Cancellation Considerations • Borrowing Sheet Music • Artist Visa News & Nausea
LAW & DISORDER
Performing Arts Division
December 14, 2023
Legal Issue of the Month: Cancellation Considerations
Several cancellation scenarios dropped upon my desk recently. In each, despite engagements contracts having only been partially signed or never issued at all, and issues such as travel and housing not yet fully finalized, the parties skipped down the yellow brick road of advancing, servicing, planning, and marketing. They were far down that road when the presenters decided to cancel. Though making a point to emphasize that each of cancelling presenters were guilty to one degree or another of being “always a problem,” or “never have their act together,” or “have a long history of needing to be chased for contracts and payments,” the managers/agents expressed shock, outrage, and betrayal given that they had proceeded in good faith lost in the warmth of the blissful bosom of psychopathic denial called “trust.” Ultimately, they wanted to know if they had an “enforceable” contract, even if it was just a series or texts or emails. “Why?” I asked rhetorically. “So that we can force them to pay for the engagement” they said indignantly. “Sigh” I wearily replied.
Even copiously delineated contracts printed on vellum and signed with ribbons and sealing wax are not self-enforcing. A contract is merely a coupon redeemable for legal action. If a presenter breaches a contract by cancelling an engagement and refuses all reasonable entreaties to honour the agreement, the only way to “enforce” the contract is through filing a lawsuit. Whether or not to redeem that coupon, however, depends on more than whether you have legal grounds to win.
1. Is it worth it?
Lawsuits are expensive and time consuming. Only a trial lawyer will argue that it makes sense to spend $10,000 to pursue the cancellation of a $7000 engagement fee.
2. Even if you win a judgement, will you ever see any money?
Winning a lawsuit does not mean the judge will hand you a check. Rather, you are a handed a judgement declaring you the winner and the amount you are owed, then patted on the head and sent on your way basking smugly in the triumph of having proven your point. However, unless the other party pays willingly, the judgment merely gives you the right to go back into court to collect the money you are owed by imposing liens on bank accounts or levies on box office receipts. At some point you will either give up from emotional and financial exhaustion, or the other party will merely waive the magic wand of bankruptcy and your judgement becomes void. In other words, winning a judgement against a dysfunctional non-profit with a depleted endowment and five Executive Directors over the course of three years is not going to get you paid.
3. What is really at stake?
Is it just about the money? Pride? Standing up to a bully? Being perceived as weak if you don’t stand your ground? Having the legal right to enforce an agreement is often outweighed by the practical interest of not doing so. You do not want to win a battle but lose the war. So, step back and look at the situation in its entirety. Is this dispute worth potentially losing a relationship that you will need in the future? What circumstances actually precipitated the cancellation? While the presenter may have not have had the legal right to cancel, was the cancellation nonetheless warranted? Regardless of the terms of a contract, it’s one thing to cancel an engagement merely because an artist bruised the Music Director’s delicate ego at a donor event, but quite another to cancel because the artist dropped their trousers during rehearsal and told the Music Director to “accelerando this you tone deaf anal wart!” Whilst you may have the legal right to sue in either scenario, your own reputation and professional credibility needs to be taken into account as well.
4. Are there other solutions?
In my experience, regardless how outrageous a party may have acted, there are no words or language that will induce an inherently maniacal narcissist to stare into the light of self-reflection and proclaim: “Thank you for pointing out the error of my actions. I now understand that I was acting inappropriately, most humbly apologize, and, of course, will pay the full amount.” Take a day or two for tempers to calm down, then reach out. If possible, talk rather than spit texts or emails at one another with threats of legal action, accusations of ethical improprieties, or taunts of ruining reputations. Avoid inflammatory language. Can the date be rebooked? Are you willing to accept less in lieu of nothing at all? Do some research. It’s not at all uncommon for the reason given for cancellation to be based on something else entirely. Are there other parties or colleagues you can reach out to who could intercede or give you insight into how the situation might be resolved? Oftentimes, the conversation will need to begin with admitting you or your artist was in the wrong, even if you were not, and expressing sympathy as opposed to outrage. Acknowledging the other party was right, even hissed blithely through gritted teeth and clenched loins, can give them the disarming space they need to be receptive to solutions...particularly if, in the end, you want them to pay you and can move beyond who was in the wrong.
As I have long shouted into the abyss, the point of a written contract is not to ensure nothing can go wrong or to have something to “enforce,” but, rather, to use as an opportunity to unveil and address any misassumptions or unexpressed concerns between the parties and then either resolve them at the outset or make an intelligently informed decision to proceed with all risks and uncertainties identified and willingly accepted. It does no good to book first and contract later as doing so forgoes the chance to stop a train in the tracks before it hits you. However, if you are going to continue to work with a presenter regardless of how many times they have cancelled or refused to pay in the past, there is no contract that will push you off the tracks.
Dear Law and Disorder: Actual questions we get asked and the answers people actually don’t want
"Borrowing Sheet Music”
Dear Law & Disorder:
If a non-profit group presents a concert and charges admission does it have performance rights if they have an ASCAP license but have not purchased the sheet music but instead “borrowed” the sheet music from another owner of the music?
Like asking if its permissible to steal a car so long as you filled it with gas before returning it, those are unrelated issues. However, in this case, you may be driving on the correct side of the road.
A copyright is literally what it says: the right to make “copies” of a copywritten work--which includes not just the right to make physical copies, but to use the work in any manner, means, or media. With regard to music, purchasing the sheet music does not give you the right either to make copies of the sheet music or to perform the music. However, so long as you do not make copies of the sheet music, then simply borrowing it from the person who actually purchased it is fine. This is no different from borrowing a book from a friend or from the library.
The right to perform a concert of the music written on the sheet music is a different matter. That requires a performing rights license. Such a license can be obtained from the composer, the composer’s publisher, or one of the performing rights organizations (PROs) of which the composer may be a member. Whilst ASCAP is one such PRO, there are others, including BMI, SESAC, Global Music Rights, and the Mechanical Licensing Collective. As such, an ASCAP license may not be sufficient if your concert will include music by different composers belonging to different PROs, in which case you will need to obtain performance licenses from more than one PRO. You will also need to obtain additional licenses if you plan to record the music or if the concert will include visual elements such as images or videos.
Licenses and permissions are always needed regardless of whether or not tickets are sold, artists are paid, or the audience consists solely of starving orphans and abandoned cats. However, provided the person who loaned you the sheet music paid for it, and provided the composer is a member of ASCAP, and you have no plans other than to perform the music as written, then you are good to drive merrily down the road to a hopefully engaging, sold-out concert.
Artist Visa News & Nausea
• Update on USCIS Change to Where O and P Petitions Are Filed
As an important reminder, as of December 1, 2023 O and P petitions are no longer filed with either the Vermont or California Service Centers. Instead, all O and P petitions must be sent to the Texas Service Center at one of the following two addresses:
Standard Processing: Premium Processing:
USCIS Texas Service Center USCIS Texas Service Center
Attn: I-129 Attn: I-129 Premium Processing
6046 N Belt Line Rd. STE 115 6046 N Belt Line Rd. STE 907
Irving, TX 75038-0018 Irving, TX 75-38-0022
After December 1, 2023, anything sent directly to the Vermont or California Service Centers will be rejected and returned.
Based on reports and experiences thus far, it appears we can confirm that the Texas Service Center is, in fact, merely intaking petitions and then forwarding them to either Vermont or California, as appropriate, for actual adjudication. Receipt notices are being issued by the Texas Service Center with case numbers beginning with “SRC”, which indicates the Texas Service Center, but approval notices are coming directly from Vermont or California.
The question before us now, of course, is how an agency whose incompetence always exceeds expectations will cope with the additional complexity of designating a separate service center to ensure that all forms are signed, correct fees paid, and documents provided and then scan and send all materials to the correct jurisdictional service center with any modicum of accuracy or consistency, particularly when related petitions are filed together. So far, the results have been about as chaotic as a golden retriever cooking dinner with an oven mitt over its head.
For Standard Processing, most Receipt Notices appear to be arriving about 7 – 10 days from the actual receipt date with the receipt date being the date it was physically received by Texas. However, in some cases the Receipt Notices are arriving much later, after the Approval Notice has arrived, or not at all, but with the receipt date retroactive to the date of actual delivery.
For Premium Processing, most Receipt Notices are arriving by email the day after they are filed, again with the receipt date being the date the petition was actually received by Texas. However, we had an instance where we never received any email receipt notification at all, but then received both the Receipt Notice and Approval Notice in the mail 15 days after Texas received the petition.
Whilst we have yet to see or be aware of instances of the Texas Service Center forwarding a petition to the wrong service center, that is only a matter of time. So, we are recommending that you highlight with bright colours, stars, and balloon on both the I-129 and in your cover letter whether your petition should go to Vermont or California.
Most importantly, upon receiving any Receipt Notice or Approval Notice, immediately check them for accuracy. There are multiple reports, including our own experience, of typos in Beneficiary names, birthdates, and country of citizenship. For example, we are now fairly certain that the USCIS code for Austria is one digit away from that for French Polynesia. In addition, we just received two Approval Notices for the same artist, each with the same receipt number, but with two different visa approval periods.
• Visa Stamp Interview Waivers
Most US Consulates continue to experience delays and backlogs in processing visa stamp applications. I cannot emphasize enough not to anticipate an artist receiving their visa stamp in a few weeks or anywhere as quickly as they may have received them in the past. Those days have faded into the mists. To address backlogs, it continues to be a common practice at many US Consulates to grant interview waivers in cases where the artist has held the same category of visa before or has travelled to the US before.
At some consulates, the applicant will know at the time they submit their visa application whether or not they have been granted an interview waiver or will be required to schedule an interview appointment. At others, they require all visa applications and documents to be submitted by courier and will then inform the application later whether or not they need to schedule an interview appointment. Regardless, receiving an interview waiver does not necessarily speed up the process—it merely saves the artist a trip to the consulate. One is not necessarily quicker than the other and it can still take several weeks for a consulate to issue and return a visa stamp even where it has waived the interview.
All the more reason to factor in this process when calculating the total time needed for an artist to receive a visa and enter the US to perform. In other words, it is not just the USCIS processing times one needs to consider, but the consulate application processing time as well.
• Expediting a Visa Stamp Interview at a US Consulate
Unlike with USCIS, there is no ability to pay additional fees to upgrade the processing of a visa stamp application. If you have an actual emergency*, such as an artist needed to replace one who is ill or inadvertently fell into the orchestra pit, you should first request an expedited appointment and/or expedited application processing at the specific consulate where the application was submitted. If that does not succeed, either the Petitioner or the presenter/venue who will be impacted the greatest if the artist cannot arrive should reach out to one of their US Senators. If that does not work, or if the US Senators are too busy regenerating their tails, the final option is to email businessvisa@state.gov to request assistance – there’s a possibility of them putting in a word or helping to locate an alternate consulate to process the application. However, do not to all of those at the same time. That will just make them angry.
*A crisis caused by the presenter, the artist, and the artist’s manager all collectively failing to realize the artist needed a visa and then filing the petition late but without paying for premium processing is not considered an “actual emergency.” You know who you are!
HAPPY HOLIDAYS !
Best Wishes for a joyful celebration of the winter solstice, practiced within the most enjoyable traditions of the religious and/or secular persuasions of your choice, but subject to the standard terms of Force Majeure, including, but not limited to ulcerated in-laws, septic eggnog, Mariah Carey overload, and royal demise, and with all applicable disclaimers of any guarantees or promises, implied or otherwise, that your holiday will, in fact, be jolly, merry, joyful, or even agreeably diverting.
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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.