Law & Disorder: Contract Cancellations Under the Current Regime

 Inside This Issue:

• Are Acts of Trump Now Acts of God?
• Copyright Clusters
• Do Non-US Artists Need To Register as Foreign Spies?
• The US Puts the Crosshairs on ESTA Entries and Students
• Interview Waivers are Discontinued

Dear Readers…

It’s been over 100 years, at least, since the MAGA revolution and the pumpkin potentate continues to sew more horror and chaos than a sexually aroused moose running through a hospital paediatric ward. Trump has proposed eliminating the National Endowment for the Arts and the National Endowment for the Humanities, both of which have begun rescinding grants already awarded; embarked on a campaign to purge the Smithsonian Institution of all exhibits other than those which display American patriotism, leaving only George Washington’s false teeth and Millard Filmore’s toenail clippings; in a puff of orange smoke from the Sistine Chapel, appointed himself the Vicar of Christ; advocated rationing dolls for Christmas; and, after ICE raided Sesame Street, had Big Bird deported for being a member of an Estonian seagull gang. All whilst whistling “Yankee Doodle Dandy” out his ass.

Nonetheless, the work of the performing arts goes on with an even greater sense of urgency purpose. In the meantime, bearing in mind that the speed of stupidity outpaces the ability for parody, we present this month’s roundup of woe.

Legal Issue(s) of the Month: Contracts v. Acts of Trump

In the wake of the Trump administration’s attacks on Diversity, Equity, and Inclusivity (DEI) initiatives by replacing them with DEI 2.0 (Discord, Exclusion, and Injustice), presenters, venues, artists, and cultural institutions throughout the arts industry—not just in the US, but internationally—are increasingly becoming alarmed by fears of funding cuts and the cancellations of tours, concerts, and projects. Whilst most planned tours and performances are going forward through perseverance and determination, given the uncertainly of the times such concerns are not merely idle or speculative.   

Artists who are creating work about feminist, LGBTQ, pro-immigrant, and racial justice issues have already reported delays and cancelations as institutions are now reconsidering their risks and exposure to topics that might draw the administration’s ire or put their existence in jeopardy. U S.  non-profit organizations are especially concerned about threats of having their non-profit status revoked. In a recent article in ARTnet magazine, philanthropy consultant Melissa Cowley Wolf warns “This administration has declared war on the nonprofit sector” and Carin Kuoni, senior director and chief curator at the Vera List Center for Art and Politics at the New School in New York, says “I think this is absolute watershed moment…I don’t think we’ve seen anything like it…We’re looking at a changed landscape that we can’t quite see yet but it is changing how nonprofits exist in this country.” Just last week, a U.S. tour of a dance group which had been planned since 2024 was abruptly cancelled when their funders backed out due to fear of political repercussions. Even private, for-profit institutions are facing pressure to comply with the Trump administration’s ideologies or risk economic forms of indirect retaliation.

Artists, orchestras, ensembles, and groups around the world are also beginning to reconsider whether traveling to the U.S. is worth the risk of spending thousands of dollars to obtain a visa, only to have it denied, or worse, being detained, arrested, and/or deported when they try to enter. You know it’s bad when a Dutch children’s puppet troupe feels the need to ask us whether we think their production of Cluck about a chicken who wants to be a swan is too DEI and will get them arrested! At the same time, many non-US artists who live in the US—particularly students—are cancelling international engagements for fear of leaving and not being allowed back in. Fortunately, few of the instances of people being turned away, denied entry, and deported involve artists. Nonetheless, the fears are real.

In addition to grappling with how best to mobilize the arts to preserving artistic freedom and integrity, the arts community also needs to be thinking proactively with regard to the financial and economic losses that will be suffered from the rapid or unexpected changes sure to come. Amidst the dark days of COVID, I recall with not just a little frustration the performing arts industry becoming embroiled and embittered in arguments and accusations as to whether engagement cancellations due to COVID were regarded as contractual breaches or allowable cancellations under Force Majeure/Act of God clauses.

Cancelling due to a loss of funding, poor ticket sales, or other economic reasons have never been valid Act of God/Force Majeure events. Rather, the whole point of a Force Majeure/Act of God clause is to allow either party to cancel the contract without any consequences due to an event or obstacle which either no one could have foreseen, or which was outside of a party’s control. Otherwise, unless there are contractual terms to the contrary, a cancellation is a breach of the contract. If a venue breaches, then it owes the artist damages (engagement fee, non-refundable expenses, etc.), whereas if the artist breaches, then the artist owes the venues damages (lost ticket sales, non-refundable expenses, etc.). A Force of Majeure/Act of God clause overrides all of that—like Monopoly’s “get out of jail free card.”

Unlike during COVID where there was a clear medical/health threat, this time the virus is a raging infection from the White House. This obviously raises a whole range of novel questions.

What about cancelling due to a sudden onset of fascism? What about cancelling a contract due to a “concern” over being denied a visa or refused entry? Does a non-US artist first need to be actually arrested and deported for it to be considered an unforeseeable event outside of a party’s control? What about a presenter who decides to cancel merely due to a fear of lost funding or out of a pre-emptive abundance of caution? What if funding or financing is pulled for due to a political crisis or a recession? What about where a non-profit is officially threated with a revocation of its non-profit status if it proceeds with DEI programming? We are in very unchartered waters.  

To keep the curtains rising, we need to start having these conversations. We also need to accept the reality (despite many refusing to do so during COVID) that we are all in this together. Most presenters, producers, and venues have no more easy access to cash reserves than most artists and ensembles. No one in the performing arts—for profits, non-profits, artists, groups, manages, agents, ensembles—is necessarily better positioned to handle losses than others. Rather, losses can be shared, plans can be contingent, projects can be postponed or re-imagined, and risks can be accessed and allocated. Even though the answers may come later, we at least need to start having the discussions.  

“Copyright Clusters”

 A little copyright law is always a good way to take a break from doom scrolling and remember the old days.
Here are actual Questions we get asked and the answers people actually don’t want!

Dear Law and Disorder:

If something is posted on YouTube can I put it on my web site? This is the situation. Someone posted a video of one of my groups performing at a music festival. We first found it on Vimeo, but it was private.  The group reached out and asked if we could have the password and the person who posted it said we could have it so long as we didn’t post it to the public. But then we found it on YouTube – and he didn’t make it a private posting there.  So, may I put the link to that on my website, or would that be illegal?

So long as you’re not posting unlicensed or infringed materials on your own server or website, then merely posting a link to someone else’s website, YouTube, Facebook page, etc, is not a problem, even if that website contains unlicensed materials. That’s literally just pointing a finger and telling people “if you want to see some cool stolen stuff, look over there.” The worst that will happen is your link will go dead if the copyright owner orders the posted material to be taken down. The problem is that there may be multiple copyright holds, any one of whom can request it to be taken down—which is the case here.

In your situation: (1) It was illegal for the person to take a video of the group’s performance without the group’s permission, much less post it; (2) nonetheless, the person who took the video owns the video; and (3) no one may have the right to use or post the video if no one obtained a license from the composer(s) of whatever music the group performed. This means that the group owns the rights to their performance, but not to the video. The video is owned by the person who took it. However, unless the group was performing their own music, then the composer owns whatever music group performed on the video and no one can use it. So, it’s more or less a bunch of seagulls fighting over a week-old fish fillet.   

Artist Visa News & Nausea

As Kristy Noem and the Real Housewives of Guantanamo Bay continue to find novel ways to deport anyone they want, we present the latest round-up of US artist visa news.  

Before reading on, it is important to emphasize that  for the most part, the vast majority of artists traveling to the US are entering without incident—even some of our artists who we feared would be singled out.

The reports of people (artists as well as normal people) being arrested and deported, though horrific, remain relatively few. As always, our purpose is not to stoke panic, as there’s more than enough of that already, but, rather, to share whatever we can to provide the most accurate information to facilitate informed and thoughtful decisions and strategies to make the shows go on as planned. Otherwise, if we fold too easily under the very real efforts to thwart the voices of international arts and artists from reaching the US, the darkness wins.

1. Artists And Anyone Else Who Enters the US With a US Visa or Through ESTA DO NOT Have To Register as an Alien  

Since 1940, a US law called the Alien Registration Act has required non-US citizens to register with the US government if they stay in the US beyond a certain period of time. However, until the clap of doom three months ago, it has never been regularly enforced.  

As of April 11, 2025, pursuant to Trump’s Executive Order un-craftily entitled “Protecting the American People Against Invasion,” Department of Homeland Security (DHS) implemented mandatory registration requiring all non-US citizens over the age of 14 who are present in the US for 30 days or longer to register with the US Government or risk arrest and deportation. The registration process involves providing extensive personal information and background data to DHS and then getting fingerprinted at a USCIS office. DHS will then issue a registration card which must be carried at all times at risk of arrest or deportation if one is found without it.   

As intended, the published rules on the USCIS registration website make vague references to exceptions, but one has to hunt to find them, causing much confusion and anxiety as to whether this applies to non-US artists and arts professionals who regularly work and/or live in the US. DO NOT PANIC! The following do not have to register regardless of how long they stay in the US:

>>>Anyone who was issued a visa stamp from a US consulate in any category. For artists, this includes F, J, O, and P.

>>>Anyone who was issued an I-94 (a US entry/departure record) by US Customs and Border Patrol (USCBP). Do not worry! Anyone and everyone who has legally entered the US, with a visa or through the Electronic System for Travel Authorization (ESTA) process, or has ever filed a visa petition with USCIS and been approved for an Extension of Stay, has been issued an I-94. An I-94 is automatically generated whenever someone enters or leaves the US or is approved by USCIS to stay in the US. You can look up your current and prior I-94 on the USCBP website HERE, as well as print out a copy for your records.  For those who have filed a visa petition with USCIS and been approved for an Extension of Stay, your current I-94 will be at the bottom of your Extension of Stay Approval Notice.

>>>Permanent Residents/Green Card holders   

The American Immigration Lawyers Association (AILA) released a memo explaining and further clarifying the exceptions. You can download and read that HERE, on which we have marked the information most relevant to the arts.

2. ESTA: A Trap For the Unwary?  

US Customs and Border Patrol (CBP) are becoming increasingly aggressive in seeking out ESTA violations, particularly with regard to people they suspect are using Electronic System for Travel Authorization (ESTA) to enter the US and work illegally. As an oft-repeated (and just as oft ignored) reminder: based on the insane and non-intuitive way the US defines “work” with regards to artists, performing or providing any services of any kind under any circumstances in the US—even if no one is paid, no tickets are sold, the artists are students, they are coming “just to observe or supervise,” etc. requires a work visa.

Many non-US artists, artist managers, designers, directors, and other arts professionals often legitimately and legally enter the US through ESTA to attend meetings, conferences. competitions, and concerts. Artists can also enter through ESTA for auditions or to compete in competitions This is all, and for now remains, perfectly legal. However, USCBP appears to be increasingly pulling aside and harassing people whom they believe have been abusing the ESTA process. In particular, if they believe that someone has entered and re-entered the US too often though ESTA, they will suspect they are working. Whilst there have been some highly publicised reports of business travellers and even tourists being arrested and deported, we are aware of no such reports involving performing artists or anyone entering with an artist visa and without any prior immigration violations. However, we have had several reports of playwrights, artist managers, and others entering through ESTA being detained and harassed. Fortunately, they were each eventually allowed to enter, but only after being told either to get a visa next time or not to use ESTA so often. Accordingly, if you plan to enter the US through ESTA, we cannot urge strongly enough:

>>>Have a return ticket booked. 

>>>If you are attending meetings, conferences, auditions, or competitions in the US, travel with an invitation letter confirming what you will and will not be doing…and a return ticket.  

>>>If you plan to enter the US regularly or more than a few times a year through ESTA, don’t—or get a visa.

>>>If you enter the US through ESTA, don’t re-enter again through ESTA for at least a few months. 

>>>Never enter through ESTA if you have a visa petition pending or, for whatever reason, have been approved for a visa, but don’t want to go through the hassle of getting a visa stamp. 

>>>Never enter through ESTA if you are doing anything that could be considered “work” as the US stupidly defines it.

>>>Never listen to anyone who tells you that you can enter the US through ESTA to perform or provide services so long as you are not being paid!

>>>Where there is any doubt, get a visa!

3. Students In the Cross Hairs  

In addition to harassing deviants entering through ESTA, even those benignly and legally doing so, USCBP also appears to be singling out students and those who may have previously studied in the US for “additional vetting.” They not only consider education to be antithetical to American values, but associate students with protests, dissidence, and general rabble-rousing. As such, in addition to travelling with all of their immigration documents (F-1 visa, currently, endorsed I-120, EAD cards, etc.), current foreign students studying in the US should be prepared to confirm they do not intend ever to seek a green card or live permanently in the US and that their intention to is leave as soon as they graduate. Those who may have previously studied in the US should be prepared to confirm they never violated their status or performed illegally. The American Immigration Lawyers Association (AILA) has released another memo, this one providing guidance to non-US students travelling to the US. You can read that HERE. 

4. Interview Waivers Are No More!

We mentioned this in a prior update. However, as there is so much to take in right now many folks missed the news that interview waivers are no longer automatically granted or even available at most US consulates—even if a person has previously been given an interview waiver.  Henceforth, to be eligible for an interview waiver you must (i) submit your visa stamp application to the US Consulate in the country where you are a citizen and (ii) you must have been issued a visa in the same category within the last 12 months. In other words, if you held an O or P visa more than a year ago, you are out of luck. Also, “eligible” does not mean “entitled” or “guaranteed.” Some consulates are refusing to issue any interview waivers at all and making everyone schedule an appointment for a personal interview—and then not having appointments available for 6 months! As each consulate makes up its own rules, the only way to know anything is to check the website of the consulate where you intend to apply for a visa stamp. So, prepare your divas accordingly.

5. Travel Bans and Restrictions

Despite his un-holiness having vowed to reinstate travel ban on certain countries “from day one,” he has not done so. The State Department confirms that it is continuing to work on a report that would serve as the basis for anticipated visa bands and restrictions, but they have yet to do so or release any official list. For now, they have only released a preliminary “wish list” of banned countries. These include: Afghanistan, Bhutan, Cuba, Iran, Libya, North Korea, Somalia, Sudan, Syria, Venezuela, Yemen, Belarus, Eritrea, Haiti, Laos, Myanmar, Pakistan, Russia, Sierra Leone, South Sudan, Cambodia, and Turkmenistan.  And, though even with a GPS and 100 years he could still not find them on a map, Trump has also included the Caribbean nations of Antigua and Barbuda, Dominica, St. Kitts and Nevis, and St. Lucia. Even when an official list is announced, Trump can add and delete countries at-will—most likely on a whim sitting on the toilet in the middle of the night eating a bucket of friend chicken and posting in screaming all-caps on social media. So, as countries that end up on the list can just as easily be removed and then re-added, or new countries added and removed as well. We will, of course, continue to stay on top of this.  

6. Standard and Premium Processing Times

Whilst Standard Processing continues to be running around 2 months at the Vermont Service Center, the California Service Center is now taking closer to 6 months or longer. Premium Processing continues to buy you processing within 15 business days. However, there have been several reported cases, particularly from the California Service Center, of USCIS taking longer than the 15 business days for some premium processed petitions. Our office filed three petitions through premium processing to cover an orchestral tour. Two were approved (though not at the same time) and one took more than 60 days. Officially, USCIS is obligated to issue a refund in those instances, but not within any particular time frame. In addition, with the Department of Homeland Security having closed most customer service operations, there are few avenues left to pursue and address USCIS mistakes, such as improper rejections over filing fees, beneficiary names being misspelled or omitted entirely on approval notices, or petition delays.

 In case you missed anything, you can always find all of past updates and news on our website: www.ggartslaw.com

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