What Is Considered “Commercial Use?”• What Do Publishers Do? • USCIS Postpones Decision on Proposed Petition Fee Increases!
LAW & DISORDER
Performing Arts Division
July 20, 2023
Legal Issue of the Month: "What Constitutes “Commercial Use?”
In reviewing an engagement contract the other day, I noted that in exchange for the engagement fee, the presenter also wanted the right to record the artist’s performance, make it available for free streaming, and upload it to YouTube. They emphasized that this was a “non-commercial” use because they were a non-profit, it was part of their “mission” to make performances free and accessible, and that they would not be charging or earning any money from the recording.
This is like paying to rent an Airbnb for a week, then claiming this includes the right to extend your stay indefinitely for free so long as you only use the person’s home to foster stray cats.
Particularly prevalent from non-profit arts institutions is the frequent hiccup of understanding that anything and everything they do in the service of their mission is by its very nature “non-commercial” provided they do not charge, sell, or directly earn money from such use. This includes using recordings, images, or other copyrighted materials in conjunction for self-determined “educational purposes.” To be fair, artists, too, are just as guilty of such perception misfires in believing that it is “fair use” to use copyrighted materials for any use which they believe is “fair” to themselves.
“Commercial use” is in fact, any use of copyrighted material—even for free—that benefits the business purposes and interests of the user—such as promoting performances, selling tickets, soliciting donations, advertising, marketing, publicity, or furthering a benevolent and commendable mission. By contrast, a “non-commercial” use, is something that is done privately and not made available to the public for any purpose, such as creating a personal and private archive of recordings as a source of future study, inspiration, and reflection, or perhaps to distract your uncle at Thanksgiving. In other words, if its not for “personal use”, then its “commercial use.”
When a non-profit organizes a gala or donor event, it pays for the caterer, the venue, and even the florist—typically all up front, or, at least, with a deposit. It is neither presumed nor taken for granted that these are anything other than “goods and services” that have value and that, even when donated, would otherwise have to be paid for. Why is this different for artists? (I would pose the same question to presenters/venues who will pay a deposit to rent a concert hall, but refuse to pay a deposit on an engagement fee, but I’ll save that rant for later time.) An artist’s performance, name, and image are all marketable commodities. Whether it’s for the benefit of music education or stray cats, the presumption that artists must inherently relinquish their “goods and services” for a higher purpose suggests that an artist’s services have less value than a caterer or florist. Just because it serves a benevolent “mission” does not negate the fact that artists need to eat and pay rent.
So, if your strategic plan necessitates recording (“copying”) an artist’s performance and using it for the benefit of your organization, that either needs to be factored into the engagement fee or, at least, have the courtesy to offer the artist a tax donation and a tote bag.
Dear Law and Disorder: Actual questions we get asked and the answers people actually don’t want
"What’s In A Name?” "
Dear Law & Disorder:
I am a composer. Many of my colleagues are suggesting that I find a publisher to help sell my music rather than handle all of that myself, as I have been doing so far. What does a publisher actually do?
Think of a “publisher” as a “manager” of copyrighted material. Just as an artist manager is responsible for managing a performing artist’s career— finding new opportunities for engagements, concerts, and performances; advising on which offers to accept; selecting and supervising booking agents, publicists, and other members of the artists “team;” negotiating projects; and talking them down from existential precipices—"publishing” is the management of all the ways a copyrighted work can earn money for the author. In the case of composers and songwriters, this means promoting music to others to perform and/or record it; marketing the music for soundtracks and other licensable uses; negotiating requests for rights and licenses; collecting royalties and license fees; making parts and scores available for rent; and negotiating commissions for new works.
However, whether it’s a Publisher, an Artist Manager, a Record Label, or a Publicist, titles are self-defined and, often, just made up to serve both ego and marketing purposes—but mostly ego. Remember, there is no such thing as "standard" in the arts and entertainment industry. There is no Royal College of Heralds presiding over an official list of titles and job descriptions. An Assistant Director may actually be the Director’s Assistant; The Vice President of Artist Management may simply be someone who manages to books airline tickets and ensure that booking contracts are signed and ignored; A Record Producer may merely be someone with access to their roommate’s software; and even the Director of Marketing and Publicity may be uncloaked as the intern with a communications degree.
I have seen artists sign with what they believed to be a record label, only to find later that, aside from the “privilege” of having someone’s logo on their recording, the artist was responsible for paying extra for everything from manufacturing CDs to cover art to creating a press release. Similarly, I’ve seen composers and songwriters sign with a “Publisher” who did nothing but wait for the composer to find people to perform their music and then send out the parts and scores.
So, when engaging anyone to provide services it's essential to look beyond their title. Check out their background, speak to others they have worked with, talk to colleagues, and make sure the contract spells out the exact services they will be performing. While no one can ever guarantee that the fruits of their labours will ensure the results you want (and run away if they ever do make that promise!), they can at least specify the exact duties and services you can expect. Otherwise, the “Pioneer in the Industry” you just hired as your consultant may only recently have discovered how to set up a Facebook page.
Of course, as a legend and an icon in the industry myself, be sure to read an article in Classical Music magazine wherein I expound upon "the evolution of arts sector contracts post-covid and talk about the most common issues this entertainment industry lawyer resolves on a daily basis.”
Artist Visa News and Nausea
• USCIS Postpones Decision on Proposed Petition Fee Increases
On July 12, 2023, USCIS announced that it was delaying its decision on whether to implement new filing fees, rules, and restrictions until March 2024. As you may recall from your nightmares, their proposals included more than tripling the current artist visa filing fees, cap the number of beneficiaries for group petitions, and lengthen the time USCIS has to respond to petitions filed via Premium Processing Service. In response, USCIS was inundated with negative comments and objections from throughout the arts and entertainment field—not just nationally, but internationally as well. Opposition efforts were not only championed by the Performing Arts Visa Working Group (PAVWG), an ad hoc coalition of national and international performing arts organizations led by the actual arts-advocacy pioneers Heather Noonan and Najean Lee at the League of American Orchestras, but Congressman Maxwell Alejandro Frost (D-FL) successfully lead his Democratic colleagues in reaching out to USCIS to oppose the proposals.
While it is too soon to declare a victory, the delay indicates that our concerns and feedback were significant enough for them to slow down the process and consider how, or even whether, to proceed. Ultimately, they could implement the original proposals, consider less draconian alternatives, or abandon them completely.
Here are links for additional information:
Press Release from Congressman Frost
• What Is A Violin and What Makes It Go?
I have made no secret that I delight in sharing some of the inane Requests for Evidence (RFE) I have received from USCIS over the years. From asking whether a conductor performs a critical role when conducting an orchestra to asking for additional documentation that The New York Times was a major publication. However, whist USCIS is notoriously unpredictable and inconsistent in most areas, it constantly displays a robust proficiency in being able top reach into fathomless pits of ineptitude to produce feats of unimaginable obtusity.
A month ago, I was asked to respond to an RFE an organization received for an O-1 visa petition they had filed on behalf of a classical violinist—who, incidentally, had previously been approved for O-1 visas many times over the years. Whilst the Petition itself was replete with articles, programmes, awards, and other materials about the artist’s achievements as a violinist, on the I-129 petition form itself, the Petitioner had officially listed the artist’s job title as “musician.” In response, USCIS issued an RFE asking for “a specific job title for the Beneficiary, along with an explanation of the Beneficiary’s specific duties within his field” as well as an explanation of “the specific skills required to perform the Beneficiary’s duties” and claiming that the Petitioner failed to “demonstrate that the Beneficiary will provide an integral function or perform a critical role.
Without the aid of hand puppets or a Fisher Price Touch-n-Tickle Light Up Piano, how does one respond to this?
We began by copying relevant pages from the New Grove Dictionary of Music and Musicians. Then, we turned to academic articles on the history of the violin. In the interest of completeness, we further provided descriptions and documentation on how violins are constructed, including drawings. We would have been remiss in not also providing instructional materials on various bowing and performance techniques, as well as biographies of other famous violinists. In all, the RFE response contained over 100 pages of materials. Was it an utter waste of time? Yes. Was I being childish and petulant? Absolutely. Did this serve any purpose other than to make a point that I knew would be lost upon the USCIS examiner? Of course. Was the petition approved 2 days after the RFE response was submitted? Yes.
There is no moral to this, except, perhaps, never to presume that filing artist visas petitions is anything other than trying to explain mathematics to a deaf rabbit.
• Current USCIS Service Centre Processing Times:
Vermont Service Centre: Standard processing: 6 – 8 weeks
Premium processing: 9 – 10 days
California Service Centre: Standard Processing: 3 – 4 months!
Premium Processing: 13 – 14 days
If some of you have filed petitions at the California Service Centre and receive a notice that your petition is being transferred to another service centre DO NOT PANIC. To deal with backlogs, USCIS is randomly transferring petitions to other service centres.
Deep Thoughts…
“I never get enough sleep. I stay up late because I’m “night guy.” “Night guy” wants to stay up late. “What about getting up after five hours of sleep?” Oh, that’s morning guy’s problem."
Jerry Seinfeld
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The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty or threatening email to someone, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about.