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.
Thursday, October 29, 2015
Thursday, October 15, 2015
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.
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.
Labels:
Arts Management,
Contracts,
Employment
Thursday, October 1, 2015
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!
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