International Touring: A Report From The Front Lines

As the U.S. Legal Advisor to the International Artist Managers’ Association (IAMA), I’ve been asked to prepare an update on a variety of current issues involving international touring at the next membership meeting in London on November 27, 2015. Not only do I adore IAMA, but as this would provide a lovely excuse for my wife and I to avoid having to spend Thanksgiving with either of our families, I was more than happy to agree. Having prepared the report, I thought I would share it with all of you…  

Visa Stercus

1.         USCIS is presently taking a minimum of 8 – 10 weeks to process visa petitions at both the Vermont and California Service Centers. This means that, as of today, if you need to have an artist enter the U.S. any earlier than March 2016, you need to pay the additional $1225 for premium processing. (The official visa processing times that USCIS posts on its website have always been purely propaganda and should always be disregarded as such.) 

·         As a reminder, visa petitions can be filed up to one year in advance of the performance date. 

2.         For those of you who have Canadian musicians eligible for P-2 visas, we are receiving reports that Canadian AFM is experiencing a backlog in preparing filing petitions. This is in addition to the current USCIS processing time of 8 – 10 weeks.

3.         I’ve said this before, but the message not getting through, so its worth repeating. ARTISTS CANNOT DO ANYTHING IN THE U.S. ON A TOURIST VISA OR ESTA (Visa waiver) STATUS!!  Please stop listening to the colleges, universities, and festivals that tell you otherwise. They have nothing to lose other than perhaps having to find a replacement artist. On the other hand, I have recently learned of two artists—one from Germany and the other from Spain—who have had their ESTA status permanently revoked because they tried to enter the U.S. in ESTA status to perform in the U.S. Both artists had entered multiple times in the past and one were merely entering to “perform” a master class.

·         It doesn’t matter whether an artist is paid or unpaid, whether the concert is free, or whether the performance is for educational purposes. They must have an appropriate visa—most often an O or P visa. United States Immigration Officers are taking this very seriously. 

4.         In preparing visa petitions, please start collecting and providing the evidence USCIS wants as opposed to giving them what you have lying around in your press package. The days of being able to supply a bio and a few press articles are long gone and we are seeing more and more visa denials and delays because of this.

·         I recently, and with much regret and sadness, had to advise a client to re-cast a role because the artist’s European management was simply refusing to cooperate in our efforts to obtain a visa for the artist. (In case that manager is reading this…no, USCIS will not “just google the artist to find out how famous he is!”)

Tax Stercus

1.         For those of you waiting to receive a refund check from the Internal Revenue Service (IRS) for a non-U.S. artist who has had 30% withheld from their gross engagements fees and are due a tax refund, please be advised: the check is NOT in the mail, and won’t be for the foreseeable future. The IRS has added an extra layer of scrutiny to nonresident tax returns involving refunds. Aside from the usual 2 to 3 month processing time, there is a second review to be sure that everything on the 1042-S form is accurate and complete.  If the IRS senses ANYTHING off, the taxpayer will receive a letter asking for more info. To be fair, the IRS has announced that it will be paying interest on all overdue refund checks. To be practical, it doesn’t matter how much interest they offer to pay if, in fact, they never issue the refund.

·         Bottom Line: There is currently a very good chance that if 30% is withheld from an artist’s engagement fee, the artist will not get that money back…or, at least, not for the foreseeable future. Please plan cash flow accordingly. 

2.         A Central Withholding Agreement (CWA) is still the best way of avoiding or reducing the mandatory 30% withholding required from all engagement fees for non-U.S. artists. To be eligible for a CWA, among other requirements, an artist must have filed a U.S. tax return for each prior year in which they have ever performed in the U.S.-- even where no tax was owned. If an artist has not filed past U.S. tax returns, he or she will be required to file them as a prerequisite to obtaining a CWA. Unfortunately, we are seeing a sharp increase in the instances where filing such past tax returns is triggering an IRS audit in which they are requesting documents and records from the artist’s world-wide income.

·         In this one particular area, the IRS has displayed a remarkable degree of efficiency in identifying artists who have simultaneously made the least amount of money and kept the least amount of records to prove it.

3.         Obtaining Social Security Numbers (SSNs) and Individual Tax Payer Identification Numbers (ITINs) continue to be a challenge. While SSSs are not any easier for an artist to obtain, they have not become harder. ITINs, on the other hand, have become increasingly difficult, if not impossible, to get. Despite both staffing and budget cutbacks, the IRS has been requested to scrutinize ITIN requests more closely—particularly with regard to proof of identity. For most non-US residents, the most obvious and best proof of identity is a copy of their passport. However, the IRS lacks the resources and training to evaluate how to tell legitimate passports from forged ones. As a result, the IRS is now only accepting copies of passports that have been certified by the actual agency that issued the passport. However, even when this is provided, we are seeing the IRS send notices requesting that the actual, physical passport be sent to them instead. DO NOT DO THIS! You will never see that passport again!

·         There IS one option for some Europeans:  There are IRS offices located in the U.S. Consulates in Paris and London. One can go to these offices and request an ITIN in person (with an original passport, which the IRS will review and return on the spot.)  HOWEVER – one can obtain an ITIN only if one has an “immediate tax need”, such as filing a return. So, if requesting an ITIN in the Paris or London Consulates, one must also bring a completed tax return in hand, ready to file.

4.         We are seeing a large number of U.S. presenters--especially those based at colleges and universities—insisting that non-U.S. artists are legally required to have either a SSN or ITIN in order to perform or get paid in the U.S. Please be advised: There is no such law! While such numbers may make book keeping and accounting easier for the presenter, there is no law that requires an artist to have either one. Not only are SSNs and ITINs not proof of work authorization, but as we addressed above, many artists will be unable to get them in advance—if ever.   

5.         Canada requires 15% withholding for gross engagement fees of non-Canadian performers performing there (similar to the 30% withholding requirement in the U,S.) Canada Revenue allows performers to file a waiver/reduction request to reduce/waive the withholding (an R-105 request). On their website, Canada Revenue indicates that the deadline for filing such a request is 30 days prior to the first payment due.  However, it's taking them MUCH longer to process the requests. So, we are recommending that you file your request with them AT LEAST 60 days prior, or earlier, if possible.

General Travel Stercus 

1.         There is nothing new to report with regard to the ban on bringing musical instruments into the U.S. that contain ivory or other protected materials. United States Customs and Border Patrol isn’t strictly enforcing this with any degree of regularity. However, if any orchestras are touring and don’t want to take the risk, we are recommending that they contact Heather Noonan (hnoonan@americanorchestras.org) at the League of American Orchestras (http://americanorchestras.org) who is among the leading and most effective legislative arts advocates in the U.S. and is happy to talk to them about the “Instrument Passport” process.

·         The League and others are continuing to lobby for specific amendments, including exemptions to the rules for “personal effects” (which would include carry-on musical instruments).

2.         There has been some recent concern about Amtrak, the U.S.’s ersatz rail service, implementing a new policy requiring additional seats to be purchased for oversize musical instruments which cannot fit into overhead compartments. To date, this policy has been posted, but not enforced. We are recommending that artists and ensembles that intend to use Amtrak to travel to engagements within the U.S. check with an Amtrak representative in advance of the tour…and then be prepared for whatever they are told in advance to then be either incorrect or disputed by Amtrak at the actual time of travel.  

Other Stercus

1.         When negotiating fees for U.S. engagements, please remember to specify the currency in which the artist is to be paid, including exactly how and when the exchange rate is to be calculated. We are seeing an increased number of misunderstandings over this point.

·         At the same time, use this as an opportunity to clarify any other costs or deductions (such as taxes, visas costs, hotel, travel, etc.) which either are or are not to be included as part of the engagement fee.

2.         Too many people are still relying on general, vague, boilerplate, or unspecific contractual language to take the place of actual negotiation. Do not rely on the misguided belief that there are standard legal terms and procedures that magically govern engagements and bookings when words fail. If you want something, or don’t want something, say something—or, preferably, write it down.  

3.         When dealing with performances of new works or contemporary music, bear in mind that licensing laws differ. What’s in the public domain in Europe may not be in the United States. Even a re-arrangement or re-orchestration may not be permissible in certain countries. 

Press "Pause" On That Recording

Dear GG Arts Law:

In reviewing an engagement contract for one of my artists, I was surprised to see that the presenter wants the right to record the artist’s performance as a “work-for-hire”. The Presenter says that this is a standard requirement and also that its reasonable because my artist is protected by language in the contract that says: “In no event shall Producer have the right to exploit the recordings and/or an audiovisual program in connection therewith in any other manner other than non-commercial, educational and/or charitable uses or exhibitions without Artist’s prior written approval and without a separate agreement, negotiated in good faith with respect to any such uses or exploitation thereof.” Is this standard these days? Should I advise the artist to agree to this?

Standard for whom? As I have said, and will keep repeating until someone listens, no terms are “standard”—not recording rights, nor commissions, nor exclusivity restrictions, nor unilateral cancellation rights, nor any other nonsense which parties like to throw at one another under the banner of “standard.”

While, ultimately, it’s your artist’s decision, not yours, you should advise your artist not to agree to the language the presenter has proposed. The proposed language reflects a common mistaken belief within the performing arts part of the entertainment industry that so long as you don’t sell a recording, then all other uses are inherently “non-commercial.” However, particularly in the classical world where a classical recording hasn’t actually generated a profit since the release of “Fantasia”, no one really “sells” recordings anymore—at least, not for a profit. This means that, except in limited situations, there really are no practical uses or exhibitions for recordings other than “non-commercial, educational and/or charitable uses or exhibitions.” This further means that if you were to agree to the proposed terms, the presenter could do just about anything they wanted with your artist’s recording. Their proposed “protection” is meaningless.

Just because a recording isn’t sold, is unprofitable, is used for education, or is used by a non-profit organization does not make it inherently “non-commercial” or valueless. A recording still has value. Using a recording to promote the presenter or further a presenter’s mission provides value to the presenter which the presenter has not paid for. Otherwise, why does the presenter want it in the first place? Presenters need to stop believing that just because they engage an artist and pay for the artist’s performance then that also includes the right to record the artist’s performance and “own” the recording. In the real world, you only get what you pay for. When you buy a car, does it come with a chauffeur? It’s not merely presumptuous, but it completely demeans the value of the artist’s work—which, quite frankly, happens all too often these days by the same parties who should know better.

In addition, an artist always needs to be able to control how the artist is seen and heard. A poor recording of a brilliant performance could have devastating impact on an artist—particular a young or developing artist. Even a good recording, if released in its entirety, could limit an artist’s ability to release a recording of the same work in the future if it has already been made available for free.

While I generally have no objection to a recording being made, it’s the uses of and rights to the recording that need to clearly defined—and limited. First and foremost, unless the engagement fee includes an additional fee for “ownership” of the recording or the opportunity to perform with a particularly presenter is of such magnitude as to provide additional value to the artist, then the whole concept of a “work for hire” should be off the table. Instead, if anything, the presenter should only be able to use limited excerpts of the recording for limited purposes. Just as importantly, the artist should be always able to approve any recording to make sure that the artist is pleased both with her performance as well as with the quality of the recording itself. Third, whatever rights are granted to the presenter in an artist’s recording, should be granted to the artist as well. If the presenter gets the right to make and use a recording, then the artist should get a copy for the artist’s own promotional and marketing purposes as well. Any restrictions or approvals should be mutual.

Paying By The Numbers

By Brian Taylor Goldstein, Esq.  

Dear GG Arts Law:

A presenter is refusing to pay one of our artists who has an O-1 visa, but does not have a Social Security Number. Does a foreign artist who is performing in the U.S. under an O-1 also have to get a Social Security number in order to get paid?

Many presenters and venues—particularly those affiliated with university or other academic institutions—have an affinity for imposing arbitrary policies and procedures and insisting that they are legal requirements. To be fair, many of those presenters and venues are merely passing along edicts that have been dictated to them by other departments and offices within their labyrinthine institutions who are more familiar with hiring snow plow services than with engaging non-U.S. artists.

Non-U.S. artists are not required to obtain anything other than an appropriate artist visa (usually, but not always, either an O or a P visa) in order to be authorized to perform legally in the U.S. Whilst it is not uncommon for presenters and venues to insist that a non-U.S. artist have either a Social Security Number (“SSN”) or the SSN’s evil twin, an Individual Taxpayer Identification Number (“ITIN”), as an additional condition for an artist to be paid, that is not a legal requirement. More often than not, it is merely a requirement of the presenter or venue’s finance department or booking software which cannot physically write a check without having either a SSN or ITIN. Provided the artist has an appropriate artist visa, he or she is legally permitted to be paid and, unless there is an express contractual provision to the contrary, the presenter is legally required to honor an engagement contract and to pay the artist for services performed.

SSNs and ITINs have absolutely nothing to do with work authorization or immigration law. Rather, they are creatures affiliated with U.S. tax obligations and tax returns. An artist will need either an SSN or an ITIN to file a U.S. tax return, which artists are required to do—especially if they want a refund of any engagement fees that might have been subject to 30% withholding. However, if the artist elects not to file a U.S. return and just let the IRS keep their money, that's entirely at the discretion of the artist. The failure or an artist to have a SSN or ITIN cannot be used as an excuse by a presenter or venue to pay the artist or otherwise honor a valid engagement contract.

Never Play Chess With Pigeons

By Brian Taylor Goldstein, Esq.  

Dear GG Arts Law: 

I’ve been asked sign a bad performance review with a number of inaccuracies. Can I be fired if I don’t sign it? Or should I insist that it be amended to reflect the truth? Our Executive Director is very emotional and hard to deal with, but I’m thinking that I should at least try and sit down and get her to change her mind rather than just give in.    

Unless you have an employment contract—or, in some cases, an employee manual—that specifically sets forth the circumstances and conditions under which you can be terminated, then it probably doesn’t matter whether you sign it or not. Many states, such as the State of New York, are what are referred to as “employment at will” states. You would need to check the laws in your specific state. However, “employment at will” means that an employer can pretty much hire and fire as he or she pleases and a discharged employee usually will have no legal recourse even when the discharge is unfair or unreasonable. The only exceptions would be termination based on statutorily defined discrimination—such as race, religion, gender, age, or disability. (Certain more enlightened jurisdictions, such as New York City, also include sexual orientation and marital status in this list.) Other than that, an employer in an “employment at will” state can walk in one day and fire anyone for any reason. In other words, unless one of the exceptions apply, you can be fired whether you sign the bad review or not.

Ideally, it would great if you could correct the record. A bad review that indicates you failed to follow instructions or disregarded office policies could negatively impact your eligibility for unemployment compensation should you be fired. However, correcting the record may not always be practical or realistic.

If your boss is “very emotional and hard to deal with”, you are not alone. There is no shortage in our industry of exceptionally talented and creative individuals who, nonetheless, should be heavily medicated. Many of these souls find themselves unfettered and autonomously in charge of distinguished arts organizations and businesses.

I am constantly amazed at how many people cling to the belief that a logical argument, persuasive reasoning, or “the right words” will magically transform an otherwise irrational person into Socrates. In fact, whether you are negotiating a contract or trying to mollify an artist, attempting to reason with an emotional or irrational person is like playing chess with a pigeon: it doesn’t matter how brilliant you are, the pigeon is still going to knock over all the pieces and poop on the chess board. Getting such a person to admit he or she is wrong about anything will only be met with defensiveness, paranoia, reminders of how you should be more appreciative of their past largess with regard to your past transgressions (most of which you will have never been told about before), and accusations that you are being argumentative, not a team player, exasperating, and disrespectful.

The best, and only, way to begin any conversation with someone being unreasonable or emotional, and who also happens to be in charge, is to validate, never confront. Assuming you want to remain employed, you need to accept that your boss “owns reality” at the moment and learn to live and work within that fantasy land. You don’t have to admit the facts to admit that your boss’s perception that you have done a poor job or failed to meet expectations is a perception you are enthusiastically willing to correct. Like a bad review of a concert or performance, thank the critic and then move on.

When It Comes To Visas, Plan For The Worst and Hope For The Best

By Brian Taylor Goldstein, Esq.   

Dear GG Arts Law:

We got our P visa for a group returned because it included the tour manager. USCIS is saying we need to file a separate petition and get a separate union letter for him. But USCIS has approved prior P petitions with everyone on the same petition. Is this something new? This would mean another petition and another union fee. Also, we have heard that USCIS is taking 8 weeks to review petitions. Is this true? The group cannot afford to premium processing fees for two petitions.

It’s almost impossible to choose amongst the many frustrating aspects of the U.S. immigration laws pertaining to visas for artists and performers. The high fees for poor service? Having to provide documentation that The New York Times is a “major publication”? Trying to explain to a USCIS examiner that an orchestral conductor is, in fact, a “lead role”? The regulatory presumption that the U.S. Government (which has never significantly supported any artistic endeavor ever since Abraham Lincoln died in a theater) is in a better position that an artistic director to determine who is and who is not a “distinguished artist”?  However, it’s the unpredictability of the entire process that most people fail to appreciate with sufficient magnitude.   

It has always been the rule that a petition for a P-1 visa can only include the actual performers in the group. Any support staff—tour managers, general directors, production managers, stage crew, administrative personnel, and even artistic directors and choreographers (unless they will also be performing)—must be listed on a separate petition for a P-1S visa. Unless someone is actually performing in front of the audience, do not list them as part of a P-1 petition. 

The frustration in your case is that the USCIS apparently approved your prior P-1 visa petitions where you included the group’s tour manager on the same petition as the performers. While this saved you both time and money in the past, it was also a mistake on the part of the USCIS. It’s not uncommon for USCIS to treat similar petitions or even prior petitions from the same artist or group inconsistently, approving some and rejecting others. The problem, in addition to poorly trained, underpaid, and overworked USCIS examiners, is that unlike other legal proceedings—and, yes, filing a visa petition constitutes a legal proceeding just like filing a lawsuit—USCIS is not bound by the precedence of its own prior decisions, actions, or mistakes. In other words, just because USCIS overlooked an evidentiary requirement or interpreted an immigration regulation a certain way in the past does not mean they are under any obligation to do so in the future. Even if they approved a visa for an artist or group in the past does not mean they have to do so again. Under U.S. immigration law, USCIS is always free to apply the rules as strictly as they wish, ask for additional documentation, or even determine that a prior visa petition should not have been approved.

The “take away” from this is that you should never assume that simply doing everything you did last time will result in the same outcome. Always prepare every visa petition for every artist and every group as if it was the artist or group’s first petition, paying particular attention to understanding and satisfying all of the regulations and evidentiary requirements regardless of how absurd or inconvenient. Take no shortcuts. Overkill. Overkill. Overkill. This includes making sure that the immigration rules and procedures have not changed since you last prepared and filed a visa petition. USCIS frequently changes filing fees and updates its forms with little notice unless you go looking for it.

For example, earlier this year, USCIS updated the Form I-129 that is required for an O or P visa petition. Guess what? THEY JUST UPDATED IT AGAIN!!!  That’s right, effective August 13, 2015, there is an even newer new I-129 form. At some yet to be announced date, any petitions using any version prior to August 13, 2015 will be rejected. So you might as well start using the new form now. If you prepared a visa petition last year and tried to use the same form, it would be returned.

Always begin a visa petition by getting the newest version of the USCIS forms directly from the USCIS website: www.USCIS.gov  DO NOT USE FORMS FROM ANY OTHER SOURCE AS THEY MAY BE OUTDATED. www.USCIS.gov will also be your best source for any new filing fees or other updates.

For instance, were you aware that effective August 30, 2015, you will no longer be able to upgrade pending petitions to premium processing on-line? Now you are. After August 30, 2015, all premium processing forms will require physical paper I-907 forms to be sent physically to USCIS.

As for the processing times: Yes, USCIS (particularly the Vermont Service Center) is experiencing a significant backlog of 8 weeks or more for standard processing. This could change again over the next few months, but right now it is taking an outrageous amount of time. Unlike forms, never rely on the processing times posted by the USCIS Service Center themselves. They are notoriously inaccurate and misleading. Always assume that unless you have paid the additional USCIS Premium Processing Fee, a petition will take a minimum of 4 – 6 weeks and plan accordingly.

In addition to www.USCIS.gov, your best source of current updates and information should be www.artistsfromabroad.org and other official sources of vetted information. An artist’s or group’s performance should be too important to trust to gossip or anecdotal surveys.   

In your situation, there’s no way to avoid having to file a separate P-1S petition for the group’s Tour Manager. That’s the law and always has been. However, if your group cannot afford premium processing and they will be performing for a non-profit or educational institution, then contacting a U.S. Senator or member of Congress can “sometimes” be helpful under the right conditions, including the particular political leanings of the Senator or member of Congress. If the stars and moons align, the Senator or member of Congress can contact USCIS and request an emergency expedite on your behalf. 

A Tribute To Copyright Infringement

By Brian Taylor Goldstein, Esq.   

Dear Brian and Robyn: 

Could you please advise how a copyright application would be filed for a tribute musical of deceased popular singer? The show would consist of all of his songs. Would it be better to file it as a compilation or concert? Can all the songs be included in one application? Thank you

Is this, by any chance, the long awaited musical “Indian Love Call”, a tribute to the intoxicating sounds of Slim Whitman? I heard there’s a lost studio recording somewhere featuring Slim Whitman, Tiny Tim, Axl Rose, and Celine Dion performing a cover of “Total Eclipse of the Heart.” It would make a great Act I finale.

For most musicals, a copyright registration application would include the book, music, and lyrics written by the authors. However, tribute musicals such as Mamma Mia, Jersey Boys, All Shook Up and Beautiful, which are also known as “jukebox” musicals, are different in that they typically feature works which has been previously performed and composed by others. The authors and creators of such musicals must license all the music from the original composer or composers. This gives them the rights to use the music and lyrics in the musical, and usually to record a cast album, but gives the creators of the musical no ownership rights in the individual works themselves. You cannot claim copyright ownership, or file a copyright registration, with regard to any material that is not original or which you do not either own or create yourself.

Producing a tribute musical about a singer can pose a number of additional challenges in that, unless the singer also wrote the music he sang, you would need to obtain licenses from the publishers and composers of the songs the singer performed. In addition, the name, appearance, or costume of the deceased singer might be considered trademarks controlled by his estate.

If your production is a scripted musical (ie: with a story, plot and characters), as opposed to a concert, then you could claim a copyright in the book and spoken dialogue, and, perhaps, the order in which the music was performed, but not in the music and lyrics themselves. Even arrangements or orchestrations would need to be licensed from the original composers and could not be included in your copyright registration unless your license agreement permitted you to do so.  If your production is actually more of a tribute concert, then there may actually be very little you can copyright or own.

The whole point of registering a copyright is to claim ownership and stop others from copying or infringing your work. However, in the field of tribute performances, there may actually be more the publishers or composers of the music and the estate of a deceased singer can do to stop you than you can do to stop others. Remember, a “tribute” is not a magic word that means “copyright or license free.” The entertainment field is littered with the carcasses of concerts and performances that were stopped because the subject of a tribute did not like, want, or approve the gesture. In any artistic venture, before investing the time, talent, and energy it takes to create and protect your work, you first want to make sure you are not improperly using the time, talent, and energy of other artists that came before you. 

Advice for the Young and Restless

By Robyn Guilliams

Earlier this year, GG Arts Law and GG International was in the process of hiring a new administrative assistant.  As I’ was reviewing applications, I’m sad to say that I was shocked – shocked! – at the very poor quality of some of the cover letters and resumes we’ve received. 

So, as a public service to all of you young’uns out there who are searching for a job in the performing arts field, or for those of you who already work in the arts and would like to move up the ladder as quickly as possible, I’d like to offer a bit of advice – some pitfalls to avoid – when submitting a cover letter and resume to a potential employer:

• Spelling errors:  This is the most prevalent problem, and the one that is most easily remedied.  Do not rely on spell-check, people!  Proof-read your letter and resume, and then proof them again.  I realize we all make the occasional spelling mistake (my own emails are proof of this), but the documents you submit as your job application are the only criteria by which you are judged for a job, at least initially.  If you won’t take the time to proof-read your letter and resume, this tells me everything I need to know about what kind of employee you will be.  When I see these types of errors, the letter and resume immediately go into the recycling bin.
  
  
• Writing Style:  The ability to write well is required for many jobs in our industry.  (And even if not, it’s a great skill to have!)  A number of the cover letters we’ve received, while not being grammatically incorrect, are very awkwardly written.  I highly recommend “The Elements of Style”, by William Strunk and E.B. White, to anyone wishing to improve his or her writing skills.  This book is a great resource for young professionals who want to learn to communicate more effectively through writing.
  
  
• Irrelevant Job Experience:  Tailor your resume to the job for which you’re applying.  There is no reason to include work experience that is completely irrelevant.   For instance, don’t include in your “employment history” your job as a bag-boy at Piggly Wiggly when you were 14 years old.  I don’t care.  Don’t tell me about working as a ball-girl for your college softball team.  Seriously.  Nothing about that work experience is going to make me say, “This is the person we’ve been looking for!”
  
  
• Try to keep your resume to one page.  Unless your professional career began at age eight, you probably don’t have enough relevant content to justify a longer resume.  Keep in mind – there’s no need to write a long narrative describing the responsibilities of each of your jobs.  Bullet points will do.  And, please, please, don’t use an 8-point font in an effort to cram everything on to one page.  I’m old, and I can’t read anything written in an 8-point font unless I hold the page an inch from my face.  I don’t like doing this.  It’s annoying, and it makes me feel old.
  
  
• Don’t include the details of your entire professional life in your cover letter.  This is why you attach a resume.  Pick a few items from your resume that are directly relevant to the job for which you are applying, and include a detail or two about each experience.  Your cover letter should be no more than three paragraphs, and should be concise.  As I’m reviewing 150 letters and resumes, and I come across your two-page, ten-paragraph cover letter, I’ll want to stick a fork in my eye.  I already don’t like you.  (This really isn’t the reaction you’re looking for from your potential employer, is it??)
  
  
• Avoid hyperbole in your cover letter.  Don’t tell me about your “extensive” experience in whatever.  If you are in your early twenties, it’s highly unlikely that you have extensive experience in anything.  (See above regarding the one-page resume.)  Along the same lines, don’t tell me about your “professionalism”, “strong work ethic” or “integrity”.  I see these descriptions so often that they’re virtually meaningless.  And don’t describe yourself as “an ideal fit” or “exceptionally qualified” (particularly when you are not at all qualified).  Your resume will speak for itself in this regard.
  
  
• Don’t describe yourself as “detail-oriented” in your cover letter.  (This goes over especially badly when your letter is riddled with typos.)  When applying for a job, everyone describes themselves as detail-oriented.  Who the heck is going to say “I’m not so great with details”?  I can get an idea of your attention to detail from how carefully you’ve crafted your resume and cover letter, the types of jobs you’ve held in the past, and your responsibilities in those jobs. 
  
  
• In your cover letter, there’s no need to write about how “passionate” you are about the arts, how much you love going to the theater, or that Beethoven’s Eroica is your favorite musical work.  This is not your OkCupid profile.  Everyone goes into our field because we feel strongly about the arts, and we wouldn’t be happy working in any other field.  Your education, work history and other relevant experiences will show that you are committed to a career in the arts!    

Although we were sad to say goodbye to our former assistant, Ann, we were lucky to find an amazing new person. Turns out a professional stage manager was just want we needed to manage traffic control around here. Welcome Christina!   

New I-94 Process for Artists Touring the United States

United States Customs and Border Patrol (CBP) has announced that, effective April 30, 2013, artists and performers (as well as everyone else) entering the U.S. will no longer receive physical I-94 forms. The process will now be electronically automated!

Form I-94 is the official arrival/departure record issued to foreign artists and travelers when they enter the U.S.. This form is also issued to those who adjust their status while in the U.S. (ie: change from F to O), or who extend their visas. The I-94 confirms the foreign individual’s status or visa category (O, P, F, B1/B2, etc.) and the departure date by which they must leave the U.S. When the foreign traveler leaves, they surrender the I-94 either to the commercial airline carrier or to CBP directly. The I-94 information and the date of departure are then entered into a database to verify that the traveler did not overstay the required departure date.

Up until now, every artist entering the U.S. (except, occasionally, Canadians, depending on when and where they enter) has been given a paper Form I-94 to fill out (most often while waiting in line to enter the U.S.), the bottom half of which is stamped with their status and departure date and returned to them by a CBP officer.

While the departure date most often corresponds with the visa classification period approved by United States Citizenship and Immigration Services (USCIS), a CBP Officer at the port of entry has the complete and unfettered discretion to issue a sooner departure date or extend the departure date by up to 10-days. Regardless, the artist MUST leave the US by the date stamped on the I-94 regardless of what was approved by USCIS or written on their visa. The I-94 form is not only important for establishing the official departure date, but it is also used to verify immigration status by employers, schools and universities, and various governmental agencies. For example, it is necessary to obtain drivers licenses and social security numbers. The I-94 is also required by USCIS when an artist is currently in the US and files a visa petition to extend their visa. In such cases, the petition must include a copy of the I-94 to show that the artist was validly admitted and is currently “in-status.”

Beginning on April 30, 2013, CBP will no longer require foreign visitors to fill out a paper Form I-94 upon arrival to the U.S. by air or sea and will no longer issues paper I-94 forms in return. Instead, CBP will gather the arrival/departure information automatically from the foreign artist’s electronic travel records and, upon entry of the artist into the U.S., will enter their status and departure date electronically. (Because advance information is only transmitted for air and sea travelers, CBP will continue to issue a paper form I-94 “at land border ports of entry”—which is government-speak for Canada and Mexico.)

With the new CBP process, a CBP officer will stamp the passport of each arriving artist. The admission stamp will show the date of admission, class of admission, and the departure date by which the traveler must leave. Travelers wanting a hard copy or other evidence of their valid admission and immigration status will be directed to a special website (www.cbp.gov/I94) where, using their passport numbers and names, they can access and print as many physical copies of their I-94 as they need for employers and for other purposes. (Please note that this site will not be active until after April 30, 2013)

Artists will not need to do anything differently upon exiting the U.S. If the artist did not receive a paper Form I-94, CBP will record the departure electronically via manifest information provided by the carrier or by CBP. If the artist was issued a paper I-94, they will continue to surrender it to the commercial carrier or to CBP as before.

CBP will phase-in the Form I-94 automation at air and sea ports of entry throughout April and May. Foreign artists will continue to receive the paper Form I-94 until the automated process arrives at their port of entry.

You can read more about CBP’s plans and schedule to automate Form I-94 at:
http://www.cbp.gov/xp/cgov/travel/id_visa/i-94_instructions/i94_rollout.xml

CBP has also issued a fact sheet that includes frequently asked questions regarding the impact of automation, visa revalidation, passenger processing times, and more. You can access that at:
http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/travel/i94_factsheet.ctt/i94_factsheet.pdf

CBP contends that this automation will streamline the entry process for travelers, facilitate security, and reduce federal costs by saving the agency an estimated $15.5 million a year. That remains to be seen. Whether or not CBP effectively informs the myriad of other state and federal agencies whose employees are trained to look for a physical I-94, and whether or not those state and federal agencies will actually understand that the process has changed and accept a print out from a website, and whether or not CBP actually gets its website to work, also remains to be seen. Only time will tell.

IMPORTANT CHANGES REGARDING CWA REQUESTS!

By Robyn Guilliams

The IRS has announced that, effective October 1, 2012 (that’s this Monday, people!), ALL requests for Central Withholding Agreements (CWAs) must be sent to the following address/fax number:

         Central Withholding Agreement Program
            Mail Stop: 1441
            2001 Butterfield Road
            Downers Grove, IL 60515-1050
            
            Fax:  (603) 493-5906

The full announcement can be viewed on the IRS’s website at
http://www.irs.gov/Individuals/International-Taxpayers/Central-Withholding-Agreements

In addition, it’s worth noting that the announcement indicates that, effective on January 1, 2013, CWA requests received less than 45 days prior to the first event to be covered by the CWA will not be processed and such event(s) will be subject to withholding at 30% of the gross income…So – be sure to get your request submitted by the deadline!

The announcement also addresses requirements for nonresidents working in the U.S. to obtain a Social Security Number (SSN).  The IRS technically is correct that it is not “necessary” for a nonresident to wait 10 days after arriving in the U.S. to request a SSN.  However, in my experience, many workers at the Social Security Administration (SSA) apparently never received this memo.  I know of a number of nonresidents who have been turned away from SSA offices because the nonresident didn’t wait 10 days after arriving in the U.S. to request his SSN.  So, rather than make the trip into SSA (and possibly wait in long lines) only to be turned away, I strongly advise nonresidents to wait the 10 days before trekking into SSA!

Finally, the IRS has posted a Q & A from a recent “phone forum” on CWAs, which can be viewed here http://www.irs.gov/Individuals/International-Taxpayers/Questions-and-Answers-from-CWA-Phone-Forum 

This page addresses many misconceptions about payments to – or for the services of – nonresident artists, and is recommended reading for anyone who presents OR represents foreign artists (complete with citations to the relevant IRS Treasury Regulations – woohoo!)

IRS Announces New Interim Requirements for Nonresidents Who Wish to Obtain ITINs!!

By Robyn Guilliams

The IRS announced on Friday that it is changing (or in the IRS’s words, “strengthening”) its procedures for obtaining an Individual Tax Identification Number (“ITIN”).  Unfortunately, these new procedures may make it more difficult for foreign artists filing tax returns from abroad to obtain ITINs and stay in compliance with U.S. tax law.

Individuals who have earned compensation for work performed in the U.S. are required to file U.S. tax returns to report that income, even if no U.S. tax is due.  And to file a tax return, an individual must have a U.S. tax identification number.  There generally are two types of tax identification numbers for individuals filing U.S. returns – Social Security Numbers (SSNs), and ITINs.

As many of you know, SSNs may be obtained by nonresident individuals ONLY by applying in person, at a Social Security Administration office in the United States.  And, many also are painfully aware that there are onerous time restrictions for individuals applying for SSNs – in effect, an individual must wait 10 days after arriving in the U.S. to apply for a number, AND the individual must have 14 days of work authorization remaining on his I-94 card at the time of applying for an SSN to be eligible for the SSN.  So, if an artist is here in the U.S. for less than 24 days, obtaining an SSN is practically impossible.

The alternative for these individuals is to request an ITIN at the time of filing a U.S. tax return.  Along with the one-page W-7 ITIN request form, the IRS requires a nonresident individual to submit proof of his or her identity and “foreign status” to obtain an ITIN.  This proof can take the form of a certified copy of the individual’s passport alone, or copies of two of the following: 1) a current national ID card (that includes the individual’s name, address, photograph, date of birth and expiration date); 2) a foreign voter registration card; and 3) a civil birth certificate.  In the past, the IRS has allowed copies of these documents to be certified by a U.S. notary, by a foreign “apostille” (a foreign notary seal recognized by the Hague Convention), or by the government agency that issued the document.

Effective immediately, however, only copies of documents certified by the agency that issued that document will be accepted with ITIN requests.  The IRS will no longer accept passport or other copies that have been certified by U.S. or foreign notaries.  So, for instance, if an individual wishes to submit a copy of his passport as proof of his identity and foreign status, the individual must obtain a copy of the passport certified by whatever government agency issued that passport.

Note that this new “strengthened” procedure is in place only until the end of this year, when the IRS will issue "NEW" guidelines for obtaining ITINs.

The IRS has posted additional information on its website to address additional questions regarding the new procedure.  This information may be found at: http://www.irs.gov/newsroom/article/0,,id=258474,00.html

What does this mean for foreign artists who will be required to file U.S. tax returns, but do not yet have a U.S. tax identification number?  If at all possible, the artist should try to apply for a SSN while in the U.S.  This can difficult due to tight touring schedules, but doing so may be simpler than obtaining documents certified by the appropriate government agency, depending on the artist’s country of citizenship.  The alternative will be to obtain documents (e.g., passport copies) that are certified by the government agency that issued the documents, at least through the remainder of 2012.  When the new ITIN guidelines are issued for 2013 (most likely late this year), we will certainly let you know what the new, permanent guidelines will be, and how those new guidelines will affect foreign performers!

ARTISTS FROM ABROAD has been Updated, Re-Designed, and Re-Launched!

The  League of American Orchestras and Association of Performing Arts Presenters, in conjunction with FTM Arts Law, are pleased to announce the re-launch of ARTISTS FROM ABROAD
 
Relied upon by thousands as the most complete and up-to-date online resource for engaging foreign guest artists and non-US arts professionals, artistsfromabroad.org provides essential guidance, forms, sample documents, and useful links.

Seriously....this is it! Everything you ever wanted to know about visas and taxes for foreign guest artists all in one spot--now fully updated and re-designed.

Authored by Jonathan Ginsburg and Robyn Guilliams of FTM Arts Law, the newly redesigned and re-launched website makes it even easier to find the information performing arts organizations and artist managers need to successfully navigate the U.S. visa and tax procedures required when engaging international artists for performances in the U.S. The new site includes:
 
* RSS feed that can automatically notify you of site updates
* Improved, intuitive navigation
* Updated content and links throughout!

Bookmark ArtistsFromAbroad.org today!

The Truth About Industry Standards

The following was posted on March 21, 2012 on FTM Arts Law's blog "Law and Disorder: Performing Arts Division" which can be found on MusicalAmerica.com:

The Truth About Industry Standards

By Brian Taylor Goldstein

Dear FTM Arts Law:

I was recently reviewing a contract I received from an agent. When I asked for some changes, she told me that her contract was “industry standard” and that nothing could be changed because that’s the way everyone does it. In the future, I don’t want to waste anyone’s time or appear like I don’t know what I’m doing. Are there industry standards for certain types of contracts? Where can I learn what is and is not legally required?

Do not mistake “industry standard” for “legally required.” Something which is “legally required” is mandated by statutes or regulations—such as visas, taxes, licenses, or permits. The term “industry standard”, on the other hand, usually means: “This is how I’m used to doing it and I’d rather not change.” Too often, its employed as a form of peer pressure to make you feel that you have no right to make counterproposals, counter offers, or suggest a new or different way to structure the deal or transaction. Nothing could be further from the truth! The only industry standards in this industry are that there are NO standards! This is not to suggest that there are not ways to structure some deals and transactions that are more common than others, but even a common practice or custom does not mean that it is unchangeable. More significantly, if you polled a cross section of performing arts professionals about any given topic, you will find a significant divergence of opinion as to what is and what is not “standard”. In other words, just because someone has done something a certain way for 20 years does not mean that’s the way everyone else must do it, much less you. It may be “standard” for that individual or organization, but it doesn’t make it “standard” for anyone else.

In your question, you don’t mention the specific terms that were at issue. Depending on the circumstances, what you were asking for may have been completely reasonable or completely ridiculous. But that really doesn’t matter. Perhaps more than in any other industry, the arts is based on relationships and success depends on the health and strength of those relationships. When entering into any arts-based relationship, you should always feel free to ask questions, propose new ways of doing things, and think creatively. This does not mean you will get what you want. That will depend on negotiations and the negotiating positions of the parties. If you need to licensing rights from another party or want to work with them more than they want to work with you, its to be expected that they may counter any or all of your proposals with “take it or leave it.” However, that’s not because of any predetermined “industry standard”, its just that they may be in a better position than you are to dictate the terms they want. That’s not necessarily unfair, its just reality. In response to an attorney who once presented me with a contract which he insisted was “industry standard”, I told him that, according to his “standard”, the artist gets screwed, so we need to pick a better standard. It never hurts to ask!

________________________________________________________________

To ask your own question, write to lawanddisorder@musicalamerica.org

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

"Playing Both Sides of the Net" by Edna Landau

FTM Arts Law is pleased to present industry icon, Edna Landau, who has agreed to be a guest blogger on our site. As most of you know, Edna served as Managing Director of IMG Artists from its founding in 1984 until her departure from the company in December of 2007, during which time she personally managed the careers of some of the world’s most beloved classical artists. We posed the following question: “When you represent an artist, who is the “client”, the presenter or the artist?” Here is her response:

Playing Both Sides of the Net

By Edna Landau

I have often thought that one of the hardest things about being an artist manager is to juggle loyalty to one’s two clients: the artist on your roster and the presenter who you hope will engage your artist. As long as everyone’s needs are in sync, there is no problem. The San Francisco Symphony wants your artist on particular dates, playing the Beethoven Violin Concerto with guest conductor, Herbert Blomstedt. Perfect! Your artist is available, will be playing that very concerto in the same season prior to this engagement and loves working with Maestro Blomstedt. Would that it were that easy all of the time. Let’s look at a few slightly different sets of circumstances:

1. Your artist is contracted to play with the New York Philharmonic on a Tuesday evening in February and has a first rehearsal with the Los Angeles Philharmonic on Wednesday afternoon at 2:00 pm. There is a flight from New York on Wednesday morning, leaving at 7:00 am and getting in at 10:30 am. The orchestra is insisting that the artist must be in L.A. the night before the first rehearsal, especially because of the possibility of inclement weather. The artist is unwilling to give up either engagement and insists that you convince the orchestra that a 10:30 am arrival in L.A. on the day of the first rehearsal should be fine. They argue that in the worst case scenario, they can perform the concerto on only one rehearsal. In this instance, which client do you favor? The manager needs to view the Los Angeles Philharmonic as a highly valued long-term client, with the awareness that taking a belligerent stance that could potentially affect the artistic quality of the scheduled concerts is not wise. If the worst happens, the relationship between manager and orchestra can be seriously compromised and it may also take a long while before the artist is re-engaged. That said, if artist and conductor have performed the work together before and it is not an unfamiliar work to the orchestra, there might be some room to persuade the orchestra to take a chance, since they will presumably still have the dress rehearsal together. If the orchestra doesn’t agree, especially since it can be extremely complicated to change rehearsal orders at the last minute, it is the manager's job to convince the artist that they will actively pursue the next possible opportunity to bring artist and orchestra together.

2. The Toronto Symphony has engaged an artist for subscription concerts. At the time when the contract was issued, they asked for a clause stating that the artist would attend a post-concert reception. The artist’s manager consulted with the artist who asked that the presenter accept wording indicating he would make best efforts to attend. He did not want to be contractually bound in the event he took ill and felt he couldn’t do anything more than the concert. The concert day arrived. The artist learned that very day that his best friend from conservatory days was driving 200 miles to attend the concert and wanted to have dinner afterwards. He would be leaving at 6:00 am the next morning. The artist asked the manager to check with the presenter if it would suffice for him to meet VIP’s in the green room and be excused from the reception. He clearly recalled never having contractually agreed to any post-concert activity. The presenter informed the manager that their largest donor, who had funded the concert, was hosting the reception and would not take kindly to a fleeting appearance by the artist. Their relationship with that donor could also be in jeopardy. Whose arm should the manager twist? Neither. The artist should be reminded that the presenter might well be in a position to re-engage them far into the future and it would behoove them to put their professional priorities first. At the same time, the manager might inquire as to whether the artist could attend for a brief while (not to exceed 30 minutes) and whether the donor could be sure to be accessible at that time. They could also check whether the artist’s guest could attend. If the answer is full reception or nothing, the artist should accede to the request, as it was known from the beginning. If, on the other hand, the artist asked to be excused due to illness, which is presumably obvious to the presenter and the donor, the artist’s health should be of paramount concern and a backstage meet and greet might suffice.

3. An artist of some renown is being engaged for a recital in a major city where there are two suitable venues. One has a capacity of 800 and the other has a capacity of 1500. The artist already played once before in the smaller hall and wants to now play in the larger one because they view it as being more prestigious. The presenter only sold 500 seats to the artist’s last recital and feels it is too big a stretch to move to the larger hall. The risk of losing considerable money is too great and they think it would be far better for themselves and the artist to be able to advertise a sold out concert. The artist wants the manager to hold firm with regard to the larger venue. What to do? No manager wants to see a presenter lose money and an artist shouldn’t either. If the artist is adamant, one solution might be for the manager to propose a box office split in the larger venue that would ensure that the presenter’s reasonable and well documented expenses are covered, with the artist receiving an agreed upon fee (perhaps what they would have received in the smaller hall). Any remaining box office income could then be split by the two parties as agreed. The manager will want to stay on top of the presenter's venue and marketing costs and the presenter may request that the artist offer a program that is not their most esoteric. Some presenters might prefer not to share their event budget with the manager but rather to pay a guaranteed fee plus bonus payments when certain pre-established levels of ticket sales are reached.

In the thirty plus years I worked in artist management, I never had any doubt that the artist was my primary client (hence the job description ARTIST manager). I never pushed an artist to play particular repertoire because I knew that making a sale depended on it. At the same time, I never underestimated the importance of cultivating presenter relationships and doing everything possible to please them. Underlying every decision was a sense of privilege that so many important artists trusted me with their representation and believed that I would put their needs first and work with them to reach the best solution in all challenging situations. I hope that all artist managers concur with this approach, no matter how difficult the current economic climate may be.

© Edna Landau 2012

www.ednalandau.com

___________________________________________________

Edna’s many years of dedication to the arts and the field of arts management have been the subject of a CNN documentary on their series entitled "Movers", broadcast internationally in the year 2000. She was also featured in New York Magazine's May 15, 2006 issue entitled "The Influentials" in which she was described as "the intensely coveted, hugely devoted grande dame of New York managers who inspires a rare level of trust and commitment from her clients." In January of 2008, the International Society of the Performing Arts awarded Ms. Landau their International Citation of Merit, recognizing her Lifetime Achievement in the performing arts. In 2009, she was appointed to the Board of Directors of Chamber Music America.

Edna is currently available to provide private consulting services for artists, ensembles, and organizations. She also writes "Ask Edna", a free weekly career advice blog hosted by www.MusicalAmerica.com. For those looking for wise, sensible, and valuable career and organizational advice in the performing arts industry, look no further. You can visit Edna’s website at www.ednalandau.com.

Washingtonian Magazine Names Brian Goldstein to its 2011 List of Best Entertainment Lawyers

Washingtonian magazine has named Brian Taylor Goldstein to its 2011 list of Washington's Best Entertainment Lawyers. Brian was named as one of the "Stars of the Bar" in the area of Performing Arts and Entertainment and was recognized as among the top 10 "dealmakers" who "represent authors, athletes, and other clients in media and the arts."

The Washingtonian's "Best Lawyers" list, which is now available in the December 2011 issue, highlights "the very best in legal talent" within the Washington, DC metropolitan area.

With offices in Fairfax, Virginia and New York City, Brian is a partner in FTM Arts Law, the entertainment division of the law firm of Fettmann, Tolchin and Majors, P.C., and Managing Director of the arts management and consulting firm of FTM International.

Beware of Scams Involving Fake IRS Emails, Chinese Website Registrations, and Free Money!

By Robyn Guilliams

FTM Arts Law has learned of several email scams being perpetrated by individuals claiming to be with the Internal Revenue Service (IRS). The most current scam involves foreign companies and IRS Form W-8BEN. According to the IRS website (http://www.irs.gov/newsroom/article/0,,id=211669,00.html):

In this scam, fraudsters modify a genuine IRS form, the W-8BEN, Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding, to request detailed personal and financial information. This could include nationality, passport number, bank account and PIN numbers, spouse's name and mother's maiden name, or other personal or financial information or security measures for financial accounts. The scammers may use the genuine form number and name or may make up a new form number, such as W-4100B2. They either e-mail or fax the form or letter. If only a letter, the letter itself contains the request for the personal and financial information. The letter, which claims to come from the IRS, states that the recipient will face additional taxes unless he or she quickly faxes the required information to the number provided by the scammer.

We know of several foreign performing arts companies who recently requested Employer Identification Numbers from the IRS and subsequently received an email, supposedly from an IRS employee, requesting financial information from the company.

Note that all email addresses for actual IRS employees end in the suffix "@irs.gov" (e.g., jane.doe@irs.gov). If you receive an email from a supposed IRS employee with any other type of email address (such as "irs.irs@xixia.net"), it is a fake!

Also, the IRS will NEVER initiate contact with anyone by email. If you receive an email purporting to be from the IRS, do not respond to the email!

Go to the IRS website http://www.irs.gov/privacy/article/0,,id=179820,00.html and/or

http://www.irs.gov/newsroom/article/0,,id=155682,00.html to find out how to spot these scams, and how to report the emails to the IRS.

In addition, we have also had several clients contact us recently about emails they have received from entities claiming to register/audit domain names in China and certain countries in Asia and Africa. These entities purport to inform you that someone is attempting to register your domain name in another country and, unless your respond immediately, your will lose your domain name in these countries. Typically, they kindly offer to register your domain name on your behalf. Do not respond. There are no such entities. It is a scam to get your information. While it is possible for someone to register the same domain name as yours with a different suffix (ie. bigartistmedia.com v. bigartistmedia.co.uk), the registration entities do NOT warn you ahead of time. Moreover, registration conflicts are resolved through Uniform Domain Name Dispute Resolution Policies as well as through other applicable laws and treaties--except in China and certain countries in Asia and Africa where such laws don't apply in the first place!

Lastly, it should go without saying, any emails offering to pay you a "fee" to hold money in your account, claiming you have inherited a large sum from a deceased 4th cousin in Uganda, or seeking to wire your organization an unsolicited donation from an arts-loving patron in Uzbekistan should be deleted and ignored. Angels exist, but they do not email you from third world countries asking for wiring instructions.

As a general rule, never send any personal information in response to an unsolicited email and always verify phone numbers, email addresses, and websites.

What the $%#@??? The IRS Has Changed the CWA Procedures... Again!!!

By Robyn Guilliams

Yes, just when you thought you had mastered the IRS’s procedures for obtaining a Central Withholding Agreement (“CWA”), the IRS has changed the requirements. Is this just another bureaucratic effort to frustrate the arts community? Not entirely. It just seems that way.

Apparently, the IRS has discovered certain “loopholes” in their prior procedures for obtaining a CWA that permitted artists, agents and managers to submit budgets that artificially lowered the taxable income of a foreign artist or tour. Whether or not you were aware of such loopholes, it is now too late. The IRS is tightening up their CWA requirements in order to close these loopholes. Most of the changes address the degree of detail that you will now need to provide with regard to your budget and expenses. While some of these changes were put in place earlier this year, others were instituted only recently. In neither event were these changes accompanied by any official announcement or warning. However, we have now been able to confirm the following new IRS requirements:

1) The IRS now requires that all individual performers be listed on a CWA request. For instance, if an individual who performs with back-up musicians, dancers, etc. wants to obtain a CWA, all of the back-up performers must now be included on the request. (In the past, an individual artist could apply for a CWA without having to list the accompanying performers being paid by that artist.)

2) Because the IRS is scrutinizing artist budgets much more closely than in the past, the IRS is now requiring as much detail as possible when you submit your budget with your CWA. Otherwise, the IRS will contact you to request more detail after you’ve submitted your budget. (These requests can result in much communication back-and-forth between you and the IRS, causing unnecessary delay in the process!) Examples of such detail include…

> Expenses for non-performing personnel (e.g., tour manager, technical crew, etc.): The IRS is now asking for the names of all non-performing personnel touring with the artist, the amount each non-performing individual is earning on the tour, as well as each non-performing individual’s country of citizenship and residence. If any of the non-performing personnel are non-US residents, 30% withholding will be required on the payments to these individuals UNLESS the individual a) resides in a country with which the U.S. has a tax treaty; and b) submits a valid IRS Form 8233 to the IRS to claim an exemption from withholding. NOTE: For the Form 8233 to be valid, it must include the individual’s U.S. tax identification number. If the individual does not have a U.S. tax ID number (i.e., this is his or her first time working in the U.S.), there can be no exemption from withholding. If you are the withholding agent, the IRS will require you to show proof that taxes were withheld when you submit your final accounting.

***Because IRS Form 8233 works differently for performing artists and non-performing artists, here’s a quick review regarding IRS Form 8233: This form is used to claim an exemption from withholding on compensation earned by a foreign independent contractor. The “exemption” is, in most cases, based on a tax treaty. Most, but not all, treaties treat compensation earned by performing artists differently than that earned by non-performing artists. These treaties put a cap on the amount an individual performing artist may earn tax-free in the U.S. For example, the U.S./U.K. tax treaty permits a performing artist who is a resident of the U.K. to earn up to $20,000 tax free. However, if an artist earns more than $20,000, the entire amount earned is subject to U.S. tax.

 As discussed in detail on the Artists from Abroad website (www.artistsfromabroad.org), the exemption available to performing artists is usually inapplicable at the withholding stage. It would apply only to claim a refund from withholding when the artist files his or her US tax refund. (This is because it’s impossible for the person paying the performing artist to know whether or not the performer will be over or under the cap at the end of the tax year.) By contrast, tax treaties rarely impose the type of cap referenced above on independent contractors who are non-performing artists. If a non-performing artist otherwise qualifies for an exemption, the non-performer’s entire U.S. income is usually exempt from tax in the U.S. For this reason, these individuals may submit Form 8233 at the withholding stage to claim the treaty exemption from tax and avoid any withholding.

>All Sources Of Income: If any of the performance contracts provide for contingent fees, box office splits, or back-end fees (i.e., a bonus or percentage of the gross ticket sales after a certain number of tickets are sold), the IRS will expect these additional fees to be included in your budget. Claiming that “we never make the overages” or "its impossible to predict" usually will not be accepted by the IRS. Also, be sure to include estimated figures for merchandising (e.g., t-shirt sales, CD/DVD sales, etc.) as well as for sponsorship or tour support, if any.


>Hotel Accommodations: You will not only have to show your costs for hotel or other accommodations, but you will have to show how those numbers were calculated. How many rooms? For which nights on the tour? For those of you hoping that, based on past experience, the IRS won’t take the time to go through each contract to count how many nights/rooms of hotel are being provided by the venues – au contraire! This has now become their standard operating procedure.


>Travel expenses: Again – detail, detail, detail. How many flights are included in your budgeted cost? From and to which cities is the tour party flying? If a number is budgeted for a motorcoach, on what legs of the tour will it be used, and how is the cost calculated (i.e., by the mile or by the day)?


>Backline: If there is a significant number in the budget for backline, what does this number cover? Note that while you can deduct rentals, you cannot deduct purchases. Also, note that if the performance contract provides that “house sound and lights will be provided,” the IRS will not let the artist deduct any additional costs for sound and lights provided by the artist. On several occasions I’ve argued with the IRS that house sound and lights are sometimes inadequate for our client’s needs and sometimes we don't know this until we arrive at the venue. The IRS does not accept this argument. Thus, if you know in advance that the artist is not going to use house sound and/or lights, or will be providing additional sound and/or lights at the artist's expense, this needs to be reflected in the engagement contract.


3) If there is a loss on the tour, the IRS now requires a letter to the IRS, signed by the artist, stating who is absorbing the loss. (Is the artist bearing the loss? The artist's record company? Perhaps the loss is being made up on the Canadian portion of the tour?) The artist must provide an explanation.


4) If you are an agent, manager, promoter, producer, or some other third party who is requesting a CWA on behalf of an artist, and you’ve submitted a Form 8821 authorizing you to communicate with the IRS on behalf of the artist, you are no longer permitted to sign the cover letter accompanying the CWA request. The IRS now requires that such letter be signed by each artist requesting a CWA. The reason is that the cover letter must include language certifying “under penalties of perjury” that the information submitted in the request is true and accurate. (see the instructions for requesting a CWA, IRS Form 13930.) The artist must also now sign the CWA itself. 


5) As in the past, an artist must be “in compliance” with the IRS to qualify for a CWA. This means that each individual artist must file a tax return for every year in which he or she worked in the U.S., even if no tax was due. While the IRS used to look back no more than three years or so to determine if an artist was compliant in filing U.S. tax returns, the IRS is now looking back as many as six or seven years to see if past returns have been filed!

6) With regard to per diems, the new IRS procedures allow artists to claim only 50% of their per diem as a deduction – the other 50% is considered income to the artists. Lest you think you can simply double the amount of the per diem for CWA purposes, the amount of per diem is limited by the current government per diem rate, which varies from city to city. The current rates may be found here: http://www.gsa.gov/portal/category/21287. For instance, the current meal per diem rate for Manhattan is $71. Therefore, the most that you can deduct as a per diem expense per individual is $35.50. Anything above that amount will be considered income to the person receiving the per diem and cannot be deducted from gross income. 


7) If an artist has performed in the U.S. earlier in the calendar year, the IRS is now requiring that the artist provide each date and venue for the earlier performances, the gross revenues for each date, and any taxes that were withheld. The IRS will add the gross income from the earlier performances to the income on the upcoming U.S. tour – and also take into consideration any withholding from the earlier performances – to calculate the amount of withholding necessary to cover the artist’s taxes.

Here are a few additional reminders and tips:

• The IRS has designated a new mailing address for CWA requests. It is:

Central Withholding Agreement Program

Internal Revenue Service

3651 S. I H 35, Stop 4302 AUSC

Austin, TX 78741

To avoid delays, do NOT send your CWA request to the old address in Nevada!

• Be sure to respond to any IRS questions about your CWA request in a timely manner! If the IRS asks for additional information, and they don’t hear back from you within a certain time frame, your CWA request may be denied, and letters will be sent to each venue on your artist’s tour directing the venue to withholding 30% of the gross performance fee.

• Regardless of your level of frustration, always be nice when dealing with the IRS! They have all of the power, and you have none. Remember that the IRS regards the CWA as a privilege, not a right, and if your request is denied, there is no appeal process. Besides, in my experience, it’s usually much easier to give the IRS what they are asking for rather than arguing with them about why they don’t need it, why the information and paperwork is burdensome, and why foreign artists are no longer willing to tour the U.S. Having said that, I must also note that all of the IRS agents I have dealt with in the CWA division have been friendly and helpful when presented with calm and reasonable questions and comments and you express a willingness to comply. Also, bear in mind that IRS agents can and will be inconsistent in their application of the rules for obtaining a CWA. This is partly because they are themselves trying to figure out the new rules and requirements.

• Bookmark the following websites for future reference:

www.Artistsfromabroad.org. This website, sponsored by the League of American Orchestras and the Association of Performing Arts Presenters, is regularly updated by FTM Arts Law. The site includes a multitude of information on visa and tax issues for foreign artists, including what artists are eligible for a W-8BEN tax exemption, and how to obtain a CWA.

www.FTMArtsLaw-pc.com. Our website contains additional free information and resources that simplify the legal issues involved in U.S. tours of foreign artists, including a foreign artist taxation memorandum, which summarizes the information contained in the Artists from Abroad website.


www.IRS.gov. The Internal Revenue Service's website is a valuable source of information that includes complete tax treaties, and forms and publications that offer guidance as to both withholding and taxation. Publications relevant to taxation of foreign guest artists are Publication 515 ("Withholding of Tax on Nonresident Aliens and Foreign Entities"); Publication 519 ("U.S. Tax Guide for Aliens") and Publication 901 ("U.S. Tax Treaties").