UPDATE: SXSW to review and amend immigration language in artist contracts

UPDATE: Saturday, 10:53 a.m.

South by Southwest organizers have issued a new statement about the controversy surrounding immigration language in their contracts that caused one artist to cancel an appearance at the festival and many others to sign an open letter to the festival demanding the language, perceived as a threat to report foreign bands to immigration officials for playing unofficial events, be changed.

“The language in our Performance Agreement is intended to facilitate U.S. entry for international artists and to show CBP (Customs and Border Patrol) that SXSW takes visa issues seriously,” the statement reads. “This language has been part of the contracts since the summer of 2013, and we will be reviewing and amending it for 2018 and beyond.”

The statement also includes a direct apology to artist Told Slant, who first drew attention to the contract language by sharing a screenshot from a SXSW invitation letter in a tweet about the band’s decision not to play the festival. As of Saturday morning the tweet has been shared over 3700 times.

“In regards to the situation surrounding Told Slant, before we had clarity on the situation we believed this artist had taken our language out of context. We apologize for this error,” the statement reads.

The festival came under fire, after managing director Roland Swenson originally alleged in interviews that the screenshot had been doctored to make the contractual language look worse than it actually is. When he caught his mistake, Swenson quickly clarified his position to media outlets who reported the incorrect information, including this one. Told Slant posted a video demonstrating the shot had not been edited.

The statement also reasserts the festival’s opposition to President Trump’s travel ban. “In this political climate, especially as it relates to immigration, we recognize the heightened importance of standing together against injustice,” it says.

Full statement from SXSW:

SXSW opposes discrimination of any kind, and has taken a public stand against President Trump’s travel ban and proposed legislation like SB6 in Texas. We have and will continue to support human rights for all. In this political climate, especially as it relates to immigration, we recognize the heightened importance of standing together against injustice.

SXSW has never reported anyone to any immigration authorities, including Customs & Border Protection (CBP), the agency that deals with participating artists entering the United States.

Participation from individuals and organizations who bring a different perspective — especially those who travel from all over the world — to Austin each March is what makes SXSW a special event.

We have been coordinating with international acts coming to SXSW to try and mitigate issues at U.S. ports of entry, and will continue to build a coalition of attorneys to assist any who face problems upon arrival in the States.

The language in our Performance Agreement is intended to facilitate U.S. entry for international artists and to show CBP that SXSW takes visa issues seriously. This language has been part of the contracts since the summer of 2013, and we will be reviewing and amending it for 2018 and beyond.

In regards to the situation surrounding Told Slant, before we had clarity on the situation we believed this artist had taken our language out of context. We apologize for this error.

A major reason for SXSW’s existence is the discovery of new and exciting artists from around the world, and our hope is that we can help these creative people achieve their goals.

UPDATE: Friday, 12:45 p.m.

A group of artists has penned an open letter to the South by Southwest Music Festival expressing outrage about a perceived threat of deportation leveled at international artists. The letter, signed by 50 artists, including Ted Leo, Kimya Dawson and the bands Girlpool, PWR BTTM and Shannon and the Clams, demands that South by Southwest “rescind the portion of their contract that states that if they found out that an artist is playing an unofficial showcase they will ‘notify the appropriate U.S. Immigration authorities of the above actions,’ and ‘accepting and performing at any non-sanctioned events may result in immediate deportation, revoked passport, and denied entry by US Customs Border Patrol at US points of entry.’”

Ben Hopkins of PWR BTTM performs at Cheer Up Charlie's during SXSW 2016. The band is on the roster to return for the 2017 festival. JAY JANNER / AMERICAN-STATESMAN

Ben Hopkins of PWR BTTM performs at Cheer Up Charlie’s during SXSW 2016. The band is on the roster to return for the 2017 festival. JAY JANNER / AMERICAN-STATESMAN

The language in question is in the contract artists sign and the invitation letter that festival organizers send to accepted bands that was publicized by Brooklyn artist Felix Walworth who leads the band Told Slant. It is included in a section of the letter that contains a list of other actions the festival can take if an artist acts “in ways that adversely affect the viability of their official showcase,” including pulling the act’s festival credentials and canceling any hotel rooms booked through the fest.

The festival’s exclusivity clause has long been a sore spot for U.S. artists who complain about the financial strain of travelling to the festival for what essentially amounts to an unpaid gig. SXSW artists receive either a small stipend for their showcase or a music badge and musician wristbands that grant access to the festival and conference programming. A SXSW Music badge is currently priced at $1325.

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.”

This is not the way artists are reading the contract, Morgan Davis, editor of the Austin music blog Ovrld says. On Thursday, he tweeted a screenshot of an email interaction with a band one of his partners was trying to book onto a showcase sponsored by his blog. In it, the unidentified artist’s management says that they are limited to official SXSW showcases as they are travelling on a visa waiver because a U.S. work permit “costs more than their flights.”  The manager goes on to say they can be deported and face a five-year ban for playing an unofficial showcase.

“The issue right now with SXSW is not whether this policy was new, or even whether SXSW is legally right to have this policy,” Davis wrote in a Facebook post on Thursday night. “The issue is that SXSW phrased a communication in a way that made international artists believe that they were being threatened with deportation if they played unofficial shows.”

The open letter from the artists also demands that “SXSW must publicly apologize to the community for their attempt to collaborate with Immigration and Customs Enforcement.”

Festival organizers say they are required to work with immigration officials when arranging visas for performing artists, but specified that they work with Customs and Border Patrol agents at airports. “We actually have never had any dealings with ICE,” SXSW managing director Roland Swenson said Friday.

UPDATE: Friday, 2:45 p.m.

Dave Dart, whose nonprofit Dart Music International has helped bring international artists to the United States for years, said Friday that he’s mostly sympathetic toward SXSW’s intentions with the language in its agreements.

“I don’t know how un-scary you can make it,” he says. “When I speak to bands, I think I may be more blunt, because the possible consequences for violating the immigration rules are very severe.” Artists can be banned form entering country for 10 years, or declined entry and sent home at their own expense, he said.

We asked Dart whether he believed SXSW had much leeway to revise the controversial language. “That’s a hard call,” he answered. “We’re all sort of in limbo after the executive order, and then there was talk that they had revised it, but then they’ve withdrawn it and it’s kind of sitting there. So I don’t know what they’re going to do.”

We also asked Dart about the veracity of SXSW contract’s assertion that artists using non-work visas who play any “public or non-sanctioned” shows may make them vulnerable to ICE deportation. “Generally speaking, up to this point, it’s not something that’s been really scrutinized,” he said. “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.”

Beyond what’s in the contract is the reality of what has happened at the festival in the past. “What that guy [Felix Walworth] insinuated was that the festival would go turn people in. I’ve never heard that,” Dart said. “South by Southwest has been a great platform for international artist for years and years. They provide an opportunity for bands to get here, and it accomplishes really good things.”

Ultimately, most everything still boils down to the uncertainty that’s common to immigration practices, a ambiguousness that’s been intensified by the recent executive order. “One of my favorite quotes about this stuff is, ‘It works until it doesn’t work,’” Dart said. “The nightmare is being in another country where you don’t speak the language and all of a sudden you’re being stopped and grilled for something you don’t completely understand.

“I think it’s just got people on edge. It’s easy for people to start looking for the bad guy. Something didn’t sit right with [Walworth], so he created a storm trying to say that the festival is a bad guy. And I don’t think they are.”

[ORIGINAL STORY is below, plus an official statement from South by Southwest.]

A tweet from a Brooklyn-based musician put the South by Southwest music festival in the middle of the immigration debate on Thursday. “After looking through this contract sent to me by sxsw I have decided to cancel Told Slant’s performance at the festival,” said the tweet, accompanied by a photo reportedly of a portion of the standard contract sent to showcasing artists.

The tweet was shared more than 600 times in two hours. Told Slant followed it with a call for artists to boycott the event, which long has had a large contingent of international showcasing artists.

South by Southwest managing director Roland Swenson said Thursday afternoon that the language posted to Twitter comes from “two different parts of the artist agreement” that were pasted together to portray what he called “a much worse impression than what is real.” [Update, 6 p.m.: Swenson later clarified that although the language appears in two different places on SXSW’s official artist agreement, those two sections did appear in sequence on SXSW’s invitation letter.]

RELATED: SXSW showcase highlights music from countries affected by travel ban

Regarding the lower section that cites rules for international artists entering the country through various non-work visa programs, Swenson said this is simply SXSW “telling the acts what immigration (authorities) would do” if terms of the visa were violated.

“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, “Swenson said. “That keeps them from having to go through getting a work visa and all that, which is time consuming and expensive.”

(Stephen Spillman / for the AMERICAN-STATESMAN)

South by Southwest runs March 10-19. Stephen Spillman for AMERICAN-STATESMAN

The upper part of the tweeted image came from a different section of the contract that applies to performers or their representatives who “have acted in ways that adversely affect the viability of their official SXSW showcase.”

Swenson says the potential SXSW actions that follow — including revocation of credentials and hotel reservations, or potentially notifying immigration authorities — might be invoked only “if somebody did something really horrific, like disobey rules about pyrotechnics, starting a brawl, or if they killed somebody.” He claimed that SXSW has never had to take the actions cited in the contract, and added that those details have been in the contract for years.

“In the post-Trump era, it looks different than how it was intended, and how it was received in the past,” he continued. “But we’ve come out strongly against the travel ban, and we’ve really been going the extra mile to make sure these bands don’t get screwed over when they enter the country.”

UPDATE, 5 p.m.: SXSW Official Statement, attributable to Roland Swenson, SXSW CEO and Co-Founder:

SXSW has been vocal in its opposition to President Trump’s Travel Ban and is working hard to build a coalition of attorneys to assist artists with issues at U.S. ports of entry during the event. We have artists from 62 countries from around the world performing and have always supported our international music community. We have never reported international showcasing artists to immigration authorities.

We were sorry to learn that one of our invited performers chose to cancel his performance at this year’s SXSW Music Festival due to a misunderstanding of our policies regarding international artists.

We understand that given the current political climate surrounding immigration, the language that was published seems strong. Violating U.S. immigration law has always carried potentially severe consequences, and we would be remiss not to warn our participating acts of the likely repercussions.

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.

The SXSW Performance Agreement states:

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:

     Artist will be removed from their official SXSW showcase and, at SXSW’s sole option, replaced.

     Any hotels booked via SXSW Housing will be canceled.

     Artist’s credentials will be canceled.

     SXSW will notify the appropriate U.S. immigration authorities of the above actions.

We hope never to be put in the position to act on this. Indeed, we spend a great deal of time communicating with international artists concerning numerous issues, including how to avoid issues at U.S. ports of entry.

Moreover, there is language in the Performance Agreement which 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.

As such, both to protect SXSW and the interests of all the participating artists, we long ago added this language to our Performance Agreement:

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

MORE ON AUSTIN360.COM: Full coverage of SXSW 2017

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