Gallery Responses to Covid-19 Crisis

Posted on June 6, 2020October 17, 2022 by admin

Litigation counsel Ron Adelman covers everything that gallerists need to know about responding to the Covid-19 crisis.

My name is Ronald Adelman. I am a New York art lawyer. I have been representing people in the art world in the areas of real estate, intellectual property, corporate law and commercial law for 30 years. I am going to focus on the commercial real estate challenges and responses for galleries and other art-related businesses in the wake of the coronavirus crisis. I will also cover some related issues like bankruptcy and governmental programs to help small businesses get through the crisis.

The coronavirus crisis could easily be the worst disaster for the US in recent memory. As you know, all non-essential brick-and-mortar businesses have been shut. Art galleries and other art-related businesses have all been deemed non-essential. This is a time where every art professional must carefully review how to remain sustainable. If you are an arts professional with a commercial lease, then this presentation will discuss everything you need to know to get through this.

Before discussing leases, I will first comacabacus crackver the New York governor’s order preventing commercial evictions. Second, I will cover the potential rent freeze options galleries may have. Third, I will discuss the numerous options available regarding leases. Fourth, I’ll mention programs that are being set up to help small businesses.

Please remember this presentation is provided informational purposes only and is not legal advice. You should not act or refrain from acting because of any content included here without seeking the appropriate legal or other prowindows 10 keygen redditfessional advice.

I will start with a couple of quick points comparing commercial leases with residential leases. In New York, courts view commercial tenants less favorably than residential tenants. For example, residential tenants can more easily terminatesmartdeblur keyleases if the landlord fails to provide an essential service like running water. It has also been harder to evict residential tenants for non-payment than commercial tenants.

However, the pandemic has changed that, at least temporarily. I’ll discuss why that is shortly.

I have heard that some commercial landlords are willing to be more flexible with negotiating and enforcing leases as a result of the crisis. This makes sense. Forcing a good tenant out in the current situation may result in months or years of vacancy.

There is a five-month moratorium on eviction proceedings against commercial tenants in New York. The moratorium began on March 20 and will end on August 20. Further extensions are possible. Landlords cannot file new eviction cases during this period and cannot take any further steps in cases that were previously filed. Even threats to sue are unlawful harassment and can bring heavy fines. The courts are just barely beginning to reopen. That means that even when the moratorium ends there will be long delays due to the backlog.

But a moratorium does not mean that you don’t owe or need to pay rent. It only means that you can’t be evicted for now. Some state senators have proposed a bill that would free commercial tenants, including galleries, from the obligation to pay rent for three months if they can demonstrate that they were affected by the crisis. The bill is pending in the New York State legislature. Galleries were included in the non-essential businesses that had to close, so they would be eligible. Of course, this would be a great help to most galleries. But it would have to be approved by Governor Cuomo in addition to the state legislature. This is ongoing and you need to watch for further developments.

So let‘s assume that you have a commercial lease and have cashflow issues related to the crisis. What do you need to know? What can you do? I am now going to discuss some strategies for dealing with your lease.

The first thing you should look for in your lease is a “force majeure” clause. It can also go by other names, including “Act of God”, “Inability to Perform” or similar language dealing with natural or man-made disasters. Here is one sample, which covers “strikes or other labor disputes, fire or other casualty, accidents, any orders of any Governmental Authority or any other cause beyond Owner’s reasonable control”.

I highlighted the “Governmental Authority” language because that is the one that applies to this crisis. The second step is to see what it excuses the tenant from doing or not doing. In the best case it will be a reason a tenant can terminate the lease. Or, if the tenant doesn’t want to terminate, it may excuse the tenant from paying rent while the emergency is ongoing.

Next you should look at the section of the lease covering the landlord’s representations and warranties. In some leases the landlord warrants that the leased space will be usable for the intended purpose. In other words, the landlord makes a binding promise that a space leased as a gallery can actually be operated as a gallery. Government orders during the crisis mean that galleries cannot be operated in any meaningful sense. A warranty like the one I described would allow the gallery tenant to get out of the lease. Most leases say that landlords aren’t responsible for things that are out their control, which probably covers the current situation. But you should nevertheless look at the landlord warranties to see if yours is more favorable to you. There is no question that the courts enforce landlord warranties in favor of tenants.

Next, you should review the lease to see if there is a personal guarantee. In almost all commercial leases, the tenant is a corporation or limited liability company. This includes gallery tenants. If the tenant is a business entity, the individuals who run the entity are not personally liable for the lease. To counter that, many landlords require one or more individuals to make a personal guarantee. The guarantee may be in a separate document so don’t just rely on the lease itself. Look for any side agreements or amendments.

Carefully reviewing the guarantee is a crucial step in determining your degree of personal risk on the lease. If there is no personal guarantee the individuals who are part of the gallery entity are generally able to avoid liability for unpaid rent.

Until now, personal guarantees have been generally valid and enforceable. But on May 26, New York City passed an unprecedented law that bars the enforcement of a personal guarantee if it made by an individual and
• if the business is a retail establishment that was deemed non-essential or
• was ordered to limit number of employees and/or customers between March and September 2020.

Virtually every gallery in the city falls within that definition. Any attempts by landlords to enforce personal guarantees subject to the law are invalid. They will be considered unlawful harassment and could in theory be subject to criminal fines.

The law does not apply to those guarantors that are other corporate entities instead of individuals. It is important to check the identity of the guarantor and not simply rely on the wording in the agreement as a “personal guarantee.” It is a major step to have a law that declares a whole class of contracts unenforceable. The law will be challenged by landlords. However, until a court rules in favor of the landlords the law is valid.

Next, you should look to see whether your lease has a “good guy” clause, sometimes known as an early termination clause. A “good guy” clause permits a tenant to terminate a lease early if the tenant has fully complied with its obligations under the lease and wants to leave. That means that
• rent payments must be up to date and the
• premises must be in good physical condition, referred to as “broom clean” condition.
The good guy clause can be a lifesaver if you have one.

In most cases, renegotiating the terms of the lease if possible is preferable to treating the landlord as an adversary. Of course, this requires that your landlord is willing to renegotiate and that you have a good relationship. The main terms to renegotiate are generally
• the length of the lease,
• amount of rent and the
• right to sublease

However, any clause in a lease can be modified by mutual consent in writing. Never rely on anything agreed to verbally. Verbal changes to leases are unenforceable.

Standard commercial lease forms in New York generally prohibit subletting. If it is not in the original lease, it must be covered explicitly in an amendment or rider. Generally,the most important aspects of the subletting from the tenant’s perspective are the
• right to return after the sublet ends and
• the right to keep the difference, if any, between the amount of rent the tenant pays to the landlord and the hopefully higher amount the subtenant pays you under the sublease.

If you have the right to sublet (or can negotiate this right) and keep the excess rent this can go a long way to keeping you afloat until things settle.

Redemption means that if the landlord sues to evict for nonpayment of rent, the tenant can “redeem” the property by paying all rent due up to the date of redemption. The tenancy will then continue until the end of the lease. Redemption is a possible option for a tenant who has more than five years before his lease expires. But the right of redemption is waived if the tenant fails to use it within one year after the landlord starts the eviction proceeding. Redemption can be and is usually waived in the lease. If that’s the case, then paying back rent won’t allow you to redeem. But if it is not waived, it can be an important step towards keeping your space if you want to do that long term.

Until now, I have looked at solutions that avoid litigation. But sometimes, getting a court involved is the only viable option. If the landlord is threatening to bring an eviction case the tenant can beat him to the punch by bringing a motion asking the court to issue a “Yellowstone” injunction. If the court issues the injunction, the landlord is barred from evicting the tenant unless and until the eviction case is finally decided against the tenant. This has proved to be a powerful weapon for tenants fighting eviction. However, the highest court in New York limited its effectiveness in a 2019 decision holding that the right can be waived in advance in the lease. As with redemption, a careful review of the lease is vital before beginning a court proceeding.

If none of the options I’ve already mentioned are available or desirable, and you do not pay rent, there is a good chance that the landlord will sue after the moratorium to evict you and get damages for unpaid rent. Almost all commercial leases in New York provide for “acceleration” of rent. That means that if the tenant fails to pay rent for a particular month, the landlord can declare the tenant to be in default and then immediately seek ALL rent due through the last day of the lease. For example, if your rent is $10,000 monthly and you have three years left on your lease the landlord will sue you for $360,000.

New York courts generally enforce acceleration clauses. But a recent trend is for the courts to deny the full accelerated sum if it would give the landlord an unfair financial “windfall.” As with many parts of the law there is no clear definition of what is a “windfall.” It will be decided on a case-by-case basis. I expect that courts will have a sympathetic view of the hardships of gallery and other small business tenants, in the wake of the coronavirus crisis, but it is impossible to predict at this point.

If your current and/or prospective debts outweigh your assets by so much that the business cannot be operated without restructuring, bankruptcy may be a viable choice. Your attorney will advise you to file under Chapter 11 if you hope to continue the business after getting out of bankruptcy or under Chapter 7 if you intend to close the business and liquidate.

Bankruptcy can be a major stigma for small businesses regarding credit and other things. However, bankruptcy can also have significant benefits. Most important, it automatically stops all pending and threatened proceedings in other courts. Instead the bankruptcy judge will decide all disputes. He or she is much more likely have more experience and understanding of the issues facing an insolvent business than judges in other courts.

Chapter 11 is designed for businesses that are in financial difficulty but expect to be able to continue. Often, the court will agree that the same people who operated the business previously can continue as “debtor-in-possession.” The debtor-in-possession has a fair amount of leeway to operate the business as it did before, but all actions can be subject to court review.

The Court may decide that the operators of the business are not sufficiently responsive to the interests of creditors and appoint a Chapter 11 trustee to run the business. Alternatively, the court can decide that reorganization is hopeless and convert the case to Chapter 7, which is designed to liquidate the business. However, if everything works as planned, the business’s debts to creditors will be fully discharged and the business will leave bankruptcy with a fresh start.

Chapter 7 is designed for businesses that have no hope of continuing. The court appoints a trustee who removes the former operators. The only real purpose of a Chapter 7 case is to maximize assets to satisfy the claims of creditors.

In a Chapter 11 case, soon after filing for bankruptcy the tenant/debtor-in-possession must elect whether to accept or reject all current contracts, including the lease. Accepting the lease means that the tenant must continue to pay rent and comply with all other lease obligations. The lease can be amended only with the landlord’s consent or by order of the bankruptcy court. Rejecting the lease terminates it and terminates the tenant’s obligations, including rent. But it is likely that as a result, it will be extremely hard to get a new lease from a new landlord in the foreseeable future.

A bankruptcy filing also has a significant effect on artwork the gallery is holding on consignment. The key distinction is between “primary consignment” artwork and “secondary consignment” artwork. Primary consignment artwork refers to artwork the artist consigns to the gallery. Under New York law, artwork consigned by the artist who created it is subject to special protection. Creditors have no claim to those works. Without exception the artist gets them back.

Secondary consignment artwork usually refers to artwork consigned to the gallery by a collector. There are fewer legal protections for consignor-collectors. Instead the artworks can become part of the bankruptcy estate of the gallery and eventually sold, with the proceeds going to creditors generally rather than the particular collectors.

But a gallery can (and probably should as a sound business practice) advise consignors to protect themselves at the time of consignment. The way to do this is by perfecting a security interest in the artwork. This can be done through a executing a simple form and filing it with the relevant government office (in New York, the Secretary of State). For more on information on protecting your consignors it is best to consult with an attorney.

Litigation should be viewed as a last resort. It is expensive, with costs running five figures and up. The expense is potentially compounded if the lease has a clause providing that the loser pays the winner’s attorneys’ fees. It is also slow. A span of two years from start to finish is common.

Either side can start lease litigation. More commonly the landlord starts it, but tenants regularly start the process through the Yellowstone motion we discussed. The initial documents are usually the complaint and answer, although the answering party can also make whatever counterclaims it may have, if counterclaims have not been waived in the lease.

The parties then engage in discovery. This is where all parties must turn over all documents that are relevant to the case. The term “documents” includes electronic information, such as emails and texts. The parties then move to depositions. Depositions are questions asked by the lawyers responded to by the opposing party. The witness is under oath and the questions and answers are transcribed by a court reporter.

After discovery, one or both sides will usually file motions for summary judgment. In essence, they are asking the court to decide the case in their favor before it goes to trial. If the court does not grant the motion in favor of one side or the other, the case will then go to trial.

It is important to note that there are delays between each of these steps. These delays are usually measured in months. If a matter goes to trial and judgment, legal costs can easily exceed $50,000. After winning on summary judgment or at trial, a successful landlord will receive a judgment. The judgment is a dollar amount consisting of unpaid rent (and any other applicable charges) plus interest.

Collecting a judgment is often harder than getting one. As lawyers say, “you can’t get blood from a stone.” For individual tenants, certain property is exempt from judgments. And, with rare exceptions, the judgment creditor cannot seek to collect from spouses or family. For judgment debtors that are business entities like LLCs or corporations, the landlord almost always cannot try to collect from individuals who manage or own the business.

This is where the significance of a personal guarantee comes into play. And this is why the new New York City law adds an extra level of complication and protection for tenants, as we have discussed. However, landlords have an extremely long time to collect on a judgment. In New York it is 20 years.

I would like to talk briefly about government programs that may be available to galleries and other small businesses in New York. These programs change, so please understand that some of what I mention here may be out of date by the time you see this. I urge all of you to get all of the governmental assistance that is available to you.

Unfortunately, state and local programs are currently on hiatus due to lack of funding. Those programs were:
1. A grant of up to 40% of two months of payroll for business with five or less employees; and
2. A loan of up to $75,000 for business with less than 100 employees.
It is not clear if they will be restored.

The situation changes continually and so I can only suggest that you consult the brochure released by the New York City Department of Small Business Services found here. It is updated at least monthly and lists the available U.S. Small Business Association programs, which I will describe shortly. The NYC SBS offers a signup to see new developments as they come online. It can be found at this link.

The only available federal program right now is the Paycheck Protection Program. Businesses with 500 or fewer employees can seek loans of up to $10 million or 2.5x annual payroll (whichever is lower). If the money is used for payroll, rent, mortgage interest or utilities and employees remain on the payroll for the full eight-week period, the loan will be forgiven. Otherwise, it is repayable at a 1% interest rate over two years.

The other principal program from the SBA was an Economic Injury Disaster Loan and Advance of up to $150,000. The SBA is not taking new applications for those loans but the program may be restored if Congress provides additional funding.

Dealing with the SBA takes a lot of effort, and there are rumors that the Paycheck Protection Program has run out of money. However, as of now, this appears to be untrue. The best advice is to be persistent. Expert assistance may also be helpful. Without question, the Paycheck Protection Program is worth pursuing.

To sum up:

Remember the rent moratorium
Check for a possible rent waiver or freeze (if approved by State government)

Review your lease for:

Force Majeure Clause
Landlord’s Representations and Warranties
Personal Guarantee (or lack)
“Good Guy” Clause

Keep following new legal developments, including the new bar on enforcement of personal guarantees. Take advantage of local state and federal small business assistance. Speak to an attorney about using every strategy available to you to deal sustainably with the crisis. Inaction is more likely to harm you than finding a way forward.

As difficult as it is to imagine, crises can create opportunities, if they can be seen and pursued. A large part of my job is to help art professionals find opportunities and protect their businesses under all circumstances. I wish you all the best of luck and insight in these unprecedented times.

Please contact me at ronald.adelman@stropheus.com if you have any questions, and I look forward to helping you.

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Artist Visas: A Comprehensive Guide for Artists and Gallerists

Posted on March 3, 2020October 17, 2022 by admin

Immigration attorney Rebecca Lenetsky covers everything that artists and gallerists need to know about artist visas to the US.

Intro

My name is Rebecca Lenetsky. I’m a New York-based immigration lawyer who works with creatives in the fine arts, film, music, journalism, digital arts, and other related fields.

If your intent is to grow your art practice, or creative profession by spending time in the US, I can be a key player with regard to your work visa, green card, or even citizenship.

This presentation will focus mainly on the O-1B Visa. An O-1B visa is necessary for many visits to the United States that are related to your artistic practice. This is also the visa you need in order to work in the US as an artist. Before turning to the details of the O-1B visa I’ll talk a little bit about the current immigration law situation in the United States.

Immigration law is currently changing more rapidly than almost any point in recent history. Many would say that immigration questions and especially restrictions are central to the current government’s policy. These changes have also affected those coming to the US on work visas such as the O-1B. Immigration law is based on two things. It is first and foremost the formal rules, also known as laws and regulations, which tell immigration and border officilista ssiptv agosto 2019 gratisals what you to do in order to be legally in the US. Secondly, it is the discretionary power of immigration officers. This includes officers at US consulates abroad, and of CBP officers at the physical border when you enter the country. Generally speaking, In order to safely travel to and stay in the US you must: (1) first fit into a visa category that is within the regulations, and (2) apply and be approved by the immigration agency in the US. (3) You must then present yourself at the consulalista iptv gratis agosto 2019te for a visa stamp. When you arrive at the the border, you need to have the right documents and profile for Customs and Border Protection to be comfortable with allowing you to enter the country. As an immigration lawyer, I bring value to my clients because I know exactly what the current regulations are and how they are changing. In the current pacote office crackeadoclimate, it’s very important to work with someone who has firsthand experience with how to present the facts so that they work smoothly with the official requirements. An important part of my role is also to dialogue with you regarding the requirements that are imposed at the consulate or the physical border. This is critical because any irregularities or inconsistencies in the information you provide to the Ddownload ativador windows 10epartment of Homeland Security or with Customs and Border Protection can lead to being refused entry or even being barred from entry for very long periods of time. In summary, in order to successfully navigate immigration law, you need an up to date and thorough working knowledge of the rules. It also requires understanding how exactly these regulations can be satisfied at different poffice 2013 download português + ativador gratisoints of the visa process. The good news is that with the right support and perseverance even the most daunting bureaucracy can be handled effectively and predictably. Visas A visa stamp is a document, usually issued by the consulate in your home country, that permits you to enter the US. The US requires citizens of most countries to secure a visa before entering. However, a visa is not a guarantee that you will actually be allowed to enter once you arrive. CBP border officers are now looking even more closely at the reason for a trip, any prior visits to the US, and even sometimes at the underlying qualifications for a visa. When we talk about visas, it will sometimes also refer to a type of legal short-term status in the US – for example, the O-1B visa category. There are typically two ways of getting permission to be in the US as a creative – either as a temporary visitor, or on a work visa. If you are coming for certain specific purposes – for example for short-term residency programs or speaking engagements – you may be allowed to enter the US as a short-term visitor/tourist. Artists entering as short-term visitors are also allowed to create and work on art, as long as it will not be regularly sold in the US. If you are intending to work or stay for longer periods you must have a special Visa for this. Working in the US without the appropriate visa means that you can be barred from entering the country for many years. Immigration law is very strict when it comes to following the rules. You cannot bend, ignore or avoid these rules without creating the risk of serious consequences that can stick with you for years to come. Let’s first look at what you need to know about visiting the US without the intent of working there. ESTA Visa Waiver and B1/B2 Visa Creatives visiting the US from specific countries can take advantage of the Visa Waiver Program (VWP).This includes most European countries, Australia, Japan, and a few others. The Visa Waiver is applied for through the Electronic System for Travel Authorization (ESTA) and the related Visitors on ESTA can stay for up to three months at a time. Citizens from non-ESTA countries require a B1/B2 visa to travel to the US as short-term visitors. The B1 visa is for business visits while the B2 visa is for pleasure and tourism. Visitors on B1/B2 can usually stay for up to six months at a time. You are not authorized to work in the US on the basis of an ESTA visa waiver or on a B1/B2 visa, but certain activities related to your artistic practice may be covered. You need to apply for the B1/B2 visa in advance of your travel at a US consulate abroad, usually in your home country. It is important to check with an immigration professional before traveling to the US to ensure your ESTA or B1/B2 covers the activities you are planning to engage in. Non-Immigrant Work Visas If you want to work or stay for extended periods of time in the US to develop your artistic practice you will need a temporary, non-immigrant work visa. There is no all-purpose, one-size-fits-all work visa in US law. Different types of work visas have different requirements. For some visa categories, you need to already possess specific work experience or academic degrees in order to qualify. Some visas, like TN Visas for Canadians and Mexicans, are only for citizens of specific countries. Work visa categories are like boxes with different shapes. You need to figure out which box is the right shape for you, and then show the US government that you fit into it. You must get experienced guidance to know what you qualify for and how to navigate the application process. For the rest of this presentation I will focus on the O-1B visas. The O-1B is the most commonly used work visa for artists. O-1B Visas Overview In the following I’ll cover the following: ● What are the O-1B Visa criteria and how do you qualify for an O-1B visa? ● What documentation do you need to provide to USCIS to show that you qualify? ● What if you are not quite ‘extraordinary’ yet? I will discuss how you can think about your current activities and projects to prepare for the O-1 I’ll also cover questions about O-1 procedure: ● What kinds of projects and other work you need to prepare before you apply ● Who is allowed to file the papers with the government ● What are the limitations and steps needed to prepare the application? I’ll also address issues of timing: ● How long does it take to prepare an O-1B before applying? ● How long does it take to get an approval from the government? ● How long can you stay in the US on an O-1B visa? General Notes The O-1B is called the “extraordinary ability” visa. It is meant for artists who have already shown that they have extraordinary ability in their field. The O-1B is meant for artists at all different stages of their careers. Emerging and established artists can both get O-1B visas – it is not just for the very top successful artists in the world. You certainly shouldn’t be discouraged by the term “extraordinary” The key to getting an O-1B as an emerging artist is to present the experience you have in a way that matches the format of the regulations. You also need to present these in a way that meets the expectations of the officer reviewing your documents. Before we go into detail it is important to remember in general: To get an O-1B you in fact do NOT need a full-time job lined up in the US, but you DO need to show you are coming for pre-arranged projects, shows or other work related to your practice. However, unlike other work visas, the O-1B allows you to be flexible and change what work is covered as needed. The O-1B, like most work visas, requires an application (technically called a “petition”) which is submitted to the US Citizenship and Immigration Service, which is located in the US. Once approved, you then apply in a second step for a visa stamp at a consulate abroad. As is the case with most US work visas, you cannot file an O-1 by yourself. You need someone in the US to petition on your behalf. This can be a US company, organization, or individual. The petitioner is a US domestic actor that makes a formal request for you to be granted a non-immigrant work visa. The petitioner is not the same person as a lawyer who is helping to prepare and submit the O-1B. In summary, the O-1B is a: (i) non-immigrant work visa linked to projects or engagements you have lined up in the US (ii) is flexible enough to account for changes to your projects (iii) must be applied for outside the US before you enter AND (iV) a person or an organization in the US must apply on your behalf Now let’s look at the prerequisites for an O-1B visa applicant. O-1B = Distinction in one’s Field The O-1B visa is for individuals with extraordinary ability – specifically, this means that an artist has to reach “distinction in their field.” Distinction means that you have gotten attention and been recognized for your work. “ You do not need to prove that you are the absolute best at what you do. I have a lot of experience with evaluating O-1B candidates, having represented artists at all different points of their careers. Many clients come to me after being told that they are not ready for an O-1, only for us to successfully obtain an O-1B for them. While I don’t want to underestimate how difficult this vias is to get, the O-1B is nevertheless meant for artists who can prove distinction, no matter how far along their practice is. Qualifying for the O-1B To qualify for an O-1B you need to show the following: ● One-Time Award ● Or you need to show that you have met at least (3) three of the six possible O-1 categories One-Time Award: If you received or were nominated for a significant national or international award or prize in your field, you don’t need to show any other proof of your qualifications. This means an award on the level of an Emmy, Oscar, Grammy, or equivalent in another country. Many awards will not qualify for this category. If you don’t meet the one-time award criteria, you have to show that you have met at least three of the six possible following criteria 3 out of 6 Criteria: 1. You have been the Lead or starring participant in productions or events with a distinguished reputation This covers any show, exhibition, event, installation, recording, or any other public presentation of your work. You need to show that your work was an important part of a production. If your work is being displayed in a gallery, it should ideally be a solo show Distinguished reputation means that there is public recognition for the event or venue; for example, were articles written about it, or did it get an award? If your installation is part of a high profile arts event, sometimes even social media feedback can be used to show the reputation of the project. 2. Published materials by or about you and your work in major newspapers, trade journals, magazines, or other publications This category includes any material in newspapers, magazines, journals or blogs that is written by you or about you and your artistic practice. This includes print and online sources. For this category, I ask my clients to put together a list of articles about their work. I also extensively research my clients and find articles that mention them or their work. The strongest articles are ones that discuss the artist’s work in detail. We then choose which are in the most prominent publications – either national media, or outlets that are important in the industry – for example, for visual artists this will be sites like Hyperallergic, Artforum, etc. Articles from foreign countries also qualify – you do not need US or English language articles. 3. You have played a lead, starring, or critical role for organizations and establishments with distinguished reputation Have you have had a prominent position or worked on an important project with a prestigious institution? This category is really extensive, it can include anything from a solo show with a prominent gallery to being employed as full-time curator with a museum. We prove this category by getting letters from relevant institutions explaining what you did and why your role was important. 4. You have a record of major commercial or critically acclaimed successes Here we show that you received critical praise for your work – this includes reviews, awards, or sometimes even measurements like views on social or media platforms Commercial success is proven through sales figures, whether of art, albums, tickets, or other quantifiable metrics 5. Received significant recognition for achievements from organizations, critics, or other recognized experts in the field In my experience, this is one of the easiest categories to prove. This is usually substantiated through reference letters we help put together from experts in your field. This should include a combination of people you have worked with and other who you haven’t worked with directly, but who know about your career and practice It’s very important for these letters to have specific examples of your accomplishments and explain how your work stands out from others 6. You have received a high salary or other substantial remuneration for services in relation to others in the field We prove this by showing that for your country, and for your type of work, your work sold for higher prices compared to others in your geographical location. If you are working as an art professional and have been paid for services such as art advising or curation, we can try to prove that you received a high salary or other compensation, compared to others. 7. Comparable Evidence if you work in a very niche discipline, the above categories may not apply. There may be other types of evidence that will be better suited to proving that you have distinguished yourself. However, I have found for most visual artists, the first 6 categories usually work well. O-1 Visa Petitioners Having discussed how you qualify as an O-1B artist, let us turn to the process of applying. You are not allowed to sign and submit the O-1B forms on your own. A US citizen, company or institution that is representing you as the “Petitioner” must sign and submit the application to USCIS, the agency that reviews and approves almost all work visas. An O-1B petition can be filed by the company or even person who is your direct employer, so that you can perform services for them – for example, creative direction, teaching, art advising, etc. The O-1 visa is unique among US work visas, because you can have one single “Petitioner” even if you are going to be doing work, projects, or shows for several different organizations. This special regulation gives much more flexibility to artists. When your petitioner files paperwork for the O-1B and you work for different projects and organizations your petitioner is called your Agent. This is the arrangement I use most frequently for visual artists. Let us turn to who is permitted to be your O-1B petitioner and/or agent. Who can be an O-1B Agent Any U.S,. citizen, organization, or company can be an agent/petitioner for the O-1B. This can even be a friend or colleague who has no involvement in your work. The O-1 agent/petitioner does not need to represent you in any other way – they dont have to be involved in negotiating, procuring or managing your work. They are only an agent within the framework of the immigration law. You do not have to compensate the agent/petitioner in exchange for this service, so there should be no extra financial burden for this part of the process. I use a very simple written agreement that the artist and the agent/petitioner sign. This agreement limits the obligations between the agent/petitioner and the artist. Any other dealings that the agent/petitioner and the artist have should be controlled by a separate, appropriate contract. Benefits of using Agent There are two major benefits to using an agent filing, as opposed to just having a petitioner. First, this allows you to file one single O-1B application for all of the creative work you will be doing in the US. You don’t need to file a different O-1B for each project or show. Second, you’re allowed to add or change projects, shows, and employers while in the US, without having to file any additional paperwork. This system can save a lot of money, time and stress. You don’t have to pay filing fees for every project. You do not have to convince employers or collaborators to commit to binding agreements, and you don’t have to wait for any paperwork to be processed before starting a new engagement. Itineraries and Employment Agreements Filing the O-1B with an agent gives tremendous flexibility, but you must still plan and document your work before you can file. USCIS wants to see that you will actually be coming to the US to continue your artistic work. You also have to show that you have enough pre-arranged plans to cover the full time you will be here. These plans are however allowed to change, be cancelled or added to once you are approved. As a result, we must submit an Itinerary of planned engagements in the US along with the agent agreement. The itinerary includes projects, shows, performances, promotional events, fairs, lectures, or any other services related to your artistic practice. There must be a contract, deal memo, or letter of intent for each item on the itinerary from a gallery, organization, venue, exhibition space, or from a creative collaborator with whom you will be working. The more prestigious and more high-profile your projects are the better they are for your itinerary. Also, everything in the itinerary must be related to your extraordinary ability, but this can also include related work like teaching or curating a show. An O-1 visa can be valid for up to 3 years. The events on the itinerary should cover the entire length of the period that you want to stay. For example, let’s say you want to move to the US for the full 3 year period. A gallery needs to provide a list with dates of shows, fairs, talks, and any other events that you will participate in. If you are going to be working on a series of commissions, these need to have deliverable dates over the course of the three years, not only within the first year. Preparation & Processing In this section I will look at how long it takes to prepare and process an O-1 visa, what happens when USCIS makes a request for additional information, how much are filing fees, and other general questions. (i) How long does it take to make an O-1B application? The application process will depend at first on you and your petitioner/agent, as you need to assemble all the supporting materials and letters I discussed. Then you have to choose between premium and regular processing by USCIS. Regular processing currently costs $460 USD and has no set processing time. It usually takes about 2-4 months. Premium processing currently costs almost $1500 additional, but has guaranteed maximum 15 day processing. (ii) Requests for Evidence Even with Premium Processing, there is always the possibility of delay if USCIS has questions about whether the material provided is enough to qualify for an O-1B. This is called a “Request for Evidence” or RFE. An RFE is not cause for panic – sometimes an RFE is issued only because documentation has been overlooked or needs some supplementation. USCIS usually gives a 3 month maximum deadline to respond to an RFE. Many RFEs are caused by lack of background information or detail about a production or publication. Sometimes an RFE is issued by an officer who simply has not done a good review of the documents. Part of the most important work that I do is making sure that everything is very clearly presented and backed up with credible information. I also make sure that no key details are missing that would lead to an automatic RFE. After the O-1B is approved, if you are outside the US, you will need to attend a visa interview at a consulate. This interview is usually routine but with the current immigration climate you should be prepared to answer questions about your petition. Some consular officers will decide to challenge whether you are really “extraordinary.” You may also be asked about past visits to the US or previous visa applications. Changing, Extending & Amending For most O-1B visas, you do not need to file a new O-1B when you change work and projects on your itinerary. However, if you filed with a single employer instead of an agent, you will need to submit a new or amended O-1B if anything significant about your employment changes. Significant or material changes include changing from full time to part-time or changing the type of work you will be doing. If you wish to extend your O-1, you must file a new petition before expiry of your current approval. Changing status – Filing in the US vs outside the US: If you are in legal status, you may be able to request to change your status within the US. If you entered on ESTA, you will have to leave and get an O-1B visa. If you change to O-1B status in the US, next time you travel you need to apply for a visa at a consulate before your travel back. Only Canadians are exempt from getting a visa to return to the US Validity Periods You can obtain an O-1 visa for up to three years. USCIS will only issue the O-1 for the length of events, engagements, or performances. When it is time to apply for an extension, you can file up to 6 months in advance of the expiry date. For the extension, you need to show new projects covering the next 3 years. If you are working on the exact same projects, or in the same position, the visa will only be approved for one additional year. New work & shows with the same gallery or organization is usually considered “new work.” So what do you need to start doing now to prepare for your O-1B What do you do if you are an emerging artist, or new to a particular field? How do you show that you are “extraordinary? There is no one specific way to build an O-1B-worthy resume. However, my experience shows that there are some key points to remember. Keep records of all your shows, engagements, performances – including copies of any promotional material and press releases. When it comes to projects and shows, bigger is not always better. USCIS will look at your role in a production or exhibition. A solo show with a smaller organization can be better than a group show with a high end gallery. Get your name in press pieces. Never say no to an article or interview, even with small online publications. If you are in a group show, try to get your work mentioned in press coverage of the show. This will help show that you play a “leading role” Build relationships. This is good for your career and for your immigration status. Keep regularly in touch with professors and mentors – this makes it easier to ask for testimonial letters down the road. Summary Coming to the US is only possible as part of the ESTA visa waiver program or on a Visa. It is very important to plan your trip well in advance and to have the right local partners. If you want to work in the US or stay for longer periods, you need a non-immigrant work visa Do not come to the US with the wrong visa, or fail to adjust your statues if your plans change. The consequences can be very severe. For artists, the most commonly used non-immigrant work visa is the O-1B “extraordinary ability” visa. To qualify for the O-1B, you need to show that you have set yourself apart from others in your field. You show this with documents such as articles about your practice, reference letters, and information about displays of your work The O-1B paperwork must be signed and filed by a person or legal entity in the US that is acting as your O-1B representative or “agent.” You must submit proof of the work you will be doing in the US, but you can add and remove projects once approved. Despite all of the complexity, US immigration law still wants talented creatives to visit and even work in the US. Nevertheless, because immigration law is very rule driven, you must take the time to understand what is required, and to work from the beginning with experienced and specialized legal counsel. Please contact me at artistvisa@stropheus.com if you have any questions, and I look forward to helping you realize your professional goals.

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Art Advising 2.0 : Vertigo & Accountability – Part II

Posted on July 14, 2015January 24, 2017 by admin

The rise of the art advisor tracks the globalization of art business. Art advisors act as a bridge to new classes of collectors, but the role is often not clearly defined. Gallerists, dealers, art fairs and collectors encounter a heterogeneous profession.

This event, held on April 1st, 2015 at Sotheby’s Institute of Art, explores current ethical and business questions that art advising creates and the legal obligations that their relationships rely on. Art Advising 2.0 — Vertigo & Accountability is a collaboration amongst Sotheby’s Institute of Art, the Association of Professional Art Advisors, and Stropheus Art Law.

Moderator: , Chair, Committee on Fine Arts, New York State Bar Association, Entertainment, Arts and Sports Law (EASL) Section, Attorney and Faculty at Sotheby’s Institute of Art

Panelists:
Sean Kelly, Sean Kelly Gallery
, Attorney at Stropheus Art Law
, Executive Director The Armory Show
, Megan Fox Kelly Art Advisory

A dedicated audio recording of Noah Horowitz’s comments precedes his text. A video of Megan Fox Kelly’s PowerPoint presentation can be found in the section on her presentation below.

Part I of this event is here.

Dr. Noah Horowitz

All right, I’m scared. The obligations are really serious. I’m going to principally speak from my capacity at The Armory Show, which I think which is may be most relevant. But, just to set the stage, I think there are a few, large picture items that Judith addressed, Sean addressed a little as well as Richard, that I think are worth hitting a little off the bat.

All of this growth, the reason there are 150 plus people probably here right now in the art advisory business probably has to do with the tremendous growth of the art market in its own right, and the rampant professionalization that we’ve seen in that space over the last 20 or 30 years or so. Sean mentioned through the outset of his career, really the art market, even in the 80s and early 90s was very small. He knew most people professionally implicated. Now that’s certainly not the case.

There are good things and bad things that happen with that. I’m a proponent, and I think most people in this room probably believe we’re in a better place because of those changes. That being said, it’s brought a lot of additional variables and uncertainties into the equation.

Art advisors in the simplest sense, in my estimation, generally provide a great deal of value. Again, [art advising] is not my professional occupation. That being said, I, like many people, probably have a lot of people asking them questions about the value of artworks and how to conduct themselves in the market.

One thing that struck me from early on when I was still in London, a friend of mine who is not a collector but a guy who’s made a fair amount of money on Wall Street had bought a winter home in the Swiss Alps and there was a gallery there who was trying to sell him a Damien Hirst print. He came up to me – and the gallery had given him the print, and it was already hanging in his living room – and basically he had very proudly shared with me that they had asked 16,000 Swiss Francs for it, and he had negotiated a thousand francs off of that price, and I said, “wait a minute, let me check Artnet quickly just to see if I can help you there.” And really you could see that the artwork – it was an edition of a 150 or so – I think five or six had come up in auction in the last year. The highest price achieved was $5,000 and four others were all bought in, with estimates from $4,000 to $6,000. I told him to offer the gallery $3,000, and that they’d be lucky if he bought it for that amount. He felt bad, he offered it at $5,000, and the email, which has since been deleted from my account, which is the problem with emails these days, was one of the funniest emails I’ve ever read. He forwarded to me from the gallery owner, who just absolutely lost it, and inserted a number of fiery words, which I won’t repeat here, into their response. Suffice it to say, my friend didn’t buy the work, and was already thankful for it.

The following year he went back to – I was with him, and we were skiing, I said, “Oh, let’s check out that gallery that you were talking about, just to see” – and the gallery was closed. So, the point there is: this was just 101 checking prices on Artnet, this wasn’t doing anything like Richard was referring to. I think that if advisors can help, great, the more efficient market in that sense, then that’s a good thing. And people like this, who are essentially trying to rip people off, shouldn’t be in business, and that’s a good thing as well.

There are other good things as well that art advisors provide beyond the obvious – certainly in my capacity as a fair, or really in the most basic capacity – any effort that we can make in our business to help raise people’s education about an appreciation of artworks is fundamentally a good thing. People often wonder why artworks are worth what they are and fundamentally it’s because there’s some knowledge about them. There’s an educational and an informational structure around them that creates that value. And if art advisors, like the great dealers and scholars over time, can help provide a baseline of that knowledge, that’s fundamentally a good thing.

That being said, the whole role and scope of the business have changed immeasurably. One bit of advice that I give to any dealer that comes and shows with us at The Armory that’s not from New York or the U.S. is that you’ll probably meet more art advisors at The Armory than any other fair you go to, and that’s generally true. We have an enormous volume of advisors at the fair and for a lot of our foreign dealers – I think that 55% -60% of The Armory galleries are coming from overseas, they’ve never seen anything like this. They’re used to dealing with some advisors – a lot of collectors with museum people – but the sheer number of people that are representing other people is very overwhelming to them, and a lot of them don’t know, frankly, how to deal with that.

We commissioned Clare McAndrew, who does a report for TEFAF, to do an exhibitor survey for us this year and a VIP survey, and actually we got responses back from that today, and discovered that 15% of the VIPs at The Armory Show claim that they are art advisors or consultants, which is maybe a little bit less than I thought it could actually be. Fifty to fifty-five percent said they’re private collectors, about 20% said they were art world professionals, which is basically, other galleries, dealers, curators, etc. The third biggest category was at 15%, which was art advisors and consultants.

That being said, when I talked to our VIP team to prepare for this – and I remember this in the office, when we were doing the Show this year – the number of new VIP requests we received from art advisors this year was just through the moon. I had them pull stats, and basically I’ve been told that 50% of new VIP requests to come to The Armory this year was from art advisors and consultants. Now that is a huge number of people who are writing to our vip@thearmoryshow account, trying to get access to our fair.

From my vantage point as director of the fair, in many ways this is a great thing. We can, through a single art advisor, speak to multiple different clients. And as our industry has become globalized and become faster and more people are in more places and less people can actually come to the fairs, having a really qualified art advisor at a fair like The Armory or any fair, auction or in any gallery for that matter is a good thing, because you don’t ever quite know who they’re representing, and they can speak to a client and buy on behalf of a client or take something back in six months and you might end up selling something without a client and that’s a good thing.

The problem is that it creates a lot of question marks and inefficiencies that our staff in particular – and I’m sure it’s the same in many other galleries and auction houses – have difficulties dealing with. When people write to us and request passes, we try to ask a number of questions. Where are you based? Who are your clients? How much money do you or they spend on art etc., etc.? And we do our best to filter and provide access accordingly. That doesn’t always go to plan.

One of the things I discovered this year – I don’t even know how I discovered it, I think I was just on Facebook or something – but all of the sudden there was some art advisory firm offering up free Armory VIP tickets on Facebook and Twitter. I then put that into our VIP account and I found a long correspondence where there was a big email chain from January or February where they introduced themselves as a new art advisory firm. We were told that they were buying 5 to 7 million dollars of art for their clients, annually and they basically listed every major art fair and every major artist under the sun as who they’re buying for. And yet, there they were, hawking Armory VIP passes on Twitter.

Now I have no problem with people offering passes to qualified people, but when Sean Kelly, who exhibits with us comes up to me, “Why on the bloody earth is this student asking me – at 12:30 PM of opening day of the fair – for information about Antony Gormley or something like this for his student project, that doesn’t help me do my job, and doesn’t make him particularly happy either.

Judith: Hopefully, not one of my students. [Laughter in the audience]

Noah: I think it was. [More laughter in the audience]

And I think that there’s a large misperception about why fairs ask these kinds questions, I’m not sure why the other auction houses and others ask these questions to is: Who are your representing? What are their names? Yadda, yadda, yadda. And I can totally appreciate and certainly understand certain aspects around client confidentiality and not wanting to show your hand. At the same time, unlike auction houses, we don’t take a commission on sales. We’re just a facilitator between buyer and seller, and the more information we have about who you’re bringing to the fair, the better job we can do in terms of filtering and tiering access to art dealers. Because what we want to create is a steady flow of qualified clients coming into the fair throughout the course of the week. And we don’t know that it becomes convoluted. People can get upset with us because they have too many students coming in when they should be dealing with high level advisors and high level museum trustee collectors.

So, that’s just something I’d say on that.

I think the other side of that as well is that I’m a believer fundamentally in business in life, that the more information you can put out there the better it is for everybody. I think that advisors are always worried somehow we’ll get a client’s information and then in the following year, they’ll be in our VIP system and they’ll get a VIP pass directly and they won’t have to mediate through an advisor. At some level of course, that’s true. But at the margin I think that the more collectors feel, or anybody feels in terms of going to galleries and going to fairs, the more likely they are to purchase work and be an active and serious participant. So, I don’t believe that advisors should be screening or as controlling. Maybe their business can benefit in the long term by having more actively engaged clients who are more comfortable going to fair and galleries generally.

Big picture thinking, I think that one thing that’s a concern, certainly to me wearing a bit more of an academic hat, is a lot of criticism around the fact that with this huge influx and increase in art advisors representing collectors nowadays there’s a risk, perhaps, that collectors are not thinking for themselves as much, or in fact, that collections are getting built in a like-for-like fashion.

As a result, you have certain people with certain kinds of tastes who are building collections and advising on behalf of collectors and somehow, things are starting to look the same. I think that’s a legitimate risk. I don’t think that it’s attributable uniquely to the advisor business, but it is something in our general business that needs to be addressed. And so I just sort of throw that out there, maybe that’s an interesting talking point.

Generally, what I’d say as a final note is any effort to create a more professionalized association for or professional networks for advisors, which is something that Megan will address, is a good thing for the market. Speaking on behalf of the fair, the more associations that we can liaise with and coordinate with in lieu of one by one basis individual collectors is certainly a beneficial thing, and I’d like to think there will be more such developments to come. And this is something more for the future, as the business increases; we’ll see more associations that are working in a more professional capacity. And that, by the way, is a good thing.

So I think I will stop there, and I think we will have fun conversations after.

Megan Fox Kelly

The Association of Professional Art Advisors (APAA) is a not-for-profit organization comprised of leading independent art advisors, curators and corporate art managers. The association set standards of professional practice which all of its member advisors follow. To date the APAA has more than 100 members who are advisors and curators, building and maintaining art collections for both private collectors and major corporations. As advisors, we are objective advocates who work solely for our clients, and unlike art dealers, do not maintain inventories for sale nor represent artists. APAA members are active in all sectors of the art market, purchasing art for their clients at galleries, auction houses, fairs and online. Our organization conducts periodic member surveys which assess the total dollar values members spend on behalf of their clients in various sectors of marketplace.

Below is a breakdown of the APAA members purchasing activity in the fine art market from 2010-2013.

• 36% of APAA’s members purchased nearly $640 million in works of art at galleries between 2010 – 2103 — an 80% increase over the amount purchased between 2005 through 2010.

• 33% of APAA’s membership purchased nearly $194 million worth of art at fairs between 2010 and 2013.

• 18% of APAA’s members purchased nearly $192 million worth of art at auction – a 4% drop from 2010.

• 8% of APAA’s members purchased $829,000 worth of art on-line in 2013 –a first time measurement.

APAA’s code of ethics is a guide for best practice and is signed by ever member on an annual basis. It is covered by several key principles:

• APAA advisors are not dealers, and as such, they do not maintain inventory for sale, accept artwork on consignment or act as private dealers in any transaction.

• APAA members maintain lawful practices, complying with state and federal laws in taxation, exercising due diligence in researching the provenance of recommended acquisitions, and refusing any requests by clients or vendors to subvert the law in any fashion.

• APAA members should not perform services that would be, or appear to be, adverse to the interests of his or her client unless those services are fully disclosed to the client and the client provides advance consent to the services in writing.

• APAA members do not accept financial compensation that creates a conflict of interest between the member and their client.

• APAA members do not solicit or accept compensation from service providers or vendors.

Advisors are not dealers, and as such, they do not own or represent inventory. While dealers advise clients and museum curators advise their patrons, they are different from professional art advisors who are hired to assist their clients (private or institutional) in building and caring for their collections, or helping them to sell their collections. An art advisor has a fiduciary duty to represent their client’s best interests at all times, not their own interest or the interests of a dealer, artist or auction house.

An advisor’s fees should be completely transparent. Fee arrangements remain at the discretion of the advisor, provided the advisor is always paid from one source, preferably their client. The advisor can be paid either salary, retainer, hourly fees, fees based on percentage of sales, or a combination of these payment methods. A good advisor will also disclose his or her fee arrangements to dealers and auction houses with whom they interact on behalf of their client. Therefore, they become a facilitator on behalf of the client and the dealer, auction house, or artist with whom they are working, rather than an obstruction.

Advisors should always maintain written agreements with their clients that outline the nature of the advisor’s work on the client’s behalf, and that contain a clear recitation of how the member will be compensated. Invoices to clients should clearly delineate the amount of compensation due to the advisor.

Furthermore, an advisor does not perform services that are averse to the interests of their client and avoids conflicts of interest, including direct and indirect financial interest in a transaction involving their client. If they find themselves in such a situation, they must disclose the conflict to the client.

An advisor is an expert in their field and does not provide advice in areas that are outside of their expertise. Instead, an advisor can bring in outside expertise to assist their clients. When completing any project for their client, an advisor’s research is careful, informed, and performed at the highest level. They must exercise due diligence in verifying the accuracy of information supplied to their clients, regarding works of art including: the date of a work, its provenance, exhibition history, and publication records. An advisor is careful to not provide services regarding stolen works of art.

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