Jurisdiction Clauses • Negotiating with Performing Arts Organizations • Important Updates on Artist Visas
LAW & DISORDER
Performing Arts Division
March 25, 2024
Legal Issue of the Month: Jurisdiction Clauses
Did you know that among the many things parties can negotiate and include in their contracts is who gets to name the battleground for a legal duel and whose rules apply? Let’s say you are an agent based in New York City representing an artist who lives in Illinois being booked to perform in a venue in California. The parties can agree in advance that any legal battles must be waged in New York and New York law will apply. It’s called a “Jurisdiction Clause” and it usually looks like this:
“Any controversy or claim relating to this Agreement shall be submitted first to mediation and then, if mediation is unsuccessful, shall be brought in the court of appropriate jurisdiction in New York City. The laws of the State of New York shall govern the construction and interpretation of this Agreement.”
There are lots of reasons for this: convenience; some courts and states are more familiar with arts industry disputes than others; its where your cousin Bernie the lawyer lives; etc. Whilst most state affiliated schools and local governments cannot agree to any jurisdictions outside of the State in which they are located, almost everyone else can if they are want to. And this can apply internationally, as well. If you are booking an artist at a venue in London, you can designate that a lawsuit can only be filed in London and apply the laws of the U.K.—where you will also get the added benefit of a trial with wigs, robes, and more production value.
Dear Law and Disorder: Actual questions we get asked and the answers people actually don’t want
"Negotiating with Performing Arts Organizations”
Dear Law & Disorder:
Our venue is signing up for our first SESAC license. We're now programming enough artists in the bluegrass/folk realm that we think it makes sense to do so. Years ago we tried to negotiate terms with ASCAP or BMI (can't remember which one) and they told us in not so many words, "That's not a thing..." Is SESAC structured similarly in that the terms are pre-set and non-negotiable? If so, I see no point in attempting a back and forth on various terms in this license.
There actually is a big difference between the two major performing rights organizations (knows as “PROs”) ASCAP and BMI and others such as SESAC, GMR, etc.
The rates charged by ASCAP and BMI (and pretty much everything else about how those organizations operate) are subject to court order. So when they tell you that negotiation of rates isn't possible, they aren't simply being mean and ornery. They legally cannot. Why, you may ask? (You didn’t, but I’m going to tell you anyway.)
Back when ASCAP and BMI were founded in the 1930s, both of these organizations were sued by the U.S. Justice Department over alleged antitrust violations (ie: price fixing). Both eventually agreed to enter into consent decrees with the DOJ which allowed them to continue to operate, but with government supervision over what they can charge for licenses and other pertinent details of their operations. Those consent decrees have remained in place to this day. SESAC, Global Music Rights (GMR) and other, newer PRO agencies, on the other hand, were formed long after ASCAP and BMI and have never been required to enter into consent decrees, much less require DOJ approval over their business. Among other reasons, SESAC and GMR operate as for-profit corporations and membership is by invitation only. They also tend to represent a smaller group of composer who can also charge a premium (Lizzo, Drake, Bruce Springsteen, Nicki. Minaj, etc.). In addition, the newer PROs issue other music licenses such as mechanical, synchronization, re-arrangements, etc. whereas ASCAP and BMI are just limited to issuing public performance licenses.
BMI and ASCAP have long advocated for updating, modernizing, or even eliminating its consent decrees on the basis that the government oversight prevents them from competing with the other PROs who can set market rates and implemented more flexible licensing terms. However, there has been pushback and disagreements among artists and within the music community regarding the benefits, drawbacks, and continued need for the ASCAP and BMI consent decrees, among them being that ASCAP and BMI would likely raise their license fees, not lower them benefitting songwriters, but not their licensees. So, as a result, over the course of two different reviews by two different DOJ administrations in the past eight years, the DOJ has opted just to kick the can down the road.
So, how does this apply to you. It means that since SESAC isn't subject to a consent decree, they SHOULD (in theory) have more flexibility in negotiating the licensing rates they charge. This doesn't mean that they will, just that they can if they want to. So, it never hurts to make a pitch. Also, as you may have only just learned that there are more PROs that just ASCAP, BMI, and SESAC, and that not all songwriters and composer are with “the big three” you may need to explore whether you will need to get licenses from the others as well.
Artist Visa News & Nausea
IMPORTANT UPDATES!
And now for what you have all been waiting for…updates on all of the new fees, policies, and changes to the U.S. artist visa process. There’s a lot to digest, all of it tainted with more e-coli that an aqua-lettuce farm in the East River.
1. NEW STANDARD PROFESSING FEES
Whereas there used to be a single petition filing fee regardless of the type of visa petition, effective April 1, 2024 USCIS will be igniting a colonic explosion of six different fees based on the visa classification and the type of petitioner:
I-129 Petitions for O Visas (O-1/O-2)
1. For U.S. nonprofits (including schools), the filing fee will be $530 per petition.
Among your other petition materials, you must now also include proof of your non-profit status such as an IRS non-profit determination letter or copy of a currently valid IRS tax exemption certificate.
2. For U.S. “small employers” (defined as employers with at least 1, but less than 25 full-time employees) the filing fee will be $830 per petition.
Among your other petition materials, you must now also include a copy of your IRS Form 941 to prove you have at least 1, but less than 25 full-time employees. Please note that IRS Form 941 does not, in fact, actually show whether you have full-time or part time employees, but for whatever reason USCIS thinks it does, so we’re going with that.
3. For everyone else (such as a single member LLC, a sole proprietor, or any entity that only engages part-time employees, seasonal employees, or independent contractors), the filing fee will be $1655.
I-129 Petitions for P Visas (P-1, P-1S, P-2, P-3, P-3S)
1. For U.S. nonprofits (including schools), the filing fee will be $510 per petition.
Among your other petition materials, you must now also include proof of your non-profit status such as an IRS non-profit determination letter or copy of a currently valid IRS tax exemption certificate.
2. For U.S. “small employers” (defined as employers with at least 1, but less than 25 full-time employees) the filing fee will be $810 per petition.
Among your other petition materials, you must now also include a copy of your IRS Form 941 to prove you have at least 1, but less than 25 full-time employees. Please note that IRS Form 941 does not, in fact, actually show whether you have full-time or part time employees, but for whatever reason USCIS thinks it does, so we’re going with that.
3. For everyone else (such as a single member LLC, a sole proprietor, or any entity that only engages part-time employees, seasonal employees, or independent contractors), the filing fee will be $1655
2. NEW PREMIUM PROCESSING FEES
Effective already (because this actually went into effect on February 26, 2024), the fee for Premium Processing is now $2805. In exchange for such increase, USCIS premium processing will now be slowed to 15 business days as opposed to the previous 15 calendar days—or, more or less, 21 days. Yes, you read that correctly.
3. NEW FORMS
Where new fees rush in, new forms are sure to follow.
The I-129 Petition Form
EFFECTIVE APRIL 1, 2024, there will be a new edition of the I-129 Form marked with the edition date of 04/01/2024.
PLEASE NOTE: there will be NO grace period! As of April and beyond, USCIS will only accept the new 04/01/2024 edition of the I-129 Form and no earlier editions. So, if you send them the wrong form on April 2, they will send it back. However, do not try and complete or file the 04/01/2024 edition before April 1. Not only will USCIS reject it, but you cannot even yet access the new 04/01/2024 edition on the USCIS website. Other than a locked and unusable teaser version, USCIS will not be releasing the formal, downloadable 04/01/2024 edition of the I-129 Form on its website until on or after April 1, 2024.
However, the preview version shows that the only real changes on the new 04/01/2024 edition of the I-129 Form will be few and banal. You will now be asked to indicate whether the Petitioner is a small employer with less than 25 full time employees. In addition, there will also be a question where it asks you to designate whether the Beneficiaries in the petition are “Named” or “Un-Named.” As there is only one visa category that allows “un-named” beneficiaries, and it is far from anything involving artist visas, the answer will always be “Named.”
The I-907 Premium Processing Form
I have never understood why USCIS requires a seven-page form for the privilege of paying them more money to accelerate the speed of ineptness from tortoise to jogging sloth. Nonetheless, beginning April 26, 2024, USCIS will only accept the I-907 Form marked with the edition date of 02/26/2024. Unlike the new edition of the I-129 Form, the 02/26/2024 edition of the I-907 Form is available now and you can start using it now. Of course, it is exactly like the old one, which itself was exactly like the editions before that one.
4. NEW BENEFICIARY RESTRICTIONS
Effective April 1, 2024, USCIS has limited the number of Beneficiaries that can be included on a petition at twenty-five (25). If a group or ensemble exceeds this number, additional petitions will be required (up to 25 Beneficiaries each). This means that the 76 members of the Lower Codswallow Symphony Orchestra will need to file four P-1 petitions: Three with 25 musicians and 1 with a single, very lonely and beleaguered Beneficiary (most likely, a violist). This means four filing fees at $510, $810, or $1615 each and four premium processing fees at $2805 each.
5. UNION CONSULTATION LETTERS
If you are filing multiple petitions to cover a group or ensemble in excess of 25 members, then you will also need a consultation letter from a union or peer group to submit with each petition. Will USCIS accept one letter for a group even if the group is split across four petitions? Or will they require a separate letter specifically designated for each petition? Who knows? Requests for clarification have been met with silence and blank stares. So, we are left to take our changes and see what happens.
The American Guild of Musical Artists (AGMA) announced on March 18, 2024 that, for now, they will continue to charge consultation fees based on the category requested and not the number of actual petitions but will issue a separate letter to cover the specific Beneficiaries named in each petition. For example, if you are filing an O-1 petition for a choral director and an O-2 petition for 80 chorus members, they will still charge only $350 for the O-1 ($550 for an expedite) and only $350 ($550 for an expedite) for the O-2, but issue one O-1 letter and four O-2 letters naming the specific Beneficiaries. To accomplish, this, they have updated their instructions and requirements for consultation requests which you can read and learn more about HERE.
The American Federation of Musicians (AFM) will continue to issue a single letter to cover an entire group regardless of the group’s size. For now, their advice is to continue using their single letter, but include a copy with each petition and pray to Our Lady of the Worthless Miracle that USCIS does not issue an RFE.
As the other unions and peer groups (AGVA, IATSE, etc) rarely have to deal with more than 25 Beneficiaries at a time, they can rest at ease for the moment.
Lastly, HERE's an hysterical, though sadly accurate, take our the US artist visa system by the fabulous actress Tilda Swinton.
Deep Thoughts…
A New York City Haiku
The full moon rises
A city sleeps peacefully
Rats rats rats rats rats
— Aubrey Plaza
Send Us Your Questions: Let us know what you'd like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.
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.