UPDATED at 11:45 am on March 4th to include commentary from the Future of Music Coalition.
UPDATED at 4:00 pm on March 4th to include new statements from SXSW and boycotting artists, as well as commentary by NPR.
UPDATED at 6:55 pm on March 4th to include further expert source commentary from reporting at Good.
As you’ve probably noticed, SXSW is in the middle of a controversy that has a number of artists concerned, and in some cases even threatening a boycott against the event. If you’re having a difficult time keeping track of what’s going on, and figuring out whether or not it’s true that SXSW is threatening to deport international artists who play unofficial showcases, don’t worry, you’re not alone. We are doing our best to make sense of the situation, and we will be updating this post with more information as it comes in. But here are the basics.
On Thursday, March 2nd, official SXSW artist Felix Walworth of Told Slant tweeted an excerpt of SXSW’s “invite letter,” saying that because of language about potential repercussions for artists who play unofficial showcases, Told Slant would no longer be performing in an official capacity at SXSW:
After looking through this contract sent to me by sxsw I have decided to cancel Told Slant’s performance at the festival pic.twitter.com/rI2Xv0duJl
— Told Slant (@Felixixix666) March 2, 2017
That tweet went viral and prompted responses from a number of other musicians, including Killer Mike, Downtown Boys and Ted Leo, who posted an open letter threatening to boycott SXSW unless the language is removed. Not long after Told Slant’s tweet went viral, SXSW Managing Director Roland Swenson spoke to the Austin American-Statesman, with the Statesman’s Peter Blackstock reporting
Festival organizers say they have never reported a band to immigration for playing an unsanctioned event and managing director Roland Swenson told the Statesman on Thursday that the festival is simply “telling the acts what immigration (authorities) would do” if terms of the visa were violated.”
Swenson also spoke with Kevin Curtin at the Austin Chronicle and initially claimed “the images of the contract that Walworth posted are two different parts of the agreement cut and pasted together in a way that is misleading and out of context.” However, after Walworth posted a video scrolling through the contract, Swenson emailed the Chronicle to correct his previous statement, adding he “mistakenly thought an artist agreement had been altered, when in fact Walworth was referencing the ‘invite letter.'” Nonetheless, this mistake on Swenson’s part (and Swenson’s accusation that Walworth was only doing this for publicity) arguably escalated the situation and led to a number of artists speaking up; notably, SXSW’s most recent statement does not include an apology to Walworth, only an apology for incorrectly claiming Walworth took the contract out of context. Which leads us to…
Is SXSW Deporting Artists for Playing Unofficial Shows?
The short answer is no, not that we’ve seen. As Swenson told the Chronicle
“We’ve had these restrictions in the agreement for about five years and never had to enforce them…It’s intended for someone who does something really egregious like disobeying our rules for pyrotechnics, starts a brawl in a club, or kills somebody. You have to really fuck up for us to do this stuff. “What people don’t understand is that we’re already talking to immigration about all these bands…Most of these bands are here because we sort of sponsored them. So if somebody did something bad enough that we had to enforce this part of the contract, we would probably be obliged to notify immigration that ‘Hey these guys are trouble,’ but we’ve never had to do that.”
That said, Ovrld can attest that a number of international artists have expressed fears of being deported or getting banned from the country for up to five years, and did not seem to believe that was only a possibility if they committed serious crimes: In our opinion, the main issue at play here is not whether SXSW is actually participating in the deportation of artists, but whether it is crafting its communications in a way that encourage artists to believe they could be deported for non-crimes, and whether SXSW is under any actual legal obligation to report acts for violating their contracts.
What Do Experts Say?
This part is tricky, because at the moment, while we believe SXSW is using the visa waiver program with lesser known international artists, some aspects of that program don’t match up to how SXSW is practicing it (more details on that later). Likewise, Swenson’s comments about the exact details of the visa have been confusing at best. Swenson told the Chronicle that bands are at risk if they are
“playing shows other than their showcase, which, if they come in on the kind of visa that most of them get – they’re not supposed to do that…All this stuff in there about getting deported and immigration – that’s just us telling them this could happen if you’re doing this other stuff. It’s not us saying we’re going to try and have you deported, it’s us warning them that if they violated the terms of the visa that got them here, that’s what could happen.”
The Statesman got a slightly more detailed response from Swenson, reporting that Swenson told them “Most South by Southwest acts are able to perform here on the condition that they’re not getting paid and they’re not doing any other shows than ours,” with the SXSW Managing Director going on to say “That keeps them from having to go through getting a work visa and all that, which is time consuming and expensive.” The Statesman also reported that “festival organizers say they are required to work with ICE when arranging visas for performing artists.”
And yet, according to the State Department, while the visa waiver program states “you may not be paid by any source in the United States with the exception of expenses incidental to your stay,” and thus seemingly backs up the non-payment aspect of Swenson’s statement, that does not necessarily restrict artists from playing for free on unofficial showcases and does not seem to indicate SXSW has any obligation to report acts that play unofficial showcases to any authorities. [If we or anyone else discovers any legal precedent for this or language that requires this, we will update.]
In fact, PBS Newshour’s Elizabeth Flock quoted New York entertainment lawyer Deborah Hrbek as saying “That is far beyond what they as a citizen or company would be obliged to do.” Entertainment lawyer Brian Goldstein of the firm Goldstein & Guillams also told Newshour the language of the contract appeared “more oblivious than nefarious,” adding “It’s not common. It’s not standard. And it goes far beyond what is necessary.” Elsewhere, Good quotes from Lance Curtwright, “a South Texas-based immigration attorney and partner at De Mott McChesney Curtwright and Armendáriz,” as saying “I’ve never seen a deportation clause in a statute like this. SXSW to my knowledge is an independent group and has absolutely no authority or ability to enforce immigration laws.”
Billboard (in an article originally published at SPIN) now has a quote from Matthew Covey “an attorney who specializes in securing visas for foreign artists who hope to perform in the US,” stating
“A few years ago SXSW…took the stand that artists could enter the U.S. to perform at SXSW without employment visas under a narrow exception to the law carved out for performances that are effectively auditions–‘bona fide industry showcases’… The problem however is that the applicability of the ‘showcase exception’ to SXSW is something of a legal grey area, given that SXSW is kind of an audition, but it’s also kind of a party.”
This is in line with what we pointed out about the inconsistency of SXSW’s details of the visa waiver program and what we read in that program’s official language. Billboard reported Covey claimed that this flexibility is “only because the U.S. Department of State and Customs and Border Protection is “playing ball,” using a wide interpretation of the law because it understands that SXSW is a boon to the economy.” Covey went on to tell Billboard “the government could just as easily change its mind if it sees that bands are abusing the showcase exception, claiming to play only SXSW “but actually entering to do a zillion other gigs that are nothing like ‘auditions.'” In the end, Covey argued that
“In the current climate any concern SXSW may have regarding the abuse of the showcase exception could be better addressed in other ways. The passage seems pointlessly threatening, and—importantly—it is counter the trend of progressive organizations creating ‘sanctuary’ spaces. I can’t see a reason to keep the passage in the invitation, and there are certainly very good reasons to remove it. SXSW should remove the offending passage and offer to amend their agreement with all currently invited international artists.”
Similarly, when the Statesman spoke to Dart Music International’s Dave Dart about whether it was true that playing unofficial shows might make artists vulnerable to ICE deportation, he said
“Generally speaking, up to this point, it’s not something that’s been really scrutinized. But customs agents have a pretty good degree of latitude, so if someone decided they didn’t like something there, they could potentially turn someone away.”
Dart maintained that SXSW was not “the bad guy” (and for what it’s worth, Chad Swiatecki at civic news site The Austin Monitor did report that Dart was “disappointed to learn that the festival had backed away from plans he’d heard about to loosen the language directed at international visitors”). But given his remarks and the remarks of other entertainment law experts with visa familiarity, it’s not difficult to see why artists were concerned, and why Swenson’s remarks have done little to assuage them, particular since Austin is a battleground for the fight between local authorities and ICE, and has become the top city for ICE arrests of non-criminals.
On the local level, there is also the concern that SXSW is doing this to curtail the rise of unofficial showcases. In his own breakdown of the situation, Kevin Erickson, the National Organizing Director of The Future of Music Coalition, argued that SXSW’s contract had explicit language seemingly penalizing artists for unofficial show bookings but not the more egregious activity Swenson detailed. Erickson argued that in his experience with the visas SXSW is utilizing with some international artists, “What matters is whether the performance fulfills those [B1 and ESTA visa waiver] requirements [outlined by the State Department]. It doesn’t matter, legally speaking, whether it is affiliated with the festival.”
By contrast, NPR has a different view on the visas, arguing
“Non-work visas for international travelers allow for the solicitation of future business. (A band invited by SXSW to play a non-paid showcase that may result in future bookings for an artist would qualify — but the rules prohibit any work that results in payment, including playing a show for any amount of money, or playing additional shows not covered by the original invitation.)”
On a more anecdotal level, Billboard quoted “a manager of an indie label who preferred not to be identified,” who “believed the contract terms were financially motivated, and that the festival’s focus on keeping bands away from official shows is ultimately detrimental.” This unnamed manager went on to state something we’ve heard from a number of other behind the scenes figures:
“When I heard that this language had been in the contract for the last five years or so, that immediately made me think of the timeline of when SXSW started cracking down on unofficial showcases. That was when you saw showy big money coming in from brands, like the huge Doritos stage and other big sponsored areas. Suddenly there was a lot of interest in protecting the interests of those brands by harshly discouraging brands against playing unofficial shows.”
Regardless of whether SXSW actually designed this clause to scare bands away from playing unofficial showcases, the organization will need to put in considerable work to convince the booking community that they are not using questionable methods to limit unofficial showcase bookings, particularly since SXSW “has been known to notify city authorities about permit violations and other problems” at unofficial shows in the past, as the New York Times reported in 2011 with their profile on Fader Fort. It’s also worth noting that this type of behavior against unofficial shows was also at the heart of the controversy SXSW faced in 2014 after they hired international design and planning firm Populous to recommend ways to grow the festival.
What Happens Now?
We know that some of our local media peers are currently getting clarification and documents from SXSW that will hopefully give better insight on the visa process international artists who are only playing SXSW and not conducting separate tours utilize, but until then the focus remains on SXSW’s communication struggles and the anxiety that has provoked in artists. SXSW now seems somewhat more aware of this and according to Rolling Stone the festival organizers “would be ‘reviewing and amending’ the language in the contract for 2018 and the future.” However, it remains to be seen what impact this will have on SXSW’s reputation, which took a similar blow in 2015 because of how it handled an issue with sexual harassment in the games community. The boycott letter we mentioned at the start currently has more than fifty artists involved, and the number of artists (and media reporting on them) coming out against SXSW’s policies and communication seems to be growing, not diminishing.
Those artists have also now openly responded to SXSW’s most recent statements, explaining why Roland Swenson’s remarks about needing to report bands that act out with, say, “pyrotechnics” or brawling come across as not just “insensitive” but “utterly misleading,”
“Not only is he playing into the xenophobia emanating from the White House by raising the spectre of unruly or criminal acts by non-US bands, he’s blatantly misrepresenting what the clause says and its intended use.
Starting a brawl in a club is already illegal. If an artist were to do that, there is a clear way that the legal system and immigration officials would deal with it. There is no need for a contract clause like this to prevent that, and absolutely nothing requiring SXSW to narc on bands who are at risk for deportation.
The sections of the contract in question say nothing about violence or disruptive behavior. They’re clearly intended to scare performers away from playing at unofficial shows that the festival sees as potentially damaging to their profits.”
This group of artists then reitereated what they expect from SXSW now
“We need them to remove the threatening clauses from their contract, apologize to the artists, and commit to doing everything in their power to protect the people who make their festival awesome from overzealous immigration authorities. Musicians are talking, organizing, and getting ready to fight. It’s time for SXSW to listen.”
Unfortunately, as was the case with SXSW’s GamerGate issues, this situation has now apparently attracted the attention of antagonistic networks like Breitbart, and Walworth is reporting death threats are coming in, so we expect this controversy is going to escalate. We will keep you posted of any new details.
Morgan Davis sells bootleg queso on the streets of Austin in order to fund Loser City, the multimedia collective he co-runs. When he isn’t doing that, he gets complimented and/or threatened by Austin’s musical community for stuff he writes here at Ovrld, which he is the Managing Editor of.