Wednesday, December 1, 2010

Effective Immediately: New I-129 Forms!!!!

That’s right. You heard correctly, on November 23, 2010, with very little fanfare or advanced warning, USCIS implemented a revised I-129 form and O/P Supplement form. According to the USCIS website, the new forms must be used effective immediately. However, USCIS has “unofficially” officially confirmed with the American Immigration Lawyers Association that USCIS will continue to accept the old versions of the I-129 and O/P Supplement until December 22, 2010.

Any petitions that are POSTMARKED December 22 or later MUST use the new forms. After December 22, USCIS will reject any petitions using the old forms.

The new forms themselves impose a new layout, new questions, and additional required signatures. FTM Arts Law is currently in discussions with USCIS seeking clarification and guidance on various inconsistencies and challenges imposed by certain questions, as well as format issues. While we anticipate that further pointers will be forth-coming, here are some of the exciting highlights in the new forms you should be aware of:

I-129 Form

  • Part 2; Question 3: You must now provide the artist’s most recent visa petition receipt number even if you are not requesting an extension of stay or change of status or the artist is not present in US or if the Artist’s prior visa was in a different classification than the one you are now applying for.
  • Part 3; Question 1(f): You must now indicate the gender of the artist. If filing for a group, we are assuming that this is left blank.
  • Part 3; Question 2(e): You must now provide the artist’s Student & Exchange Visitor Information System (SEVIS) number, if applicable.
  • Part 3; Question 2(f): You must now provide the artist’s Employment Authorization Number (EAD), if applicable.
  • Part 4; Questions 11(a) and 11(b): You are now being asked to provide information as to whether or not the artist has ever been in the US in J-1/J-2 (exchange visa) classification.
  • Part 4: With regard to all of the questions in Part 4, if you answer “yes” to any question (prior denials, accompanying petitions, prior green card petitions, valid passports, etc), you must now put your explanation on an official explanation page which is now part of the new I-129 form. This explanation page must also be signed by petitioner. Not using the official explanation page could result in the entire petition being rejected by the mailroom and/or may give UCIS examiners another reason to issue a request for evidence.
  • Part 5; Question 4: You must now indicate whether or not an itinerary is included with the petition. (NOTE: As we don’t yet know how USCIS will respond in situations where an itinerary is not required in the first place, we are advising either to check “No or leave blank and write “N/A” in such circumstances.)
  • Part 5; Question 5: You must now indicate whether the artist will work-off site. (NOTE: we are advising petitioners filing on behalf of performing artists to leave this blank and hand write “N/A” in such circumstances.)
  • Part 5; Question 6: You are now being asked to indicate whether or not your artist will work exclusively in the CNMI (Commonwealth of Northern Marina Islands). Either check “No” or leave blank and write “N/A."
  • Part 6: This is an entire new section which does not apply to those filing for artists and performance groups.

O/P Supplement

  • Section 1; Question 7: You must now indicate whether or not a labor organization exists for the petitioned activity. If the answer is “No”, then you must provide an explanation on the new form explanation page. (NOTE: If the answer is “Yes”, but you choose to submit a consultation from a peer group or service organizations, this could result in a rejection or an RFE.)
  • Section 1; Question 8: You must now indicate whether or not a union consultation or written advisory option is attached to the petition. For petitions that include positions that are and are not covered by unions (i.e. P-1S with administrative worker and technical workers covered by IATSE), answer “No” to Question 7 and explain positions not covered by unions AND answer “Yes” to question 8 for positions covered by unions.
  • Section 2: The petitioner must now sign a statement confirming liability for returned transportation costs if the artist is dismissed by the employer before the end of classification period. (NOTE: This is likely to have little practical implication in most itinerary-based petitions for performing artists, but will cause petitioner confusion and alarm, nonetheless!)
Merry Christmas from USCIS! Check back for further developments and clarifications as they occur.

Wednesday, November 3, 2010

Arts and the Law

A very interesting blog post today by Anne Midgette about a lawsuit recently filed against Young Concert Artists alleging age discrimination in their competition guidelines. See below for the link and text.

Without getting into the merits (or lack thereof) of this particular situation, it does shine a light into the crevices of a larger issue: the bipolar relationship between law and art. Everyone wants to avoid contracts, statutes, and legal issues in favor of simplicity, trust, relationships and "artistic considerations", until someone's engagement gets canceled or they don't get whatever it is they believe they deserved or believe they bargained for or are entitled to, and then all bets are off and they run to the courts for redress. The legal system is a black hole from which no one emerges unscathed, regardless of the merits of their claim. It is a trap for the unwary and a feeding ground for attorneys with clients who are hurt, emotional, and seeking "justice"--even if it comes at their client's own detriment. Without suggesting that everyone adopt an attitude of distrust and cynicism, the arts industry, and not-for-profits in particular, might be better served by engaging in a bit more strategic thinking when it comes to assuming that the rules (whether they apply to taxes, visas, contracts, copyrights, discrimination, or a myriad of other issues) simply don't apply to them. If nothing else, understanding the rules can protect artists from one another--especially when they turn on you!

Music and the law this week brought my attention to a lawsuit by a 60-year-old violinist against Young Concert Artists. YCA, now in its 50th season, holds a competition for young musicians; it then presents the winners on its concert series in New York, Washington, and Boston, and provides them with management as they get their start in the concert world. This violinist, Martin Stoner, recently lost his job with the New York City Ballet Orchestra, so he is looking for new avenues of work. He wants to audition for YCA; and now he’s bringing a suit against them for age discrimination because the cutoff age for their auditions is 26.

Others have already weighed in on the basic foolishness of this claim, which seems an obvious ploy on Stoner’s part to get media attention (and it’s working, because I’m writing about him). The man has been playing the violin professionally for years; he knows how the business works; and he’s had plenty of time to show the world whether or not he has the talent and chops to become the kind of world-class soloist YCA is looking for. Furthermore, YCA is clear about its age requirements (and most competitions have some sort of age cut-off or restriction, frustrating as this is to the 30-something who has yet to be recognized).

The larger issue, though, is the difficulty of applying civil law to musical organizations. There are
always complications when questions of artistic merit are brought into conflict with issues of civil
rights. Traditionally, orchestra musicians in particular have had to put up with less than desirable treatment at the hands of their conductors; and while no one today would tolerate outbursts a la Toscanini, courts do tend to recognize that artistic considerations take precedence over civil ones. In October, an oboist for the Welsh National Opera went to court after being dismissed, claiming he had been bullied by the conductor, Carlo Rizzi; the court upheld the right of the orchestra to dismiss a soloist for what it sees as poor performance.

And whether the performance is poor or not is usually not for a court to decide -- though back in the 1980s and 1990s, after the trombonistAbbie Conant was demoted from first to second chair in the Munich Philharmonic because the conductor Sergiu Celibidache told her “We need a man for first trombone,” she actually did, in the course of her subsequent lawsuit, have to play for an independent evaluator and collect dozens of testimonials to demonstrate her artistic merit. And in that case the court did, repeatedly, rule against the orchestra.

Yet orchestra are seeking to become more socially-minded, civic organizations. An illustration of the conflict between the elite role of the musician and the community goals of an orchestra, which I've already posted about, is the Detroit Symphony Orchestra management's desire for a contract that requires its musicians to take on non-performing duties like teaching and outreach activities. Does this imply a more social definition of an orchestra musician? Would this lead to a scenario down the road where an orchestra job would go not to the very best musician, but the most well-rounded one -- as Ivy League schools select no longer purely on the basis of academic merit? And would such a step imply the gradual eroding of a certain kind of artistic elitism -- or open up opportunities to more, and different kinds of, performers?

I trust, though, that most musicians will continue to understand that their "right" to perform is not something that a court can uphold, or force upon an unwilling presenter.

*Edited to add: I was just told of an example closer to home I hadn't known about: a violinist with the Kennedy Center Opera House Orchestra who sued the Kennedy Center alleging that he was let go after his probationary period not for poor performance, but because he was Jewish and Heinz Fricke, the then-music director, and the orchestra manager, Shana Alewine, were German and therefore anti-Semitic. The case was decided in 2000; the violinist, Boris Reznikov, won $150,000.

By Anne Midgette | November 3, 2010; 10:00 AM ET

Tuesday, October 5, 2010

Visa Filing Fees to Increase November 23

Our "friends" at U.S. Citizenship and Immigration Services (USCIS) have increased the fees for O and P visa petitions filed on or after November 23, 2010, as follows:
  • The fee for an I-129 petition for an O or P visa will increase from $320 to $325.
  • The fee for premium processing will increase from $1000 to $1225.

Petitions mailed, postmarked, or otherwise filed on or after November 23, 2010 must include the new fee.

To avoid delays in processing, please note the fee change and plan accordingly. USCIS will likely return any petitions that are filed with the new fee before November 23rd, or with the old fee after November 23rd.

See the for complete details regarding all fee changes.

Wednesday, September 8, 2010

Visa Petitioners: Big Brother May Be Contacting You!

The U.S. Department of State (DOS) may soon be contacting petitioners at random to verify petitioner information!

We know about the Vermont Service Center (VSC) and the California Service Center (CSC), but have you ever heard of the Kentucky Consular Center (KCC)? KCC is a DOS facility that provides domestic support to the worldwide operations of the Bureau of Consular Affairs Visa Office. KCC provides consular posts with official interagency notification of H, L, O, P, and Q classification petition approvals, as well as additional information that DOS may choose to add about a petition, petitioner and beneficiary.

After USCIS approves a visa petition, it sends the approval to KCC, which must enter it into a database before a foreign consulate can issue a visa to an artist. (This is why original approval notices are no longer needed during the visa process—though we continue to recommend strongly that artists bring copies of their petitions and approvals with them to the consulate.)
KCC recently started a pilot program to verify information contained in the approved nonimmigrant visa petitions it receives from USCIS. The information relates to the petitioner, the artist or group, and the artist or group’s proposed U.S. activities. These checks will be done primarily by telephone by a KCC contractor who will contact the petitioner. The checks will be unannounced and random. They should occur shortly after USCIS transfers the petition to KCC.

If You Receive a Call from a KCC Contractor:

  • Don’t panic!
  • Ask for the contractor’s name and confirm its credentials with KCC (call 606-526-7500) before providing any information. Multiple governmental agencies may audit a given petition, so find out which agency is seeking information in case follow-up is needed.
  • Try to contact counsel immediately if contacted by a KCC contractor.
  • Don't panic!
  • Do not speak with government agents or contractors without a witness present.
  • Retain complete copies of the I-129 petitions and supporting documentation you filed and review this documentation before speaking with the contractor.
  • If the contractor asks for information you cannot provide accurately without further research, say so! Do not “guess” about any information provided during the call. If unsure about some requested information, tell the contractor you will follow up with accurate information. This is especially important if you do not have immediate access to information being requested by the KCC contractor and are unable to call on someone else to answer the questions during the call.
  • Remember that any information obtained during the call and subsequent nonimmigrant visa interview can later be used to deny a visa (even where USCS has already approved the petition) and/or can be referred to USCIS and ICE for further investigation.
  • Don't panic!

Be prepared to provide the following information:

  • Whether you, in fact, submitted the petition;
  • If a business, when you were incorporated (or otherwise founded);
  • Your physical location;
  • Number of employees;
  • Names of shareholders (if a stock corporation);
  • Location of attorney of record (if represented in the petition);
  • General information regarding your operations and business.

What You Can/Should Do Ahead of Time:

  • Be prepared for an unannounced telephone call by an authorized contractor.
  • Have a policy for handling such calls.
  • Ensure that all relevant records are up to date and information is easily accessible.
  • Maintain full copies of each petition, including all forms you sign.
  • Determine who can speak with a contractor on your behalf.
  • If you typically rely on others to serve as your petitioner, make sure they are aware that this may be contacted by KCC.
  • If you receive advance notice of such a call, consider contacting FTM Arts Law immediately.

At this point, we can only hope that this pilot program, and whatever ensues, does not affect the timing of visa issuance to petition beneficiaries, but, unfortunately, we cannot be sure this will be the case. We will make every effort to update you as soon as we have more information as to how this new scheme is actually impacting the arts community.

Thursday, July 15, 2010

USCIS Proposes Another Increase In Visa Petition Fees: Its Time To Whack Another Mole!

Dealing with U.S. Citizenship and Immigration Services (USCIS) is like playing the “whack-a-mole” game at the state fair. As soon as you deal with one issue, another rodent rears its ugly little head. As you may recall, within the last six months, USCIS tried to re-define the term “agent” to limit the ability of petitioners to submit visa petitions to cover multiple engagements, then they began arbitrarily cutting-off classification periods where there were engagement gaps longer than 45 days. The performing arts community (led by the League of American Orchestras, American Federation of Musicians, Association of Performing Arts Presenters, Dance/USA, North American Performing Arts Managers and Agents, OPERA America, Performing Arts Alliance, and Theatre Communications Group) successfully drove back these moles. Undaunted in its in inexplicable campaign to vex the performing arts community, USCIS is now proposing an across-the-board fee increase!

The USCIS proposes a $5 increase in the fee for the regular I-129 visa processing form (which would bring the fee to $325), and a $225 increase in the Premium Processing fee (bringing the total fee to $1,225). The performing arts community is urging USCIS to immediately make long-overdue improvements to the regular artist visa process and to refrain from increasing the already-unaffordable Premium Processing fee. In other words, they need to fix their already broken system before charging us more for the same arbitrary, capricious, and unacceptable—and often illegal—results!

Comments to USCIS are due by July 26. However, in its inimitable fashion, the League of American Orchestras has made it easy for you to get involved and make your voices heard! Visit:

At the League’s website, you will find more information on this issue as well as sample language for you to personalize and instructions for how to submit your comments to USCIS. It really couldn’t be easier and it will only take a few minutes. We hear regularly from many of you about how frustrated you are with USCIS. Don’t tell us, tell them!

The League will submit detailed comments on behalf of orchestras, in collaboration with its national colleagues in the Performing Arts Visa Working Group: American Federation of Musicians, Association of Performing Arts Presenters, Dance/USA, North American Performing Arts Managers and Agents, OPERA America, Performing Arts Alliance, and Theatre Communications Group.

At this point, we need to consider forming our own arts-based tea-party movement—with a shot of vodka thrown in!

Wednesday, June 23, 2010

Visa Application Fees Increased: The US Needs Your Cash

Effective June 1, 2010, many US consulates increased their visa application fees. This is in addition to the fees charged by USCIS for the petitions themselves. Just as a reminder, a petitioner pays fees to USCS to file an I-129 so an artist or group can be approved for a visa. Once the visa has been approved, the artist or group (unless they are Canadian) must then make an appointment at a US Consulate where each artist or member of the group must pay a visa application fee, be interviewed, harassed, etc. This is the fee which has increased.

I am attaching the link to the US Consulate in London.

However, each US Consulate is independent and charges different fees. Some charge additional fees to issue multiple entry visas or simply as “reciprocity” for additional fees charged to US citizens by the country where the particular US Consulate is located. Before sending yourself or your artists to a consulate, be sure to check the consulates website for specific information on any new fees at that consulate. You can reach each consulate through the State Department's website:

Wednesday, May 19, 2010

Artist Visa Classification Periods: Your Immediate Attention Required!

We hear often from those of you who are justifiably frustrated, angry and distraught over the process of obtaining visas for foreign artists to perform in the United States. The process is arbitrary, expensive, and unpredictable...and, in many respects, insulting and offensive to the arts community. Now, here’s something you can do about it. A chance to be heard…but we need you to act quickly.

United States Citizenship and Immigration Services (USCIS), the agency in charge of approving visa petitions for foreign artists, occasionally makes overtures about improving the process, takes a small step forward, and then takes two steps back. Often making things worse. USCIS is, once again, willing to making a gesture to address a key concern, but is asking for our feedback to their proposal. If we don’t give them some direction, then we are forfeiting the process to individuals who have, very often, never seen a live performance.

Here’s the issue…

Historically, assuming an artist or group qualified for a visa, the visa would be approved to cover the US engagements on their itinerary, even if the engagements were months apart. For example, if an opera singer or orchestra had a series of engagements in the spring and then another set of engagements in the fall, their visa would be issued for a full year to cover both sets of engagements. For a conductor hired to conduct concerts for a summer festival, it was not uncommon to receive a three-year O-1 visa, even if the artist’s only engagements were in July and August of each successive year. And then….it all went very wrong.

Beginning in the fall of 2009, USCIS began arbitrarily reversing, reinterpreting, and reinventing (without warning and without legal authority) a number of long standing policies and regulations. Among them, visa classification periods began being severely truncated. Where artists or ensembles had gaps between engagements longer than 45 days, USCIS began approving visas only to cover the engagements prior to the first gap. After that, to re-enter the US to perform the remaining engagements, the artists and ensembles would have to re-apply for visas to cover the subsequent engagements.

Despite USCIS’s protestations to the contrary, this was an obvious attempt to drive more revenue into the system. Whereas an artist could previously file one petition to cover a spring and fall tour, the artist would now have to file two petitions: one for each “tour.” This would, of course, require two $320 filing fees and, if USCIS was lucky, two $1000 premium processing fees. For those of you following such things, during this same period of time, USCIS also attempted to redefine and limit the word “agent” in order to force each venue to file its own petition as opposed to the longstanding practice of allowing an agent to file a petition to cover an itinerary of multiple engagements. The end goal was the same: multiple petitions and, thus, multiple filing fees.

A coalition of key performing arts organizations, including the League of American Orchestras, American Federation of Musicians, Association of Performing Arts Presenters, Dance/USA, North American Performing Arts Managers and Agents, OPERA America, Performing Arts Alliance, and Theatre Communications Group, was able to convince USCIS to reverse its position with regard to “agents” and preserve the ability for a petition to cover an itinerary of engagements…albeit with a few new irritating, but relatively minor, bits of required documentation. And now, that same devoted, beleaguered, and relentless group of arts advocates has persuaded USCIS to re-think its new policy of arbitrarily restricting the length of a visa classification period…maybe…as it pertains to O visas…and….maybe….P visas….but we don’t know.

Here is where we need your help…

USCIS has issued a memorandum on the guidance it proposes to offer USCIS examiners when processing visa petitions in which there are gaps of time between performances. (I, too, was surprised to learn that USCS examiners could read, but apparently they do if it comes from USCIS!) While we are cautiously optimistic and generally support the memo, UCIS has given us until May 24, 2010 for the performing arts community to weigh in with statements and comments explaining why efficient and reliable visa processing is essential to supporting international cultural exchange. We also need to explain the financial and logistical burdens of requiring foreign artists and ensembles to apply for multiple visas when they are on tour throughout the year. (Bear in mind, these issues are not obvious to people who do not frequent the arts. That is less of an admonition than an enticement to use this as an opportunity to educate.)

The Performing Arts Alliance has conveniently created a link where you can read the proposed USCIS memo as well as send an email message directly to USCIS with your thoughts and comments. Suggested comments and talking points are even included for you. Please visit:

As the memo only currently applies to O visas (for individual performers), we particularly need managers, agents, artists, and presenters who can also explain to USCIS why this memo should also apply to P visas for groups and ensembles.

If USCIS tried this with any other industry, there would be a flood of lawsuits, politicians, and outrage. But the arts, as an industry, have long been trained to ask rather than demand. To be grateful for crumbs, rather than insist upon an entrée. As a result, we are too often marginalized and overlooked when it comes to regulatory and legislative policies. However, what we may lack in highly paid lobbyists, highly funded political action committees, and highly mad tea-parties, we can make up for in creativity, passion, and numbers. Please take a moment to let USCIS know we are out there, we care, and we count.

If possible please send us a copy of what you send USCIS so we can keep track of the responses.


Tuesday, May 11, 2010

Non-Profit Tax Returns: Avoiding "Doomsday"

The New York Times recently printed an article with the ominous title “One-Fourth of Nonprofits Are to Lose Tax Breaks” (see the Times’ website at In fact, the opening line of the article reads “As many as 400,000 nonprofit organizations are weeks away from doomsday…” Before everyone heads to panicsville, let’s take a quick look at what this really means for all of you nonprofit performing arts organizations out there.

Generally, any organization that has obtained tax-exempt status from the IRS is required to file an annual tax return – either Form 990, or Form 990-EZ – to report income and expenses. Up until 2007, tax-exempt orgs whose annual gross receipts were $25,000 or less were exempt from this filing requirement. However, a new law passed several years ago included a provision requiring ALL tax-exempt orgs to file an annual return. The new law also provides that any tax-exempt org that fails to file its annual return three years in a row will lose its tax-exempt status. Thus, the filing deadline is looming: any tax-exempt org that has not filed its returns for the last three years will lose its tax-exempt status!

The very good news for these organizations is that filing the necessary return could not be simpler! Small tax-exempt organizations whose annual gross receipts are $25,000 or less can opt out of filing the elaborate Form 990 or the slightly-less-elaborate Form 990-EZ, and INSTEAD file the Form 990-N, also known as the e-Postcard. Filing the e-Postcard requires that you submit the following information regarding your tax-exempt org:

1. Your organization’s legal name
2. Any other names your organization uses to do business (i.e., your d/b/a name)
3. Your organization’s mailing address
4. Your organization's website address (if you have one)
5. Your organization's Employer Identification Number (EIN)
6. The name and address of one of your organization’s principal officers
7. A “yes” or “no” answer to the question “Has your organization terminated or gone out of business?”
8. A “yes” or “no” answer to the question “Are you gross receipts normally $25,000 or less?”

That’s it. And filing is free!

The usual deadline for filing any of the e-Postcard is May 15th. However, since May 15th falls on a Saturday this year, you have until the following Monday, May 17th, to get your return in to the IRS. The form can be submitted online here:

One important note – tax-exempt organizations whose gross receipts are normally above $25,000 always have been required to file a tax return each year, so this change doesn’t affect them. (But they, too, would lose their tax-exempt status if they failed to file for three years in a row!)

So, with all due respect to the New York Times, this is hardly a doomsday scenario. And to all of you small nonprofits who have neglected your returns for the last three years: Take a break, pour yourself a stiff drink, and take a few minutes at your computer to ensure that your tax-exempt organization remains in good standing!

Posted by Robyn Guilliams, May 11, 2010

Friday, April 30, 2010

Force Majeure: Don't Blame Me, Blame God!

On the evening of Sunday, April 18, my wife and I were scheduled to be enjoying our first night attending a long planned arts conference in France. We imagined ourselves sitting at a bistro in Saint Michel taking in the golden glow of a romantic evening in Paris. Instead, I found myself eating fish tacos with my parents in Virginia. We, like many others, were the victims of the Icelandic volcano-whose-name-cannot-be-pronounced which cancelled almost all trans-Atlantic travel. As the ash spread, so did the cancellations of artists who could not travel to Europe and artists who could not travel to the United States. And then the phone calls began: grumblings from presenters upset because artists were unwilling to change flight plans or take trains as well as grumblings from artists who were upset that presenters were unwilling to compensate them. After all, the volcano wasn’t their fault! I even heard from a manager lamenting that just because the Force Majeure clause in his artist’s contract allowed for a cancellation, he should still be entitled to a commission for booking the engagement in the first place!

“Force Majeure” is nothing more than the fancy, legalistic, and less religious jargon for what everyone else would call an “Act of God.” In essence, a “force majeure” or Act of God is a contractual provision which permits a party to cancel or breach the contract without having to pay damages or incurring any liability to the other. Whereas a cancellation or termination clause typically permits a party to cancel or terminate for ANY reason, a Force Majeure clause allows a party to cancel or terminate only if something happens which is beyond anyone’s control and which could not have been anticipated. So, if the Force Majeure forces the artist to cancel, he/she is not liable to the venue for the venue’s lost ticket sales, lost out of pocket costs, or the costs of hiring and advertising another artist or performance. Similarly, if the Force Majeure forces the venue or presenter to cancel, it is not liable to the artist for the artist’s lost fees or out of pocket costs.

However, nothing in the arts is ever that simple. Many people, incorrectly, assume that there is a common understanding or standard of Force Majeure and that, in the event of a fire, blizzard, flood, or other unforeseen event, there are automatic protocols which will govern the situation. In fact, you will find that presumptions and assumptions differ wildly when it comes to Force Majeure and that people, in the midst of a crisis, tend not be at their most rational. For example, I had one of my clients sued by a presenter when the artist cancelled his concert upon the death of the artist’s mother. Why? Because the “Act of God” clause in the presenter’s contract provided for the death or incapacity of the artist and did not extend to the artist’s relatives or family. (Granted, the presenter also happened to be a heartless, greedy jerk, but that wasn’t the “official” reason.) On the other hand, one of my clients was outraged when, just a few months ago, a venue was forced to cancel her performance due to the “snowmagaddon” that swept the East Coast and wanted the return on the deposit the venue had paid. The artist contended that she was entitled to keep the deposit to cover her lost fees and costs. However, what about the venue’s lost revenue and costs? According to the artist, the Force Majeure clause was intended to protect her, not the venue. Or there was the university-based performing arts center which claimed the right to cancel due to Force Majeure because their facility shares a parking lot with the university’s stadium and when the school rescheduled the homecoming game, the theater lost its parking. I have also known artists who claimed that an opportunity to perform in a movie or sing at the Met was an Act of God entitling them to cancel their conflicting engagement as well as venues who claimed that poor ticket sales or loss of funding could similarly be ascribed to the hand of God. I even know of a manager who claimed that the failure of his artist to obtain a visa was an Act of God which entitled the artist to full payment regardless of the fact that the artist was legally barred from performing in the U.S. (While many believe God is everywhere, I have it on fairly good authority that God dwelleths not in the halls of USCIS!) Just because something is unanticipated, unexpected, or undesirable does not make it an Act of God that legally allows a party to cancel and walk away from an otherwise binding and enforceable contract.

Fortunately, Force Majeure is a creature of contract and, like all other contractual provisions, can be drafted to suit the specific needs, concerns and circumstances of the situation. Unfortunately, like most contractual provisions in arts contracts, Force Majeure clauses tend to err on the side of brevity and oversimplification, rather than nuance and specificity. Or, worse, many just “assume” that all contracts are cancellable if there is an Act of God. In fact, if there is no Force Majeure clause, or the Force Majeure clause is so broad as to be meaningless, you are left with a contractual concept known as “impossibility” whereby a breach of a contract may be excused if performance was truly impossible—not merely inconvenient, but truly impossible. For example, if an artist’s flight is cancelled, would it have been impossible for the artist to drive all night or take a later flight? As the name suggests, meeting the standard of “impossibility” is often, in and of itself, impossible.

The better solution is to have better Force Majeure clauses. It is never too late to dust off your forms and templates and check your Force Majeure clause to make sure that, first and foremost, there is one and, second, it is comprehensive enough to cover your specific circumstances and concerns. While no contract can even contemplate every possible scenario, you want your Force Majeure clause to do more than simply state that “either party can cancel in the event of an Act of God.” Rather, you want your clause at least to provide some parameters within which to address two specific questions: (1) What constitutes a “force majeure” event? (2) What are the ramifications?

Let’s assume the venue is open, but the artist must cancel due to a Force Majeure in the artist’s life or part of the world. Does the artist have to reimburse the presenter for any of its lost marketing expenses or costs? If the artist had already received a deposit, does it have to be returned? What if it’s the presenter who experiences the crisis, but the artist is ready, willing, and able to travel and perform? Does the presenter have to make a good faith effort to re-book the artist at a future date? Can the artist keep any deposits or advanced payments to offset the cancellation? Can an artist claim Force Majeure due to the death or injury of a family member or relative? Can a venue claim Force Majeure if it experiences an unexpected budget shortfall or a financial crisis? What if the engagement is for a series of performances and a Force Majeure forces the cancellation of only some of the performances? Is the artist’s engagement fee reduced on a pro-rata basis? What if the artist is a group and a member becomes sick or injured? Does the group have the option to find a replacement or can the venue claim Force Majeure and cancel? Does it make a difference if it’s a key member of the group?

There are no right or wrong answers. The only wrong approach is to wait until after the Volcano has blotted out the lights of the marquee or the tsunami has filled the orchestra pit to pull out your contract and see what it says.

Wednesday, April 7, 2010

Welcome to "Raising the Curtain"

Welcome to "RAISING THE CURTAIN" , the blog, newsletter, and discussion forum of FTM Arts Law.

FTM Arts Law, a division of Fettmann, Tolchin & Majors, PC, blends superior legal skills and services with an in-depth familiarity with the arts and entertainment industry and an uncompromising dedication to strengthening artistic relationships, creative problem solving and prevention, and empowering artists and the arts community. In addition to being a nationally and internationally recognized firm in the specialized field of visas and immigration issues for foreign artists and performers, FTM Arts Law provides a comprehensive range of services to clients in all the fields of entertainment and the arts--including music, theater, dance, motion pictures, television, the fine arts, the performing arts, publishing, graphic art and design, artist and arts management, and non-profit arts related organizations.

At FTM Arts Law, we don't just know the law, we know how to apply it to the arts and entertainment field. We don't consider ourselves a part of the legal profession which happens to have arts clients. Rather, we see ourselves as a part of the arts and entertainment industry that provides uniquely tailored legal, business, representation, and consultation services. This critical distinction allows us the perspective to understand the unique needs and concerns of those working in the arts and entertainment field and provide practical and cost-effective solutions.

The arts and entertainment industry has always presented its practitioners with immense rewards along with immense challenges. It’s easy to become overwhelmed with all the legal, business, administrative, and management issues that can stand between a great idea and its realization. It is essential that arts professionals have reliable sources of information so they can focus on the creative aspects of their work.

On a regular basis, we will be RAISING THE CURTAIN on updates, news, commentary, ideas, discussions, issues, strategies, solutions, and legal developments which we feel are important to the arts and entertainment industry, including such topics as:
  • Artist Visas, Green Cards and Related Planning for US Tours and Engagements of Foreign Artists
  • Tax Issues for Foreign Artists
  • Licensing, Copyright, and Intellectual Property
  • Non-Profit Organization and Management
  • Psychotherapy and the Art of Artist Management
  • Arts Management
  • New Business Models for the Arts
  • Contracting Tips and Strategies
  • Important court cases and legislative changes
  • Common Myths, Mistakes, and Misunderstandings
  • Dealing With Divas
  • Crisis Prevention
  • Dispute Resolution

We also want your comments and ideas. While attorneys are welcome, this is not a legal forum for the legal community to bicker and debate arcane points of law, legal analysis, and recent court decisions. There are plenty of other blogs and forums for that (and, as we offer no CLE credit or networking, that should discourage most of you!) Rather, our focus is on arts professionals who want to know more about the business aspects of their business and who are willing to share their questions, challenges, frustrations, solutions, opinions, and ideas with us and with each other. What frustrates you? What problems have you solved recently? What’s working and what’s not working? Let us know.

Please bookmark, check back often, and participate.