by Kevin Erickson, National Organizing Director

One week before thousands of music/film/technology fans descend on Austin for the annual SXSW festival, controversy has erupted over provisions in the performance agreement required of all artists. On Thursday afternoon, musician Felix Walworth of the band Told Slant tweeted a screenshot of contractual language and the caption, “After looking through this contract sent to me by sxsw I have decided to cancel Told Slant’s performance at the festival.”

Walworth’s tweet quickly went viral, and since then, media outlets picked up the story, and an array of musicians (including some good friends of FMC) escalated the pressure with an open letter demanding that this language be dropped.

We’re still trying to make sense of this story, but here’s some questions and answers.

Is this language new?

By all accounts, no. It’s been in the performance agreement for several years. This of course, is not a relevant consideration when determining whether a contractual provision is artist-friendly or in need of reform. Many bad practices have persisted for far too long in the music industry, and have only been addressed when artists began to speak up publicly about them.

SXSW General Manager Roland Swenson has responded by saying Walworth pasted two parts of the contract together to make it look worse than it was. Is this true?

No. Walworth shared a video scrolling through the emailed language, and showing that it was unaltered. But the video also seems to show that provisions emailed to Walworth were in a slightly different order and formatted differently than the standard PDF that participating artists signed. This is likely just the difference between terms as stated in an emailed offer and in a final document.

What is the language at issue?

Here’s the first two sections of the performance agreement in their entirety.

As full consideration of Artist’s performance at SXSW Music, receipt of which is hereby acknowledged, Artist hereby agrees to the following:
1. Exclusivity.
1.1. Artist will not perform any unofficial shows during SXSW in Austin, TX from March 13-19, 2017, between the hours of 7pm and 2am CT as well as any daytime events that SXSW deems to be a conflict and/or adversely affects SXSW. In-store performances at record stores and any radio and television performances under (10) ten minutes in length are not subject to this restriction.
1.2. Artist understands and acknowledges that Artist’s official SXSW showcase is Artist’s first priority. Artist will not take actions that undermine the success or inhibit attendance of Artist’s official SXSW showcase, including, without limitation, accepting invitations for an excessive number of unofficial SXSW shows. Based on years of experience, such actions negatively impact SXSW.
1.3. By February 13, 2017, Artist will notify SXSW in writing of any and all unofficial shows Artist wishes to perform at during March 13-19, 2017, and request approval to perform (email musicfest [at] sxsw [dot] com).
1.4. Foreign Artists entering the country through the Visa Waiver Program (VWP), B visa or any non-work visa may not perform at any public or unofficial shows, DAY OR NIGHT, in Austin from March 10-19, 2017. Accepting and performing at unofficial events (including unofficial events aside from SXSW Music dates during their visit to the United States) may result in immediate deportation, revoked passport and denied entry by US Customs Border Patrol at US ports of entry. For more information, please visit these pages:
1.4.1.(B Visa / ESTA) http://travel.state.gov/content/visas/en/business.html 1.4.2.(Work Visas) http://travel.state.gov/content/visas/en/employment/temporary.html 1.4.3.SXSW general visa FAQ: http://www.sxsw.com/travel/visa-faq
2. If SXSW determines, in its sole discretion, that Artist or its representatives have acted in ways that adversely affect the viability of Artist’s official SXSW showcase, the following actions are available to SXSW:
2.1. Artist will be removed from their official SXSW showcase and, at SXSW’s sole discretion, replaced.
2.2. Any hotels booked via SXSW Housing will be canceled.
2.3. Artist’s credentials will be canceled.
2.4. SXSW will notify the appropriate U.S. immigration authorities of the above actions.

The document goes on to stipulate that artists agree to a SXSW banner appearing on stage, that there will be no guest list, and other fairly benign standard provisions. 

The central concern is that worries about immigration status are being leveraged to discourage people from playing unofficial shows.

SXSW’s responded to criticism in part by saying “Language governing SXSW’s ability to protect a showcase has been in the artist Performance Agreement for many years. It is, and always was intended to be, a safeguard to provide SXSW with a means to respond to an act that does something truly egregious, such as disobeying our rules about pyrotechnics on stage, starting a brawl in a club, or causing serious safety issues.” In light of past problems, doesn’t this seem reasonable?

Sure, except that there are no mentions of safety issues, violence, etc in the performance agreement. The focus in these sections appears to be on the “viability” of the official showcase, and the single factor repeatedly identified as threatening the viability of the official showcase is whether artists are playing unofficial showcases.

If the concern were simply about appropriate on-stage behavior, it’s puzzling that the agreement makes no mention of this, and instead repeatedly calls out performing in unauthorized evening events or too many unofficial daytime events as the one factor that “negatively impacts” SXSW.

And if the concern was really about appropriate on-stage behavior, it’s puzzling that there would be any need to get U.S. immigration authorities involved. Starting a bar brawl is already illegal, but doesn’t typically fall under the purview of immigration authorities.

How normal are exclusivity clauses?

Also known as proximity or blackout clauses, they’re pretty standard for bigger festivals. Bands are asked not to book any gigs in a certain window in a geographic area before and after their show, to avoid competing with themselves and decreasing the size of the audience that they would be able to draw. Policies like this even exist for smaller clubs, though they can be more of an informal practice than a contractual provision.

Are exclusivity clauses a bad thing?

Promoters typically argue that they help boost attendance and create the conditions for successful events. Anecdotally, artists frequently find them annoying, if sometimes necessary.

Why is SXSW so concerned about performers playing unofficial events?

Over the years, SXSW developed a robust tradition of unofficial parties and side events alongside the official events; today, some people go to the festival only to attend these parties. The easier it is to get the SXSW experience without paying for a badge, the less incentive there is to buy a badge, and badge sales are an important revenue source for the festival. Contractual language addressing this has reportedly become more forceful over time, though accounts vary on how strictly the policy has been enforced.

Has SXSW ever actually reported anyone to immigration authorities?

We aren’t aware of this ever happening.

Could the inclusion of this language in the contract just be a way for SXSW to avoid liability?

If that was the concern, they could just as easily include a more straightforward clause where performers agree to abide by all federal, state, and local laws.

SXSW claims that some of the language “is included to inform foreign artists that the U.S. immigration authorities have mechanisms to create trouble for artists who ignore U.S. immigration laws. For example, those acts coming to SXSW to perform without a work visa are limited, by U.S. immigration law, to performing their showcase event only. If an artist wishes to perform elsewhere, they will require a work visa.” Is this true?

It’s true that performing artist eligibility for the B1 visa or ESTA visa waiver are very narrowly defined, and that artists who violate these limitations could get into trouble, as is the case for anyone who doesn’t comply with the terms of their visa or waiver. (Our friends at artistsfromabroad.org have the best and most comprehensive information on visa requirements for international artists)

At the same time, it’s not clear that SXSW is completely describing the narrow circumstances that allow for exceptions. Certain showcases  technically qualify as an “audition”, though that’s not officially codified by USCIS or the State Dept. Cultural exchange performances financially backed by the sending country are another exception.

If the point were really only to explain to international touring artists how to comply with the law, SXSW could certainly do a better job at presenting this information. If it’s only about compliance with law, then why is it in the section with the header “exclusivity”, the same section that warns about how unofficial shows undermine official showcases?

Why might anyone seek a B1 visa or ESTA visa waiver instead of a less restrictive work visa?

Well, the artist visa system for international performers trying to tour the US is pretty messed up. It’s characterized by unpredictable wait times, high fees, and headaches.  And not every international artist is necessarily eligible, depending on where they are in the course of their career.

What can we do to help fix this?

A couple of pieces of legislation have been proposed. The ARTS Act is designed to provide expedited processing for artists so visa issues don’t interfere with tours. And the BEATS Act focuses specifically on Canadian artists. Of course, these are just small changes; there is much more to do to make US immigration policy sensible and humane.

So, is SXSW seriously considering getting bands deported for playing unauthorized shows?

Probably not. But the language is there.

Is SXSW actually actively working with ICE (Immigration & Customs Enforcement) in any way?

We haven’t seen evidence of this. They are likely working with USCIS (US Citizenship & Immigration Services), as is common for organizations presenting international performing artists. Unlike ICE, USCIS is an administrative agency, not a law enforcement agency.

Is SXSW’s standard agreement leveraging threats of deportation in a way that while always ethically dubious, now feels especially reckless and meanspirited given the current political climate? Are they doing this for the relatively petty reason of trying to discourage people from playing unauthorized events that compete with official showcases? Whether or not SXSW’s intentions are malicious, isn’t this profoundly insensitive at a time when racist and anti-immigrant hate crimes are on the rise, when families are being separated, when DREAMers are being deported without so much as a hearing?

Yeah, it sure looks that way.

And when artists express valid concerns about this, shouldn’t those concerns be engaged respectfully?

Yes. Unfortunately that’s not what’s happened. SXSW’s Swenson essentially accused Told Slant of a publicity stunt, telling the Austin Chronicle, “I think that everybody has figured out that a quick way to get your name out there is to accuse us of conspiring with immigration authorities,” as if the cancellation was motivated by cynical self-interest rather than sincere concern over policies that are not artist-friendly.

Ugh. What should we even think about SXSW now?

Well, everybody’s got opinions! Doritos stage aside, it’s certainly much bigger and less intimate than it used to be, but there’s still a lot to appreciate. FMC staffers have enjoyed appearing on panels many times over the years, and always enjoy being surrounded by so many people passionate about live music, both at official events and unofficial events. We’ve also participated by working with groups like HeadCount to help answer SXSW performers’ questions about access to healthcare, and used the event as an opportunity for organizing around Low-Power FM. It’s easy to see why some folks find it too crassly commercial, too centered on business interests, or just too crowded; it’s also easy to see why others still find it worthwhile as an annual gathering place for great music & film, and a place to advance important causes and conversations.

This incident has also relaunched discussion about the varied impacts of SXSW on Austin’s music community, but on topics like gentrification and affordability, debates should probably be driven by Austinites themselves. A good resource to that end is the Austin Music Census report, drawn from an extensive survey of Austin musicians.

By the way, do you have thoughts on the travel ban’s implications for musicians?

Yes. You can see a joint statement we signed here.

So what should SXSW do?

Striking the language about reporting people to immigration authorities and offering a sincere apology would be a good start.

Update: in a clear victory for artists, on Tuesday 3/7/2017, SXSW released an updated statement clearly committing to changing the language in question, apologizing for its inclusion, and underscoring the festival’s support of international artists.