How Musicians Get Paid for Digital Performances of Their Music

By Vanessa Kaster, Esq. LL.M.

www.iplegalfreebies.wordpress.com

Musicians MUST REGISTER with SoundExchange in order to get paid royalties from digital performances. Digital performances include having songs played on Pandora, Sirius Radio and other satellite or internet radio streaming sites. You might think that being registered with ASCAP, BMI or SESAC covers this, but it does not. Separate registration with SoundExchange is required to collect royalties when your music is played on digital internet and satellite music providers.

SoundExchange pays royalties to performers and copyright owners. For example if you hear Aretha Franklin’s famous rendition of ‘Respect’ played over internet radio, the royalty payments are paid to both Aretha as the performer (paid to her by SoundExchange) and to Otis Redding who wrote the song (ASCAP pays Otis Redding’s estate). However, if you hear Otis Redding’s original version over internet radio then his estate is compensated for both the original composition, and also for the sound recording (ie both ASCAP and Sound Exchange pay royalties to Otis.) If you own your own track and play on it, then you get paid twice when your track is played on Pandora, Sirius Radio and other satellite or internet radio streaming sites.

The only catch is that Musicians, performers and copyright owners must be proactive in registering with SoundExchange to collect their royalty payments. Reportedly, SoundExchange has between $40 and $200 million dollars in royalty payments sitting around waiting to be collected by musicians. Collect the royalty payments owed to you by registering with Sound Exchange pronto.

Register with SoundExchange: http://soundexchange.com/performer-owner/performer-srco-home/

Embedding quality metadata on your tracks and double checking that your digital distributor is doing the same is another important step in being paid all the digital music royalties that you are owed. SoundExchange reports that millions of dollars of unpaid royalty payments are due to inadequate metadata embedded on music files and CDs. Make sure that the metadata embedded on your tracks includes: 1) the artist or group name, 2) the copyright holder (you or label name), 3) the track title, 4) the album titles and 5) ISRC number, if available. Embedding this data on your tracks ensures that you are identified as the person to whom royalty payments are owed. Without embedding quality metadata on your tracks, generic information like ‘Track 1’ by ‘Artist Unknown’ is submitted in royalty payment reports to SoundExchange. When this happens, it’s very unlikely that the royalty payments earned by that play will ever make it to you.

In addition to REGISTERING with SoundExchange, double check that the metadata embedded on your tracks is accurate, clear and detailed. Don’t miss out on getting paid your digital royalties.

p.s. if you haven’t already submitted your music to Pandora or Sirius Radio here is the contact info for that too:

http://www.pandora.com/corporate/contact.shtml& http://www.sirius.com/contactus

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Many thanks to Vanessa Kaster for submitting this article for "Raising the Curtain." Vanessa's blog posts on music copyright issues have been recognized as 'Top Music Blogs' by www.thedailyreviewer.com and also by Artist House Music http://www.artistshousemusic.org/featured/articles.

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.

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!

http://voices.washingtonpost.com/the-classical-beat/2010/11/music_and_the_law.html

Music and the law

ArtsJournal.com 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

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 www.ArtistsfromAbroad.org for complete details regarding all fee changes.

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.

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:

www.americanorchestras.org/advocacy_and_government/foreign_artist_visa_tax_news.html

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!

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.
http://london.usembassy.gov/fee.html

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: http://www.usembassy.gov/