• A National Ban on National Bans • Copyrights & Translations • Artist Visa News, Nausea, and Updates • A Canadian Takes The Prize • We’re Moving on Up
LAW & DISORDER
Performing Arts Division
October 17, 2024
Legal Issue of the Month: The New National Ban on Non-Compete Agreements Has Now Itself Been Banned!
If you have been following this twisted tale, back in April 2024 we reported that the Federal Trade Commission (FTC) issued a nation-wide ruling banning non-compete clauses in all contracts, regardless whether an individual is hired as an actual “employee” or as an independent contractor, paid or unpaid, etc. If implemented, it would mean that agents/managers leaving one agent for another could not be restricted from competing with their old agency. Then, in June 2024 we updated this to report that the new ruling would also prohibit a performance venue from imposing any geographical restrictions on where an artist could perform before or after their date.
Now, just pretend none of this ever happened.
In late June 2024, the US Supreme Court issued a ruling in Loper Bright Enterprises v. Raimondo, Secretary of Commerce that significantly curtailed the ability of federal regulatory agencies to impose new rules and regulations and essentially overruled decades of law requiring judges to defer to regulatory authorities. In a decision long awaited by basement hog butchers and pre-school fireworks factories, judges are now given complete authority to re-write and or toss out whatever regulations they don’t like. In light of this, in August 2024 a federal district court judge in Texas wasted no time in blocking the implementation of the proposed FTC non-compete ban finding that the FTC had exceeded its authority. Together, these rulings prevent enforcement of the ban on a nationwide basis. The FTC has not yet announced whether it will appeal the ruling.
However, in the “this is a fun twist” department, there are “whispers” that the Loper Bright decision could provide the ammunition needed to have a court finally curtail the long-unfettered discretion of USCIS to make up their own spurious, arbitrary, and laughable definitions and interpretations of regulations in their efforts to thwart issuing artist visas. By the time you get to the end of this blog, you may actually want to send the Texas judge a thank-you note.
Dear Law and Disorder: Actual questions we get asked and the answers people actually don’t want
"Copyrights & Translations”
Dear Law & Disorder:
What rights does a translator have? I translated a non-English script into English. All of the prior translations were very bad, which is why I did my own. Everyone agrees mine is the best, even the original author. However, now that I am getting offers to produce my English version, the author and his publisher are insisting that, if I want to proceed, then they will own the translation and just pay me royalties for English productions using my translation. That doesn’t seem fair. The translation is all my work. I thought translators own the copyrights in their translations, so, don’t I already own it?
Let’s assume I own a car which drives well, but is a hideous colour identified in the Benjamin Walker paint palette as “algesic pickle.” You drive my car out of my garage, have it re-painted, and present it to me with letters of gratitude from all of my neighbours. Even if I love the new colour, the car itself still belongs to me and you have no rights to it.
Copyrighted material (music, lyrics, images, scripts, etc.) is like a car. The owner of a copyright has the exclusive right to determine who uses it and how—including the rights to edit it, make copies of it, perform it, record it, re-arrange it, re-orchestrate it, or translate it. In short, there is nothing you can do without the owner’s permission and, in exchange for such permission, the owner can set any terms, reasonable or unreasonable, that the owner wants—including the right to refuse permission entirely. (Ok, there are one two minor exceptions, but they don’t apply to your question.) You are correct that, if translations contain a sufficient amount of creativity (as opposed to, say, a Google translation), then the translation is, itself, subject to its own copyright owned by the translator. However—and this is a BIG “however”—if you didn’t have the original author’s permission to make the translation in the first place, then your copyright is meaningless. It doesn’t matter how artistically nuanced, sensitive, or authentic it may be. As an unauthorized translation, any use of the translation would constitute an infringement of the original author’s copyright. Owning the copyright in the translation merely gives you the right to stop others, including the original author, from using it, but it doesn’t give you any right to use it without the original author’s permission.
Artist Visa News, Nausea & Updates
1. Visa Petitions Are No Longer Sent to Visa Centers Based on Location!
Whilst this should be old news by now, it bears repeating as some as still asking about this and this situation has now led to significantly more painful developments.
In December 2023, USCIS implemented a new system whereby all O and P petitions are now sent to the Texas Service Center whereupon a designated officer-of-the-day cuts the head off a chicken and, depending upon where it flops itself down onto a large map of the US, forwards the petition either to the Vermont Service Center or California Service Center—regardless of where the petitioner is based or where the performances are happening. In other words, service centers are now selected completely at random—which is a significant change from the last 30 years.
At the time, USCIS offered assurances in the most soothing of tones that this change would facilitate more timely and reliable adjudications, even going so far over this past summer to proclaim with an impressive mastery of antonyms that they “will continue to provide prompt and efficient service in processing requests for immigration benefits.” To the astonishment of no one, this has not been the case.
2. Standard Processing Times Are Now Amongst the Worst in Decades!
As of October 2024, standard processing times at the Vermont Service Center are now taking from 2 – 3 months whereas standard processing times at the California Service Center are now taking from 5 – 6 months. (We are even aware of petitions that have been festering within the colon of the California Service Center since May 2024!) The impact of this is that standard processing times are now less consistent and more unpredictable that they have been in decades. Unless you have paid for premium processing at the outset, there is no longer any way to predict how long USCIS will take to review and process your petition until you see where the vengeful spirit of the decapitated chicken has determined your petition is sent.
If El Pollo Diablo sends your petition to Vermont, you can expect 2 – 3 months, but if it winds up in California you can expect 5 – 6 months. Which means unless you have filed the petition far enough in advance, any petitions that Cluckthulu tosses to California will require an additional $2805 for premium processing to have the petition reviewed in less than 5 – 6 months. Even worse, notwithstanding the significant backlog at the California Service Center, Eggzilla continues to send more than half of all filed petitions to California.
3. Companion Petitions Are Being Divorced!
For anyone who ordered yet another steaming turd sandwich of malicious incompetence, it has now become standard practice for related petitions filed together to be split apart. This means that if you were to file an O-1 petition for a singer and an O-2 for the accompanist, the O-1 petition will go to a different service center than the O-2. As a result, not only will the petitions be approved at different times, but if Hennibal Lecter sends the O-2 to Vermont, USCIS will issue a Request for Evidence (RFE) and put the O-2 on hold because Vermont cannot approve the O-2 until California approves the O-1 first. So, once again, unless you have filed your petitions far enough in advance, you will likely need to pay for both petitions to be premium processed—at a cost of $2805 each!
…and it gets worse for large groups.
Under the new rule that went into effect in April 2024, petitions are now limited to 25 Beneficiaries each. Groups larger than 25 must file multiple petitions. So, if an orchestra or ballet company has 77 performers and a staff/crew of 26, they will need to file four P-1 Petitions and two P-1S petitions. The Bride of Clucky will then randomly toss some to Vermont and some to California. This will result in all of them getting processed at different times, with the P-1S petitions being the most delayed as they cannot be approved until all of the P-1 petitions are approved first. Even if you premium process all of them, the approvals are going to trickle in septically throughout the premium processing period.
4. P-1S and O-2 RFEs Continue!
We reported in June 2024 a disturbing increase in RFEs for Essential Support Staff Petitions (O-2, P-1S, and P-3S) in which USCIS is asking for individual employment contracts for each person with specific employment terms and conditions, more information on why the services provided are necessary for a performance, and why the group can’t just hire US workers instead.
Whilst we had hoped we could just continue to swat these away, USCIS has become even more voracious in its appetite to rid our shores from the scourge of non-US stage managers, lighting technicians, and orchestra librarians. So, as we have done to address other exhaustively inane RFE trends in the past (agent appointment forms, translation certificates, etc.), we advise that you create your own templates and forms to deal with this issue going forward.
When henceforth filing an O-2, P-1S, or P-3S petitions include at the outset a template or form confirming the employment terms for each member of the support staff which addresses the specific issues being raised in these new RFEs. Keep it simple. Do not make them think. Give them what they want to know regardless of how inapplicable or self-evident it may seem. It can be as simple as a document with the staff person’s name at the top, followed by a list of the following: (1) Services To Be Performed, (2) Location of Services, (3) Hours of Work, (4) Wages, (5) Working Conditions, (6) why the beneficiary’s services are necessary to the performances in the US; and (7) why each beneficiary’s services cannot be performed by a US worker. You should also provide a detailed resume/bio for each beneficiary as USCIS has been asking for these as well. In short, as with regard to whatever tantrum USCIS may throw for a puerile craving at any given time, feed it what it wants rather than what you have on the menu. It’s parents can clean up its mess on their own time.
5. Let’s Not Forget the U.S. Consulates!
Not content to let their colleagues at USCIS have all the fun, reports are increasing that consulates are delaying or denying visas for young artists or anyone they feel may be entering the U.S. with the intent of never leaving. These instances do not appear to be focused on any countries in particular. Recent actual examples include an Irish step-dancer, a Brazilian violist, and an Italian lighting technician—all clearly individuals from high-risk countries that pose an existential threat to our stable government.
A recent report from The American Immigration Lawyers Association confirms that consular officers are, indeed, primarily trying to sniff out immigrant intent. They are looking for issues such as ties to an artist’s home country, stable employment, prior international travel, whether they have family in the US, etc. This can be particularly challenging for young artists who have never before travelled outside their country, are not married/do not have kids, or are young artists. Obviously, these needs to be addressed on a case-by-case basis, but it may be worth arming young artists with confirmation of their travel plans and non-US engagements…or encouraging them to seek a more stable field of employment, such as USCIS examiners.
A Canadian Takes The Prize
Congratulations to our profoundly genteel and even more profoundly talented client Jaeden Izik-Dzurko from Canada who has just won the 2023 Leeds International Piano Competition – one of the classical music world’s most prestigious prizes!
Jaeden is managed by Monica Felkel of Monica Felkel Creative Partners.
We’re Moving on Up
I’m not sure what you did over the summer, but we moved our offices. After years in “upstate” Manhattan, we have now moved into Midtown. Our new address is:
307 Seventh Avenue
Suite 2004
New York, NY 10001
Deep Thoughts…
“Here I am with all this talent bottled up inside of me and you’re always sitting on the cork!"
― Lucy Ricardo
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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.