Archive for 2020

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

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

WE ALL NEED TO STREAM SOMETIME

Monday, 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

Monday, 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

Thursday, 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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USCIS JUST THREW ARTISTS A CRUMB!

Tuesday, 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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A CORONAVIRUS VISA ROUNDUP FOR NON-US ARTISTS

Tuesday, 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

A Cri du Coeur from French Artists

Monday, March 16th, 2020

By Frank Cadenhead. March 16, 2020.

This is a major declaration of French opera’s performing artists. This “Cri du Coeur” makes plain that the abrupt cancellation of all opera everywhere in France at Midnight on March 14 leaves both artists and staff without any idea of when this will end and if there will be any reimbursements for lost pay.

“CLOSING OF PERFORMANCES: THE ‘CRI DU COEUR’ OF LYRICAL ARTISTS!

In the difficult medical crisis that the country is currently experiencing, the lyric artists, today, gather together to draw the attention of the public authorities to the seriousness of the professional and personal situations that this crisis is causing.

We are well aware that the urgency today is to take care of the most fragile people in the face of this scourge whose spread must be stopped, but it is important to think about its social consequences.

All of the classical music institutions, opera houses and concert halls, have decided to cancel all of their performances.

If we speak collectively today, it is because the current health crisis dramatically accentuates a state of precariousness and isolation in which we experience already. More and more theaters are now announcing their complete closure and we are witnessing an unprecedented accumulation of unilateral breaches of contracts throughout our sector: especially among soloists, choir artists, instrumentalists, conductors, directors, dancers , technicians, extras, choir leaders and artist agents that we would all like to associate with our declaration. Our job is a passion but that should not make us forget the reality: the clear breach of one or more contracts for the coming months means the total cessation of our professional activity as well as an immense loss of artistic opportunities, especially for the youngest among us.

In French labor law, performing artists are employed in “fixed-term contracts”. These contracts, negotiated directly with the organizing companies, are the result of long years of work and waiting. In addition, they give entitlement to the unemployment compensation plan known as “the intermittence of the spectacle”. These contracts are essential for us in more ways than one. First, they are our main and often the only source of income. On the other hand, it is a career issue: a contract can have decisive consequences in the development of an artistic career. Finally, they are the central parts of the calculation of our hours that allow us to benefit from the essential safety net that constitutes intermittency.

The breach of these contracts is normally framed by labor law but, the current situation being unprecedented, we hear a plurality of responses from our employers. A number of them are doing their best not to penalize anyone, sometimes at the risk of endangering their cash, however some singers seem to have to give up their entire salary.

Are we in a case of force majeure? If so, does the Covid-19 epidemic characterize a “force majeure incident” within the meaning of article 1234-4 paragraph 2 of the labor code? Where applicable, this public policy provision prohibits a unilateral termination of the CDD on the initiative of the employer without compensation for the benefit of the employee, notwithstanding any contractual clause to the contrary.

Are we, as employees (even on fixed-term contracts) eligible for the partial unemployment procedure announced? If not, is it fair that we are excluded from the state’s promise not to let any employee lose their job? How will the hours lost in calculating our status be counted? What compensation for loss of opportunity is possible?

We need clear answers to the gravity of a crisis which threatens the future of a large number of artists and greatly accentuates the precariousness in which some of them already find themselves. We appeal to our supervisory Ministry, as well as to the Ministry of the Economy and to the Prime Minister. Art and culture are essential to our society and to the influence of our country in the world. We are the proud representatives in France and elsewhere. As such, we deserve not to be treated as mere adjustment variables subject to the arbitrary decisions of certain employers.

We ask that no decision relating to the cancellation of contracts and the payment of wages be taken until the legal framework has been defined. We are ready to make efforts in this common test but, in no case, to sacrifice our future as artists.

We all hope to quickly return to the stage and our audience, our greatest support. Once this ordeal has been overcome, it will be essential, in the country of cultural exception, for a substantive debate to begin on the statutory protection of our performing trades.”

Roberto Alagna, Kévin Amiel, Guillaume Andrieux, Jean-Luc Ballestra, Stanislas de Barbeyrac, Cassandre Berthon, Christophe Berry, Julien Behr, Benjamin Bernheim, Thomas Bettinger, Yann Beuron, Jean-Vincent Blot, Jean-François Borras, Jean-Sebastien Bou, Ambroisine Bré, Raphaël Brémard, Chloé Briot, Hélène Carpentier, Albane Carrère, Nicolas Cavallier, Adèle Charvet, Nicolas Courjal, Marianne Croux, Marianne Crebassa, José van Dam, Thibault de Damas, Stéphane Degout, Camille Delaforge, Mireille Delunsch, Antoinette Dennefeld, Léa Desandre, Karine Deshayes, Charlotte Despaux, Sabine Devieilhe, Jodie Devos, Olivia Doray, Pierre Doyen, Julien Dran, Cyrille Dubois, Yoann Dubruque, Alexandre Duhamel, Philippe Estèphe, Mathilde Etienne, Aude Extrémo, Loïc Felix, Jean-Paul Fouchécourt, Julie Fuchs Christophe Gay, Paul Gay, Véronique Gens, Anne-Catherne Gillet, Emiliano Gonzales Toro, Olivier Grand, Sébastien Guèze, Delphine Haidan, André Heijboer, Eric Huchet, Enguerrand de Hys, Philippe Jarrousky, Caroline Jesteadt, Marie Karall, Marc Labonnette, Florian Laconi, Marc Laho, Jean-Christophe Lanièce, Marion Lebègue, Matthieu Lécroart, Aimery Lefèvre, Marie Lenormand, Alix Le Saux, Lionel Lhote, François Lis, Philippe-Nicolas Martin, Clémentine Margaine, Héloïse Mas, Rémy Mathieu, Elodie Méchain, Régis Mengus, Anaïk Morel, Laurent Naouri, Stéphanie d’Oustrac, Eléonore Pancrazi, Julie Pasturaud, Patricia Petibon, Gabrielle Philiponnet, Anthéa Pichanik, François Piolino, Camille Poul, Marie Perbost, Julie Robard-Gendre, François Rougier,  Pauline Sabatier, Francesco Salvadori, Chantal Santon-Jeffery, Vannina Santoni, Anas Séguin, Jean Fernand Setti, Philippe Talbot, Jean Teitgen, Marie-Ange Todorovitch, Catherine Trottmann, Béatrice Uria Monzon, Florie Valiquette, Mathias Vidal, Guilhelm Worms.

Posted in An American in Paris | Comments Closed

What We Know So Far About Trump’s Coronavirus Travel Ban

Friday, March 13th, 2020

By Brian Taylor Goldstein

In short, not much. As you can imagine, this was announced without any details as to how, exactly, this was going to work in terms of screening, implementation, flight schedules, etc. But here what we know so far…

  • Anyone who has been in one of the 26 European countries in the Schengen zone within 14 days prior to Friday, March 13, 2020, they will not be allowed to board the plane and/or enter the U.S. for the next 30 days.
  • The 26 European countries in the Schengen zone — 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 and Switzerland.
  • The ban does NOT apply to the U.K. or Ireland, as well as Croatia, Cyprus, Ireland, Turkey and Ukraine. (No one knows why, though it just so happens that both the U.K. and Ireland both host Trump golf resorts…hmmm.) However, while the citizens and residents of these countries are exempted from the travel ban, if they have visited any of the European countries on Trump’s list over the past 14 days, then they are subject to the FULL 30 day ban.
  • The ban does NOT apply to permanent residents (green card holders), U.S. citizens, and the spouses, parents or siblings of American citizens or permanent residents, as well as members of the U.S. military and their spouses and children. However, they will be restricted to flying to specific U.S. airports for screening.

In addition, we have just learned today that:

  • The U.S. embassy in Oslo and Lisbon has temporarily ceased all visa operations until further notice due to the outbreak of Novel Coronavirus Disease COVID-19. It’s highly likely that more embassies and consulates will follow suit.
  • Denmark just announced it was closing its borders.

We will keep you informed as soon as we know of any changes, on our social media pages (so we don’t bombard you with emails). If you would like to stay updated follow our social media links at the bottom of the page.

Lastly, Trump has asked that everyone remember that he warned us this would happen if we kept letting foreigners into the U.S. and now we should be ashamed of what we have done to his perfect economy.

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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

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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 Acts of God, Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Uncategorized, Visas | Comments Closed

Please Consider Donating Cancelled Tickets Rather Than Seek Refunds

Friday, March 13th, 2020

I, like most of you, was ingrained with the paradigm that the show must go on no matter what—to the extent that I once performed a whole show the day after I had all four wisdom teeth extracted. However, these are extraordinary times.

The live, performing arts will not suffer more than any other economic blows that we all are going to suffer in every sector and industry. Nonetheless, I am putting out a personal request to all of you, as well as your patrons, friends, families, and audiences, to please consider donating any cancelled tickets rather than seek refunds.

For some, it may be easier to write of the commercial end of our industry. However, remember, that ALL artists, singers, musicians, actors, dancers, stage and tech crew, and everyone throughout the arts, for-profit and non-profit alike, from jazz to classical, from hip hop to folk, from Broadway and Carnegie Hall to the smallest regional arts centers, all rely on ticket sales to get paid and to survive.

For Broadway, the closures come at the peak of the Broadway season. While most producers I know will walk away from their investments to keep the performers and crew getting paychecks for as long as possible, many shows will not be able to survive and will close. Others will have delayed or closed openings. On the other end of cancellations, from the smallest to the largest, are artists losing their fees, along with their agents and managers (and entertainment lawyers. Wait! What?) Without a jazz club, where does the trio perform? Non-profits who have to cancel fundraising events face not be able to make their budgets. Small regional organizations, community theaters, and local arts groups may suffer the worst.

Some of the large ticketing organizations will automatically issue refunds. For those that do not, consider that the money has been spent anyway and allow it to be a donation.

Stay safe. Stay disinfected. And remember that, while alcohol is not a disinfectant, when taken orally it can be a cure-all.

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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

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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 Acts of God, Arts Management, Law and Disorder: Performing Arts Division, Venues | Comments Closed

The Response of the Performing Arts to the World Premiere of the Coronavirus

Wednesday, March 4th, 2020

By Brian Taylor Goldstein

Let’s all step back and take a breath for moment.

As you can imagine, the coronavirus has overrun (dare I say “infected?”) our office with an ever growing stream of cancellations based on force majeur and concerns from venues, presenters, agents, and artists from around the world. As the situation has continued to develop (dare I say “spread?”) so rapidly, we have so far focused solely on dealing with issues on a case-by-case basis rather than take on the task of posting any advice or updates which might be outdated in 2 days.

However, as cancellations are becoming more frequent and more likely, we have increasingly begun to receive questions from all sides about what does and does not constitute a legitimate force majeure cancellation and who is responsible for lost income and covering expenses. While not at all unreasonable concerns, we get the sense that people are “preparing for battle” rather than accepting the reality of a shared crisis in which we all find ourselves. For instance, we have been told:

  • That no one can call off a concert unless the U.S. government “officially” declares a pandemic. (That’s unlikely given the regime’s current position that this can all be resolved through the power of prayer alone.)
  • That venues are “legally” required to educate their audiences not to be led by fear and racism. (Since when? I missed this in law school.)
  • That artists should not be allowed to cancel unless they come from the specific part of a country where there have been cases. (So it doesn’t matter that an audience is not going to come to see a South Korean artist regardless of what part of Korea they have just arrived from?)
  • “They cancelled a month ago, before there were any outbreaks, so they shouldn’t be able to get the benefit of that now!” (So, the fact that they wound up making the right decision is irrelevant?)
  • “The coronavirus cases in their state is not anywhere near where their venue is located!” (Do you live there? Are you planning on going to the concert yourself?)
  • “Airlines are still flying to the U.S. from that country, and the artist is willing to be quarantined, so the venue cannot cancel!” (So, just because someone has found a way to break into my house, I have to let them stay so long as they promise not to cough in my face?)

And I JUST heard an idea being tossed about of adding a Force Majeure “penalty fee” clause to contracts. (Why stop there? Why not a public shunning?)

Without a doubt, and not in the least to dismiss the gravity of potential, if not, devastating financial losses throughout the performing arts, these arguments miss the point. Everyone is facing difficult decisions and financial loss—and not just in the performing arts.

Whether you are anticipating a cancellation or it has already happened, you should take the following immediate steps:

STEP 1: Review Your Contract

Most contracts will actually spell out the situations that allow for a Force Majeure cancellation, including what the parties are and are not responsible for.

STEP 2: Prepare Martini (gin, slightly dirty, extra olives)

STEP 3: Discard Your Contract and Accept Reality

The legal concept of Force Majeure or Act of God anticipates situations where one or both of the parties to a contract cannot meet their obligations due to something outside of their control and which could not have reasonably been anticipated. A fire in the venue. An artist gets sick. A snowstorm closes an airport. Etc. However, there does not have to be a physical impediment to the performance for a performance contract to be permissibly cancelled due to a force majeure. Does a theater have to actually burn all the way down? Can the artist insist that they are still willing to perform on what’s left of the smoldering stage? What if the artist is sick, but not dead? Can the venue insist that the artist be dragged on stage with a portable oxygen tank?

At present, in the case of a new virus that has spread internationally and was previously unknown, while an official government declaration or ban on travel would certainly make things simpler, that is by no means a requirement. In just two months, we have long been overtaken by circumstances justifying both venues and artists to declare a force majeure for any number of reasons, including:

  • A show involving artists coming from or who have recently been to an infected area.
  • Travel restrictions or quarantine requirements imposed by a state or local government in the the U.S. and or any country in the world that might impact the ability of an artist or group to leave their own country and/or enter or leave the U.S.
  • An artist from one part of the U.S. traveling to another part of the U.S. where cases have been reported.
  • Venues deciding to close out of abundance of caution.
  • An artist wishing to cancel to avoid exposure or to avoid being trapped inside or outside the U.S. should official travel bans start to be put in place.

On their face, these are all a reasonable. Conversely, it may, in fact, be unreasonable for someone to insist on a performance taking place where there was even a “reasonable” risk of putting an artist or audience in harm’s way. If God (and/or Goddess and/or the universal cosmic energy) forbid, someone were to get sick, this could raise significant issues of liability for negligence.

The reality is that we are all facing the same situation (and our own office is no exception) which, without a doubt will impact some more than others. There are already several universities who have cancelled classes and performances out of an abundance of caution. Some venues in the U.S. have informed artists from China, Iran, South Korea, Japan, Italy, and Hong Kong (and that list will most certainly grow) that they will not be allowed to enter the venue for 14 days after arriving in the U.S. Others around the world have either imposed similar restrictions or closed completely, including major opera houses and concert halls. Are these decisions going to impact travel costs, tour dates, lost engagement fees, lost commissions, and even risk an artist exceeding a visa validity period? Of course.

However, even if you believe a cancellation is unreasonable or even if it goes so far as to violate the terms of the contract, what then? Raise contractual and legal arguments? Send snippy and condescending emails? Bring in a lawyer? Sue? While there are almost always legal arguments and threats one could through at any situation, doing so with regard to anyone’s response to an unknown and spreading virus which is causing world-wide fear and confusion is not merely delusional, but will certainly trigger ethical, professional, and PR concerns that will haunt you far beyond any lost income.

While not all of these will apply to everyone in every situation, here are some practical suggestions for dealing with an actual or threatened cancellation due to the coronavirus:

  • Anticipate and prepare financially for losses;
  • Explore options for mitigating losses, such as refundable tickets, cancellation policies, and the risks and liabilities of not cancelling sooner rather than later;
  • Listen to the fears and concerns of all parties;
  • Entertain any and all reasonable alternatives to a cancellation, such as checking constantly for updates from the CDC or WHO, as well as reaching out to local health and public safety experts either in the location of the performance or in the location from which an artist will be traveling.
  • Entertain any and all reasonable proposals to share losses, taking into consideration a fair, honest, and truthful assessment of who is in a better position to bear them;
  • Consider the professional and ethical considerations of pressing an argument, making demands, or simply acting like a jerk;
  • If a deposit has not been paid, consider it no longer due. If a deposit has already been paid, apply it towards actual, non-refundable expenses (such as airline tickets, rental fees, etc.) and return the rest; and, of course;
  • Try to re-book the date.

In addition, here are some websites with calm, cool, and well-thought advice, including suggestions of how to prepare and what to consider:

www.artsready.org

www.americanorchestras.org

However rightly or wrongly you may think someone’s decision may be, and how deeply you fear the effects on your own economic health, this is not the moment to judge, argue, or act impulsively. Rather, now is the moment to test the performing arts industry’s so oft-toted (and even more often self-proclaimed) reputation for being able to support one another in surviving a time of crisis and to coalesce as a community in working towards a greater and larger mission. I know you can do it without suing on another!

…And now, to throw some bleach on my keyboard and sage the office!

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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 Acts of God, Law and Disorder: Performing Arts Division, Uncategorized | Comments Closed

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