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").


IRS Steps Up Enforcement of Foreign Artist Tax Withholding!

FTM Arts Law is receiving an increasing number of reports from artists, managers, agents and presenters that the Internal Revenue Service is contacting presenters and venues where non-resident foreign artists are scheduled to perform and directing them to withhold 30% of the artists’ gross fee.

The IRS is sending out letters called Directed Withholding Letters (“DWLs”) and they have serious implications. Unless a foreign artist qualifies for an exemption from tax withholding, or enters into a Central Withholding Agreement (“CWA”) with the IRS, then 30% of the artist’s gross fee must be withheld. (Note that not all exemptions from taxation entitle an artist to an exemption from withholding!) Those who represent or present foreign artists in the U.S. and who continue to choose not to address tax issues are taking an enormous risk.

Why is this happening? How is this happening?

Until recently, the IRS did not actively pursue non-resident artists for U.S. taxes. This led to lax attention to, and even complete disregard of, applicable tax obligations. However, the IRS is now using the internet to search for, find, and aggressively pursue nonresident artists who will be touring the U.S. The IRS finds the touring non-resident artist on the internet and then sends out DWLs to all presenters and venues on that artist’s U.S. tour. Unfortunately, in many cases, these letters are being sent to presenters and venues much too late for the artist to obtain a Central Withholding Agreement and, therefore, the artist is stuck with the 30% withholding—even where the artist has previously been able to avoid withholding by providing presenters and venues with a W-8BEN!

To make matters worse...

To make matters worse, it appears as if the IRS very recently has revised its rules for obtaining a CWA and now is examining CWA requests much more closely.

Among the new procedures:

• Budgets are being more closely scrutinized, and artists are required to provide much more detail than in the past. For instance, if an artist's budget shows a cost of $10,000 for airfares, the IRS will require detailed information as to how the $10,000 was computed, i.e., exactly how many airfares are included, what is the origination and destination point of each ticket, etc. If a budget includes a cost of $5,000 for hotel, the IRS will require information on how many rooms this figure covers, and in what cities.

• Even more importantly, the IRS now requires an artist requesting a CWA to identify, by name and country of residence, each member of the artist’s touring party, including each performer who will be performing with the artist. Each performer touring with the artist must be in compliance with their U.S. tax returns. If any performer is not in compliance with their U.S. tax returns, the IRS will direct that 30% of that person's income must be withheld for U.S. taxes.

Its time to abandon long-cherished myths!

The IRS's history of non-enforcement led many artists, agents, managers and presenters into a false sense of security that there were exemptions, actions, or forms that would automatically exempt an artist from withholding or tax – as well as exempt the presenter from the withholding requirements. While these beliefs may have worked in the days of a less-vigilant IRS, this is no longer the case.

Here are the two most common myths:

• The most enduring misconception is that the W-8BEN form is an easy cure-all for U.S. tax issues, including tax withholding. FTM Arts Law is being contacted more and more frequently by frustrated managers and agents who are accustomed to avoiding all withholding by issuing a W-8BEN form to each venue or presenter. Many venues and presenters – particularly those receiving DWLs – will no longer accept this form to exempt the artist from tax withholding. In fact, the W-8BEN is applicable only in very limited circumstances. For a W-8BEN to be applicable, the foreign group or company cannot be owned by the artists themselves. This excludes almost all quartets, bands, or any ensemble where the artists in any way split the profits. In most situations, such groups, even if they are legitimately incorporated entities in their home countries, must obtain a CWA, or the presenters will be required to withhold 30%. And a W-8BEN is never applicable for an individual artist, even if he/she has formed his/her own corporation. Which brings us to...

• The second most popular misconception, which is perpetuated by U.S. accountants unfamiliar with taxation issues for nonresidents, is that a foreign artist may avoid U.S. taxation and withholding altogether by forming a U.S. corporation. As an example, we currently are working to resolve the tax quagmires of several foreign artists who had set up U.S. corporations through which all of their U.S. tour income and expenses would flow. In most cases, this plan will NOT avoid U.S. taxes – it will only cause the artist to incur late filing and payment penalties, interest, and unnecessary accountant fees. Most tax treaties provide that income paid to a foreign performing artist through a corporation (U.S. or otherwise) is attributable to the artist individually, and not to the corporation. Our clients - who believed they were in compliance with U.S. tax law under their accountants' plan - are now paying the consequences. One artist in particular has been advised by the IRS that he must file past individual U.S. tax returns going back seven years before the artist will be eligible for a CWA!

Forewarned is Forearmed!

Don't panic! Be proactive! There are several steps that foreign artists and their managers and agents can take toward compliance with U.S. tax law:

1). Be realistic. If the presenters or venues on a nonresident artist’s tour have received DWLs,and it’s too late to obtain a CWA, accept the fact that the artist will be subject to 30% withholding. When the artist files his U.S. tax return, he may claim deductions and exemptions to offset income, or claim the benefits of a tax treaty, and likely receive a refund of part or all of the withheld tax.

2) Plan ahead. Foreign artists and their agents and managers must address tax planning (along with visas and work authorization!) when planning U.S. tour, not after. Determine at the outset if the artist is eligible for a CWA, and if not, what steps must be taken to make the artist eligible (e.g., filing past U.S. tax returns.) If applicable, factor taxes into the engagement fees and budget. If these issues are not addressed at the planning stage, the IRS's current enforcement efforts can impose an insurmountable barrier to a successful U.S. tour.

3) Educate yourself:

• There is a wealth of information on 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. However, if you find the volume of information on this site a bit overwhelming, you might first…

• Go to 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. (Its also a good resource to print out and provide to anyone who thinks you're making this stuff up!)

• Go to www.IRS.gov. The Internal Revenue Service's website, though not known for its depth of wit and good humor, 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").

4) Don't be afraid to ask for help. There are times when you can self medicate and other times when you really need to see a doctor before you get worse!

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

____________________________________________________

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.