{"id":76416,"date":"2024-06-24T22:24:25","date_gmt":"2024-06-25T02:24:25","guid":{"rendered":"http:\/\/www.musicalamerica.com\/mablogs\/?p=76416"},"modified":"2024-06-24T22:24:25","modified_gmt":"2024-06-25T02:24:25","slug":"a-national-ban-on-performance-exclusivity-clauses-posting-recordings-on-websites-artist-visa-news-nausea-updates-your-contract-playlist","status":"publish","type":"post","link":"http:\/\/www.musicalamerica.com\/mablogs\/?p=76416","title":{"rendered":"\u2022 A National Ban on Performance Exclusivity Clauses\u00a0\u00a0 \u2022 Posting Recordings on Websites \u2022 Artist Visa News, Nausea & Updates\u00a0 \u2022 Your Contract Playlist\u00a0 \u00a0\u00a0"},"content":{"rendered":"

LAW & DISORDER<\/strong><\/span><\/p>\n

Performing Arts Division<\/strong><\/span><\/p>\n

June 25, 2024 <\/strong><\/span>\u00a0<\/strong><\/p>\n

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INSIDE THIS ISSUE:<\/span><\/strong><\/span><\/h2>\n

\u2022 A National Ban on Performance Exclusivity Clauses\u00a0\u00a0<\/span><\/strong><\/span><\/h2>\n

\u2022 Posting Recordings on Websites<\/span><\/strong><\/span><\/h2>\n

\u2022 Artist Visa News, Nausea & Updates\u00a0<\/span><\/strong><\/span><\/h2>\n

\u2022 Your Contract Playlist\u00a0 \u00a0\u00a0<\/span><\/strong><\/span><\/h2>\n

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Legal Issue of the Month:<\/span><\/strong><\/span><\/p>\n

Will a New National Ban on Non-Compete Agreements\u00a0Also Apply to Performance Exclusivity Clauses?\u00a0<\/span><\/p>\n

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You may recall (or not, that\u2019s ok, too) that in our last newsletter we discussed that on April 23, 2024, the Federal Trade Commission (FTC) issued a nation-wide ruling banning non-compete clauses in all employment contracts, regardless whether an individual is hired as an actual \u201cemployee\u201d or as an independent contractor, paid or unpaid, an intern, or a sub-contractor hired to provide service to another party\u2019s client or customer.\u00a0You can read the announcement HERE<\/a>.<\/span><\/p>\n

Further review and analysis have shown that this new ruling, should it go into effect, will also prohibit venues and presenters from including any language in their engagement agreements restricting or prohibiting where an artist can perform before or after an artist\u2019s performance. In other words, should the Grunion Run Performing Arts Center engage the Willy Tugger Jazz Band, they could not prohibit the band from performing two days later at the Annual Grunion Run Mayonnaise Festival where admission is free. Of course, regardless of the future contractual enforceability of a performance exclusivity clause, any artist who actually did this would be hammering a nail deep into the coffin of their touring career.\u00a0<\/span><\/p>\n

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

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Dear Law and Disorder:<\/strong> <\/span><\/p>\n

Actual questions we get asked\u00a0<\/span>and the answers people actually don\u2019t want<\/span><\/p>\n

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\u201cWith thanks, your friendly, neighbourhood car thief\u201d<\/span><\/strong><\/p>\n

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Dear Law & Disorder:<\/span><\/p>\n

I want to post a video on my website that I found on the internet that would be perfect for my new project. I will give full credit to the musician, including the musician\u2019s original link, would this be legal? And can you please specify on what full credit means.<\/em><\/span><\/p>\n

A \u201ccopyright\u201d is literally the right to make copies. A copyright \u201cinfringement\u201d is when you make a copy of something without the owner\u2019s permission. Almost everything you can find on the internet (photos, images, videos, text, etc.) is someone else\u2019s property. Part of the challenge of understanding digital rights is that the ease with which we can download and copy materials on the internet tends to make us forget that copying any materials without permission is still copyright infringement. Without question, many people post pictures, videos, and other materials and are more than happy to have others repost and share them; but that decision is entirely up to the person who owns the materials. In other words, just because a car is parked on the street, doesn\u2019t mean it’s free for the taking. As for giving \u201cfull credit,\u201d that\u2019s like stealing a car, but leaving a thank you note on the owner\u2019s door. It doesn\u2019t make it any less a crime.<\/span><\/p>\n

If you want to get actual permission to post a video, photograph, or any other copyrighted material on your website, then you need to get permission (aka \u201ca license\u201d) from the owner\u2014which may or may not be the artist. The better option would be for you to post a link to the video rather than post the video itself. In other words, you would be inviting your readers to go to YouTube or the artist\u2019s own website to view the video. This way, the owner can control whether or not they want the video to be shared.<\/span><\/p>\n

And now, the part you\u2019ve all been waiting for\u2026\u2026<\/span><\/p>\n

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Artist Visa News, Nausea <\/span><\/strong><\/h2>\n

& Updates<\/span><\/strong><\/h2>\n
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Most of you know by now that between December 2023 and April 2024, USCIS implemented a number of new filing fees and policies purportedly designed to \u201cmaintain adequate service.\u201d Please Note: I did not make that part up. This is direct quote<\/strong> from the preamble to the Final Rule issued by USCIS on January 31, 2024 in which it sets out the goals of its new rules and policies: Not to \u201cimprove service\u201d or even \u201cincrease processing times,\u201d but to aspire to the lofty and inspired goal of \u201cmaintain adequate service.\u201d You can read it for yourself HERE. <\/a><\/span>That’s only slightly less disingenuous than a mobile service touting a 6G upgrade of two tin cans and piece of string.<\/p>\n

USCIS, far from its delusions of adequacy, instead has taken an already broken system, smashed it into more pieces, glued it back together with spit and crushed graham crackers, and tossed it into a soggy carboard box of berserk cane toads. After two months in the toad box, here\u2019s where we are:<\/span><\/p>\n

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1. Standard Processing Times Are Getting Slower\u00a0<\/span><\/strong><\/p>\n

Processing times are getting longer, slower, and more intense, which is good news only for those of you who fantasize about USCIS visa examiners. Though we have seen a few instances of standard processed petitions taking 4 months or longer, most seem to be taking 2 \u2013 4 months from the date of filing. Whilst the Vermont Service Center appears to be processing more quickly than the California Service, as USCIS is no longer assigning petitions to service centers based on jurisdiction, there is no way to know where your petition will wind up or exactly how long it will take to be processed.<\/p>\n

Premium Processing appears to be taking 7 – 15 business days, with, again, Vermont processing more quickly than California.<\/p>\n

2. USCIS Is Losing P Petitions<\/span><\/strong><\/p>\n

For those of you unfortunately forced to file multiple P petition to cover large groups, such as four P-1 Petitions to cover an orchestra of 80 musicians, USCIS is splitting them up and sending them to different service centers who adjudicate them at different times. Even when a single P-1 Petition is filed concurrently with a single P-1S Petition or an O-1 Petition is filed with an O-2 Petition, USCIS is splitting them up and sending them to different examiners at different service centers. In the interest of further proving that they aren\u2019t even competent enough to trust with scissors, USCIS is also losing a few along the way. In one particular case, three P-1 Petitions for a large group were filed concurrently with premium processing. USCIS approved 2 and lost 1. Eventually, they found it 30 days after it had been filed, emailed the receipt notice with a thoughtful note saying, \u201cthanks for your patience,\u201d and approved it 2 days later. (Yes, USCIS has to refund the premium processing fee for that one.) So, allow even more time when filing petitions for large groups.<\/p>\n

TIP:<\/strong> If you do not receive an I-979 Receipt Notice for a filed petition, then go to your bank and see if USCIS cashed the filing fee check. If so, on the back of the cancelled check will be the receipt number for the petition. You can then use this to deride them when they try to claim it was never filed.\u00a0<\/span><\/p>\n

3. USCIS Is Improperly Rejecting Petitions<\/span><\/strong><\/p>\n

There have been numerous instances reported of USCIS rejecting petitions for incorrect filing fees even where the filing fees were correct. This appears to be due to the fact the separating the total filing fee of a petition into multiple different fees based on the business status of the petitioner has not worked as seamlessly as they had hoped. USCIS reports that this is a \u201ctraining issue,\u201d which presumably means this will improve with rolled newspaper and better treats.<\/p>\n

TIP:<\/strong> If you are a non-profit of an employer of 1 \u2013 25 employees, then be sure to address this in your cover letter and explain why you qualify for a reduced fee. Also remember to provide the appropriate documentation of your status.<\/span><\/p>\n

REMINDER:<\/strong> To qualify as a \u201csmall employer\u201d you must have at least 1 full-time employee on a payroll and from whose pay checks taxes are withheld. Otherwise, you are a \u201csmall business\u201d or \u201cself-employed\u201d and must pay the maximum filing fees.<\/span><\/p>\n

4. USCIS Is Issuing Barmier RFEs<\/span><\/p>\n

USCIS has always been renowned for issuing tragically comical Requests for Evidence (RFEs) when it comes to displays of their obliviousness of anything that occurs on a stage\u2014which, of course, always raises the question of whose idea it was to give them the final say on the casting and booking decisions of major opera companies, theatres, and presenters in the first place. Nonetheless, unattended USCIS Examiners have recently been burrowing into new depths of obtusity in their soiled sand box and issuing more preposterous RFEs. In particular, we have seen a disturbing increase in RFEs for P-1S (Essential Support Staff) Petitions in which they are asking for individual employment contracts for each person with specific employment terms and conditions, more information on why the services provided are necessary for a performance, and why the group can\u2019t just hire US workers to do the same thing. To pluck just a few pearls:<\/p>\n