Is The Impact On A Visa If an Artist Applies for Unemployment or Medicaid?
Here’s a hard one:

As you probably already know, all of my concerts until June have been cancelled, thus putting me into a difficult situation financially. I wanted to consult with you whether it would be a good idea for me to apply for unemployment benefits, or is that going to jeopardize my current O-1 status and future potential status?

Unfortunately, this creates two not insignificant problems:

  • (a) Under Trump’s recently enacted “public charge rule,” applying for any kind of public assistance (unemployment, Medicaid, etc) could be used to deny and/or delay future visas or green cards. When the artist next needs to obtain a new O-1, if he elects to remain in the U.S. and seeks an extension of stay, he would need to disclose that he applied for and/or received public assistance. This will lead to his being required to explain why and seek a waiver. USCIS has indicated that they will be “reasonable” in light of the Covid-19 situation, but we have no idea what that means. I trust USCIS about as much as trust my mother when she asks for my honest opinion. Alternatively, the artist could avoid this question by leaving the U.S. when his current visa expires, applying for a new visa at a U.S. consulate, and then re-entering. However, should at some point in the future he want to apply for a green card, he would need to disclose the public assistance and request a waiver at that time.
  • (b) The other problem is that O and P visas are “employment-based” visas, which means an artist is only authorized to be in the U.S. on such a visa if the artist has employment. If an artist becomes unemployed, they are not authorized to remain in the U.S. and look for work. They are required to leave. So, applying for unemployment benefits equates with admitting the artist is here illegally.

6. Requests for Evidence and Notices of Intent to Deny
USCIS has announced that any petitioner who receives a Request for Evidence (RFE) or Notice of Intent To Deny (NOID) between March 1 and May 1, 2020, will be given an additional 60 calendar days to respond after the response deadline set forth in the RFE or NOID. However, USCIS will continue its policy of employing rabid ferrets to write the RFEs.

7. Can A Visa For A Cancelled Concert Be Reissued?
Here’s a question from a dear soul who believes that if we just clap hard enough, Tinkerbell will grow her wings back:

We got an artist approved to perform for us in June. That date, of course, has now been cancelled. However, we have rescheduled the concert for the 20/21 season. Since we already applied for the visa and got it approved, and given that we only had to cancel because of the coronavirus, will USCIS re-approve the visa for the new date without having to file a new petition and go through the process all over again?

As my mother would say: “Bless his heart,” which, in the South, is the kind of thing one says when Charlene gets her head stuck in the fishbowl again…for the 3rd time. No, he will need prepare and submit an entirely new petition, and pay all of the costs and fees again. Because of all the cancellations due to the Coronavirus, the Performing Arts Visa Task Force (a long established coalition of leading arts organizations throughout the field—from the League of American Orchestras to the Association of Performing Arts Presenters) has asked the U.S. government to consider allowing approved visas to be re-authorized to cover re-scheduled dates without having to pay any new filing fees or costs. However, just to be on the safe side, I have added the same request in my letter to Santa Clause as I have greater faith in him making my wishes come true than I do USCIS.

Ok, folks. That’s all I got. Until everything changes tomorrow. As always, continue to check our website and Musical America for more frequent updates.

Stay safe and well!

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit 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 email, filing a lawsuit, or doing anything rash!

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Posted in Artist Management, Employees, Independent Contractors, Law and Disorder: Performing Arts Division, Uncategorized, Visas | Comments Closed

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