Posts Tagged ‘orchestra’

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Can A Union Walk Away With My Contract?

Tuesday, November 29th, 2016

By Brian Taylor Goldstein, Esq.    

Dear Law and Disorder: 

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

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

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

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

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

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

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

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

International Touring: A Report From The Front Lines

Thursday, November 19th, 2015

By Brian Taylor Goldstein, Esq.

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

Visa Stercus

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

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

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

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

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

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

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

Tax Stercus

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

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

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

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

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

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

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

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

General Travel Stercus 

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

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

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

Other Stercus

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

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

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

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

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

When Is A Plumber Worth More Than A Violinist?

Thursday, July 9th, 2015

By Brian Taylor Goldstein, Esq.   

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

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

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

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

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

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

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

Replacement Woes

Thursday, February 26th, 2015

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

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

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

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

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

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

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

_________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

When Is A “Work For Hire” Not A “Work For Hire”?

Thursday, July 10th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

An orchestra commissioned one of our artists to make an arrangement of a work for them to perform. We agreed that it would be a “work for hire.” Now, the orchestra wants to record their performance of the arrangement and has come to us asking for the artist’s permission. It was my understanding that a “work for hire” meant that the orchestra owned it. Is that not the case? If they own it, why are they asking us for permission? If they record it, can the composer still ask for royalties even though the commission agreement stated it was a “work for hire?” What am I missing?  

You’re not missing anything. You are absolutely correct that when a commission agreement expressly states that the commissioned work will be a “work for hire”, then the commissioner owns it. In which case, the composer isn’t entitled to anything beyond the commission fee.

Apparently, however, the orchestra doesn’t understand what a “work for hire” means. The orchestra was either using a commission agreement template they didn’t understand or believed that the term “work for hire” meant they were hiring someone to do work. Regardless, playing with templates and “legalese” is like self-medicating—someone always winds up in the ER.

If the orchestra has come to you of its own volition asking for the artist’s permission, then I would offer to grant permission in exchange for a mechanical license or other appropriate royalty. If they agree, then you have just obtained royalties for your artist that he or she would not otherwise be entitled to. Just because the orchestra legally owns the arrangement doesn’t mean that it can’t make a subsequent and legally binding agreement to pay royalties to your artist even though they are currently under no obligation to do so. Would you be taking advantage of the orchestra’s misunderstanding if the rights it already has? Perhaps, but I would submit that keeping any royalty to the statutory minimum and allowing the artist to obtain what should have been negotiated in the first place mitigates the karmic debt. Besides, rationalization and self-delusion are among the vital cornerstones of the arts industry.

________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

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

Licensing Video For A Tribute Show

Thursday, June 5th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We are in production of a new “Tribute” show with a video component.  We are grappling with what type of media is public domain or where public domain photos or video can be found.  None of the video production companies seem to have a definitive answer.  I have been searching for pertinent federal statute that address this issue.  Any thoughts? 

There’s an old joke where a man encounters another man frantically searching for something in the middle of the street. The first man asks: “What are you looking for?” The second man replies: “My keys. I lost them in the dark alley over there.” “Then why are you looking for them out in the street?” “Because the light is better out here!” Ba da boom.

Like the man in the street, you’re looking for the right thing, but in the wrong place. There is no federal statute that addresses your issue…at least, not directly. If you’re producing a “tribute” show with a video component, then any copyrighted material you want to include in your video will need to be licensed. Any material that is not protected by copyright is in the public domain and is free to use. The question you need to ask then is: how do you tell if material is still protected by copyright? The federal copyright statute will give you a formula, but not the answer. The answer depends on when the copyrighted material was first published. Most often, copyright lasts for the life of the owner plus 70 years. But who is the owner?

The challenge with videos is that you are often dealing with multiple copyrights with multiple owners. Let’s say, for example, that you want to include a video of the original artist (since this is a “tribute” show) performing at a concert recorded in the 1960s. There is a copyright in the video itself as well as a copyright in the music being performed on the video. So, even if you were to determine that the video is in the public domain, the music being performed may still be protected by copyright—or vice versa. We once had an orchestra contact us about creating a DVD to celebrate their 50th anniversary using old video clips from past concerts. Not only did we (well, to be fair, Robyn!) have to obtain licenses from publishers of certain contemporary works (as well as arrangements of older works), but we needed to obtain licenses from some of the original videographers who still owned the rights to the video footage. (Side note: ALWAYS take the time to get a written license or assignment from anyone whom you hire to photograph or videotape your or your performance—even volunteers!)

Photographs are similar. In every photograph are two sets of rights: the rights to the photograph itself (ie: the negative) and the person being photographed. The photograph itself may be owned by the photographer, but the photographer may or may not own or control the rights to the image or person in the photograph. While a person does not have a “copyright” in his or her own image, they do own rights of publicity, rights of endorsement, etc. So, for example, if you wanted to use a photograph of the famous artist you are paying “tribute” to, you would need to determine whether or not the photograph itself was in the public domain and whether or not you required any publicity or endorsement rights to use the image of the artist. (To make matters even worse, publicity and endorsement rights are controlled by state, not federal law, and can vary from state to state.)

Determining whether or not a photograph is the public domain is just like determining whether or not a video is in the public domain: when was it made? Who made it? Are they dead or alive? Even if the photograph or video is in the public domain, you still need to do a separate analysis of the contents or images on the photograph or video.

While we’re on the topic of “tribute” shows, its also worth mentioning that even if you are lucky enough to find all the videos and photographs you want, as well as the contents thereof, in the public domain, you still need to be wary of using the name and image of the original artist in the marketing and publicity materials of your tribute show. Things like names and even visual elements such as distinctive costumes or a physical characteristic of the original artist can trigger trademark issues that are entirely different from copyright and other rights. The good news is that with enough advance planning and thoughtful analysis, its entirely possible to create the type of video component you want. Many artists and producers successfully do this all the time, often with the blessing of the original artist.

__________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

 

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

The Elephant and The Frog

Thursday, May 29th, 2014

By Robyn Guilliams     

Dear Law & Order

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

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

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

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

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

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

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

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

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

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

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

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Beware of Easy Solutions

Thursday, April 17th, 2014

By Brian Taylor Goldstein, Esq.

A conductor we manage has been invited to conduct one of the orchestras of a University in the United States later this year. He has worked there once before when he conducted performances when he had a J-1 visa. On this occasion however due to the short length of the engagement (6 days), they have suggested that he should apply for a B-1/WB Business Status. The advantages of this is that the artist can do it himself, online, up to 72 hours before his departure and that the cost is approximately $4. The person I am dealing with at the University sent me “guidelines” which say that a person can enter the US on B-1/WB Business Status Visa, and receive an honorarium, as well as be reimbursed for travel and a per diem, if they will be a “lecturer or speaker” at a university or academic institution. They also told me that because our conductor is a citizen of a country that participates in the visa waiver program, he doesn’t even need to apply for such a visa and that it will be granted at the airport when he arrives. All he needs to do is register online for ESTA. This sounds too good to be true! I am very worried that this will not work. Otherwise, the university says we will need to get another J-1 visa.

Unfortunately…or, fortunately…your instincts are correct. The process for getting artists approved to perform in the United States can be so daunting to some that it is understandable that they look for easy or simple answers. With any legal issues—not just visas, but taxes, licenses, contracts, insurance, etc.—if something sounds too good to be true, that’s often the case.

B-1/WB Business Status (which, more accurately, is simply referred to as a B-1/B-2) is just the more formal name for “visitor status.” A B-1/B-2 (“visitor”) visa allows individuals to enter to the United States for visitor activities (touring, shopping, etc.) as well as certain business activities (meetings and conferences). B-1/B-2 status also permits an individual to be a lecturer or speaker at a university or academic institution, and receive an honorarium as well as travel reimbursement and a per diem.

A B-1/B-2 (“visitor”) visa can only be issued by a US Consulate. However, if an individual is a citizen of a country that participates in the Visa Waiver Program, then, by registering on-line with ESTA (Electronic System for Travel Authorization), he or she does not need to obtain an actual visa and are allowed to enter the US as visitors with only a valid passport. All of the restrictions applicable to visitors will apply—including the too often overlooked fact that an artist can never perform in visitor status, regardless of whether or not the artist is paid or unpaid.

Contrary to the “guidelines” you were provided by the university, your conductor is NOT a “lecturer or speaker.” If he is being engaged to conduct an orchestra then that is considered a “performance”, not a lecture or speech, and he is required to have an O-1 visa. The school is also wrong about the J-1 visa. This is not applicable. That is for an “exchange” program, which is also inapplicable in the case. Your conductor needs to obtain an O-1 visa.

 

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Too Fast and Furious To Get A Visa!

Thursday, February 20th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We filed a P-1 petition for an orchestra that is to perform at our venue. The petition was approved and it includes the orchestra’s conductor. However, the conductor just informed us that he does not want to go the consulate and apply for his P-1 visa (he says he just doesn’t have time for such an inconvenience.). Instead, he wants to enter as a visitor on the ESTA/Visa Waiver Program. He claims he did this when the orchestra toured the United States last year, including performing at our venue, and there was no problem, so he wants to do it again. We never realized he performed for us last year as a visitor. Are we in trouble? What if he insists on doing this again this season? What are the risks for us and for him?

Unless this is the conductor of the Hogwarts Symphony Orchestra, he seems to be laboring under the misbelief that he can waive his magic baton and dismiss anything he finds unpleasant, inconvenient, or displeasing. If only that were true.

Your situation presents several problems, the first and most immediate being that, under U.S. Immigration Law (however, inane we may all agree it is), an artist is not allowed to perform in the U.S. while on a visitor visa. Regardless of whether or not tickets are sold and regardless of whether or not the artist is paid in the U.S. or abroad (or even if the artist performs for free), no performance activities are permitted while an artist is in visitor status. Unless an artist has been admitted on an O or P visa, or has been admitted in some other applicable work authorized classification, any performances are illegal.

Technically, as the presenter/venue, you are supposed to verify the work authorization of each artist who performs for you. Had the conductor presented his visa (or lack thereof) to you last season, it would have quickly been discovered that he was not authorized to perform.  On the slim chance you were ever audited for immigration compliance, your venue could be found to have violated U.S. Immigration law by facilitating the illegal performance of a non-U.S. artist without proper work authorization. Penalties could range from fines to the greater scrutiny of future visa petitions.

I understand that, in this case, the conductor in question was able to enter the U.S on the ESTA program, perform, and leave without issue. He was lucky….and so were you. While I can see the temptation to try the same deception again, especially for a busy conductor who does not want to make a trip to a U.S. Consulate, such luck cannot continue indefinitely.

While U.S. Consular Officers and U.S. Customs and Border Protection Officers are as vigilant as possible, they cannot catch every violator on every occasion. The situation is much like running a red light, or committing any other criminal or penal violation, without getting caught. The lack of an arrest does not make the crime any less illegal. In this case, however, the penalties for an immigration violation can be more severe than a mere traffic ticket.

For an artist, presenting oneself at the border and asking for admission as a visitor, when the artist, in fact, intends to perform illegally constitutes a fraudulent misrepresentation to a federal law enforcement officer and constitutes a felony. If caught, the artist can be subject to immediate deportation as well as restrictions on future travel, visas, and work authorization. While I am familiar with many Non-U.S. artists who have managed to sneak in and out and perform as visitors on various occasions, I am also familiar with many who have been caught, even after years of being undetected.

In one case in particular, an internationally known artist who had held multiple O-1 visas over the course of his career, found himself with an approved O-1 petition, but unable to find the time to travel to a U.S. Consulate for an interview and to receive a physical O-1 visa. Instead, he entered as a visitor. Much to the dismay of him and his management, he was discovered. Because of his notoriety and international standing, he was not deported. However, because of his attempted fraudulent entry, his visitor privileges were revoked and for the next six years he was required to seek a “waiver of inadmissibility” every time he went to a U.S. Consulate to apply for a visa. Such a waiver adds an extra 2 – 3 weeks of processing time to the issuance of a visa.

I am also familiar with a management company whose future immigration petitions have been consistently flagged for extra review and processing when it was discovered that there were knowingly assisting artists in filing deception P-1 petitions.

As you can see, I would strongly advise the conductor that the immediate temptation of avoiding the time and hassle of a trip to the consulate is outweighed by the potential loss of his ability to travel and work in the U.S. Ultimately, if he decides to continue running the red light on the assumption that he won’t get caught, you and your venue should not be required to go joy riding with him.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Gosh, That Sounds Familiar!

Thursday, February 6th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

A composer has been commissioned to write an ‘original’ work for a particular soloist or specific chamber ensemble. The commission agreement stipulates that the performing artist is granted exclusivity, giving the artist a certain period of time in which he/she has the sole right to perform the new work for a specified length of time. During that period, the composer has an opportunity to expand the work, making certain modifications and reconfiguring the piece for a different and larger group, such as a chamber orchestra or full orchestra. Can the new work, although based on the originally commissioned score, be considered sufficiently different in its new configuration, to be exempt from the exclusivity requirements, outlined in the original commission?

One of the cornerstones of English Common Law is the principal that: Everything which is not forbidden is allowed. However, this presumes that with such freedom comes the wisdom to discern that everything which is permitted is not necessarily advisable. For example, the fact that we are legally entitled to eat as many deep fried twinkies as we wish, does not necessarily mean that we should.

As we’ve discussed before in this blog, when a composer is commissioned to write a new work the mere act of paying for the work to be composed does not in and of itself convey anything to the commissioner—other than the pleasure and fulfillment of facilitating the act of creation. If the commissioner wants the rights to perform or record the work, or wants a specific artist to be able to perform or record the work, such rights must be specified in the commission agreement. Otherwise, all rights to the commissioned work are exclusively owned and controlled by the composer—including the rights to modify, amend, re-arrange, re-configure, re-orchestrate, and do anything else with the work the composer chooses.

If the commission agreement includes the right for a soloist or ensemble to perform the work for a certain period of time, then the commission agreement must also specify exactly what rights are being conveyed. Anything not specified, belongs to the composer. For example, does the soloist or ensemble have the exclusive right to perform the work as titled or can the composer grant permission for other artists to perform it under a different title? More importantly, how is the word “work” defined? Does the artist’s right to perform the “work” include the right to perform modifications, changes, edits, re-orchestrations, re-configurations, or other variations of the work? Can the artist make such changes herself or only with the composer’s permission? Even if the artist has no rights to such changes or variations, does the artist’s rights of exclusivity prohibit the composer from composing variations and re-orchestrations and permitting other artists and ensembles to perform them? It all depends on what is in the commission agreement.

I’m going to go out on a limb here and assume that the commission agreement in your “hypothetical” lacks any specific definition of “exclusivity.” Given the almost visceral fear in the arts industry of any contractual terms longer than a postage stamp, this is a reasonable assumption. That being the case, then the artist or ensemble only has exclusivity with regard to the work exactly as written and the composer is free to make re-orchestrations, variations, derivations, and arrangements and allow other artists to perform them. However, the fact that the composer is free to do so, does not necessarily mean that it is advisable.

It’s an equally reasonable assumption that the commissioner, rightly or wrongly, presumed that the exclusive right for the artist or ensemble to perform the work inherently included anything that sounded like the work. Admittedly, the commissioner should never have entered into a contract, much less allowed money to change hands, based on a presumption. However, taking advantage of either a misplaced presumption or even a contractual oversight or will not only serve to poison the composer’s reputation for future commissions, but add a significant debt to the composer’s karma bank. In short, my contractual analysis notwithstanding, I would strongly urge the composer to discuss his opportunity to expand the work with the artist and the commissioner before he or she starts heading for the twinkie stand.

________________________________________________________________

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

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