Contractual Effrontery • Not Paying Artists is a Crime! • How A Government Shutdown Will Impact US Artist Visas
LAW & DISORDER
Performing Arts Division
September 27, 2023
Legal Issue of the Month: Contractual Effrontery
Recently, I was contacted by an agent regarding a new artist that was joining his roster. In response to receiving a copy of the agent’s managerial contract, the artist responded with a terse missive that they found the contract to be “unfriendly.” The artist elaborated that they were expecting any contract to be a simple confirmation that the parties would be working in a mutual spirit of collaboration and partnership and not, as the artist further opined, a “harshly written” and “aggressive” formal document with requirements, restrictions, terms, and conditions. The agent asked me to take a look at the contract.
I took a look. Whilst not a model of whimsy, the contract contained the ordinary dry terms one would expect to find in an Artist/Agent contract: how commissions are calculated and paid; the agent’s booking territory and exclusivity rights; termination provisions; etc. Was it peppered with frippery and bagatelles? No. But neither did it hurl insults at the artist nor propose indentured servitude. In short, there was nothing to find “unfriendly” or aggressive.
Make no mistake, I find it commendable that the artist actually read the contract. Indeed, given the fact that most in our industry avoid words and contracts as if reading anything that cannot fit on a post-it note will send their eyeballs exploding out their elbows, I was delighted. What is discouraging is that the artist took the contract as a personal affront rather than what it was: the agent’s proposal of the terms, definitions, and conditions that would define the “collaboration and partnership” between them. It was an invitation for the artist to respond with their own questions, clarifications, and proposals for alternative terms and conditions—though, in this case, the artist not wanting any terms or conditions of any kind presents are far more existential crisis.
Contrary to the artist’s dismay, the very core of any successful collaboration or partnership is making sure that all the parties are, in fact, working with the same playbook at the outset. And that’s the whole, entire, and sole point of a contract: that before any work is done, engagements booked, or music composed, the parties have exhausted every effort to root out unexpressed concerns and fears, unclog misconstrued conversations, and extract hidden expectations from the crevices of each other’s unspoken assumptions.
Whenever I am asked to review a contract, the first thing I do is ask my client to express their own understanding of what has already been discussed, outlined, or orally agreed upon. Then, I can draw back the covers to see how close or far apart the parties actually are and lead them through further conversations, clarifications, and discussions. They may or may not come be able to come to a consensus on every issue, but knowing what each party is and is not willing to agree to is critical information in assessing whether or not to proceed with the relationship.
Discovering that the other party has expectations and assumptions that are contrary to your own makes them neither nefarious nor contemptible. However, if at the outset any reasonable proposal or question results in the other party clutching their pearls and gasping at such brazen impertinence, chances are you’re going to be dealing with that throughout the relationship—and our industry has more than enough naturally occurring drama on its own without inviting it into your office. I’d politely close the door.
Dear Law and Disorder: Actual questions we get asked and the answers people actually don’t want
"Not Paying an Artist is a Crime!”
Dear Law & Disorder:
Our company got a bad check from a non-profit venue for a performance we did. We called them and they sent us a new check, but that bounced, too. Now they won’t return our phone calls. Is there anything we can do?
I once had an artistic director of a dysfunctional non-profit tell me that, although they were unable to pay the money owed to an artist, the artist should be satisfied having already been paid ten-fold in the goodwill and joy they brought to the audience. Sadly, I have yet to find landlords and grocery stories willing to accept payment in goodwill and joy.
Almost every state has a statute that allows a person who receives a bad check to sue the issuer of the check and not only receive two to three times the value of the check, but recover attorneys’ fees and court costs as well. In addition to suing the non-profit itself, most states will also allow you to sue the individual who signed the check even if they were acting as an officer, employee, board member, or volunteer of the non-profit. While it’s true that suing an organization that has no money is often a waste of your own time and money, it’s also a crime in most states to write a bad check. You will want to do some research on the laws in your particular state.
Regardless, your first step should never be to file a lawsuit or run to the police. Besides, both civil and criminal laws require some form of “intent” on the part of the issuer of the check. There is no liability for inadvertently writing a bad check or in situations where the check merely crossed with the available funds. If the mismanagement of a non-profit were a crime, most of the 2023/2024 season would be presented at the Rikers Island Centre for the Arts. If the non-profit is not returning your calls, try other forms of communication such as emails or even formal letters. If necessary, send letters to the Chairman of the Board or to individual board members reminding them of their potential exposure to personal as well as criminal liability. If they continue to ignore you or fail to make payment, then at least you will have written proof of their intent not to honour the check and then you can consider whether to contact a local attorney, file a claim in small claims court, or contact the local prosecutor’s office in the city or town where the venue is located. Regardless, do not, under any circumstances, post anything on social media in an effort to shame them into paying you. Whilst public shaming worked for the Puritans, it will backfire on you for a number of reasons.
Artist Visa News and Nausea
• How A Government Shutdown Will Impact US Artist Visas
In the fantastically remote and implausible event that the US Congress cannot cast aside the ponderous chains of party and ideological differences to sip from the communal grail of public service, thereby discarding their own personal goals and aspirations to rapturously ascend the alchemical mountain to the prima materia of the common good, and in so doing pass the spending bills necessary to keep the government open beyond midnight on October 1, 2023, then certain US government agencies will cease operations.
As USCIS is mostly funded by petition filing fees, they will continue to review visa petitions—albeit processing may slow due to outside contractors not being paid to lose petitions in the mailroom and misaddress envelopes. However, depending on how long the shutdown lasts, certain US Consulates around the world could experience delays in being able to process visa applications or cease all but emergency operations. If the last time this happened is any indication, the consulates will likely not plunge into darkness, but, rather, suffer a slow dimming. A short shutdown may have no impact at all, but the longer it lasts the more there may be residual backlogs and ongoing delays.
So, notwithstanding a highly functioning democracy such as ours every having to deal with such issues, much less owing a contrite apology to King George III, one may want to light some candles and plan for contingencies nonetheless.
• New Edition of I-129 Form
Starting November 1, 2023, USCIS will only accept the new 05/31/23 edition of the I-129 Form. They have made no changes of any kind to the form itself---just the date on the bottom. Whilst some may consider this pointless, I personally have found myself enjoying new depths of restful slumber cradled in the knowledge that the Department of Homeland Security has been tireless in its efforts to thwart malicious hordes of French dance troupes from breaching our borders using date compromised forms.
Until November 1, 2023, you can continue to submit the old 11/02/22 edition, but you might as well start using the new edition now. You can find the edition date at the bottom of the page on the form and instructions. As a general rule, if you always make a habit of always downloading the I-129 form directly from the USCIS website whenever you prepare a petition, you will always have the most current edition.
• Using Consultation Letters From Peer Groups Rather Than Unions
We have recently seen an uptick in USCIS issuing a Request for Evidence (RFE) in response to petitions in which the Petitioner has provided a consultation letter from an artist peer group (such as Opera America, Fractured Atlas, or the League of American Orchestras) as opposed to the applicable performing arts labour union (such as AFM, AGMA, or AGVA). Whilst the applicable USCIS regulations allow for consultation letters to come from unions OR peer groups, not all Examiners are able to find this on their Lil’ Examiner Spin-a-Statute pull toy. As a result, the petition will be put on hold until you can either present the Examiner with the citation to the regulation or get a union consultation letter. Depending upon whether you paid for standard or premium processing, this could cause a delay of 15 days to 3 months. As, in my experience, the most inane RFEs are only ever issued in response to petitions that are also the most time sensitive, you’re better off spending the extra money to get the union letter at the outset. The $300 consultation fee you try to save today could cost the cancellation you face without a visa being approved in time. As, in my experience, the most inane RFEs are only ever issued in response to petitions that are also the most time sensitive, in instances where you are on a short time you’re better off spending the extra money to get the union letter at the outset. The $300 consultation fee you try to save today could cost the cancellation you face without a visa being approved in time.
• Current USCIS Service Centre Processing Times:
There have been signs of slower processing times at the Vermont Service Center, though still faster than the oozing pace maintained at The California Service Center.
Vermont Service Centre: Standard processing: 8 – 10 weeks
Premium processing: 9 – 10 days
California Service Centre: Standard Processing 3 – 4 months
Premium Processing 13 – 14 days
Deep Thoughts…
““If the wise elders of the village don’t teach the children, the village idiots will certainly do so.”
African Proverb
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THE OFFICIAL LEGALESE:
THIS IS NOT LEGAL ADVICE!
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.