SxSW Contract Language Causing Alarm in the Wake of Muslim Ban

“We’ve had these restrictions in the agreement for about five years and never had to enforce them,” Roland Swenson, South by South West (SXSW) Managing Director, told the Austin Chronicle in response to the recent controversy over the “Deportation Clause” included in the artist contract for the SXSW music festival. The story erupted after Told Slant artist Felix Walworth tweeted, “After looking through this contract sent to me by sxsw I have decided to cancel Told Slant’s performance at the festival,” and included a screen shot of the contract invitation. One bullet point of the contract in question reads, “SXSW will notify the appropriate U.S. immigration authorities of the above actions. International Artists entering the country through the Visa Waiver Program (VWP), B Visa or any non-work visa may not perform at any public or non-sanctioned SXSW Music Festival DAY OR NIGHT shows in Austin from March 13-19, 2017. Accepting and performing unofficial events may result in immediate deportation, revoked passport and denied entry by US Customs Border Patrol at US ports of entry.”

To many, this clause is extremely threatening. Yet, Swenson claims that the clause is only included for incase “somebody did something bad.” Then, SXSW might have to enforce the clause, but he reassures that, “we’ve never had to do that.” This brings up multiple questions, one of which being, why include such a clause if there is no intention of ever enforcing it?

Swenson explains that the restriction has actually been included in the contract for the past five years. He claims that the clause is 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.” Future of Music notes that this type of “exclusivity clause” also known as proximity clauses, are “pretty standard for bigger festivals.”

However, Future of Music also notes that although SXSW’s statement claims that this clause is intended 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,” there is no actual mention of safety issues included in the actual language of the contract.

This brings up the question again- why include such a clause? Swenson claims 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.” Yet again, Future of Music points to some issues with this argument. For example, if the clause was truly intended to warn artists, then why has it been included in the section regarding “exclusivity?”

It is still not completely clear what the true intentions were for the clause. However, in lieu of President Trump’s travel ban, SXSW should have been aware of the heightened fear surrounding immigration laws and policies. So although the clause has been included for years without much attention, it now is being interpreted and understood in a completely new context.

Further, even if SXSW claims they do not have plans to enforce the clause, the reality is that the burden still falls on the musician. We should not have a protocol of artists signing something just because the other party claims they would never enforce a part of a contract.

So, although these issues brought up about the theoretical deportation wording of the contract was a legitimate concern, we have now seen very real ramifications of the changes in immigration policies. Although not directly related to the SXSW contract clause, the U.S. immigration policies have directly affected the music festival. Conversely, the clause contributes to an already hostile environment caused by the new immigration policies.

For example, NPR reported just days before the festival that three bands slated to perform at SXSW were blocked from entering the U.S.

And it is not just artists from the seven Muslim majority countries that are being affected by tightened immigration screenings. Italian band “Soviet Soviet” was denied entry and deported. In this situation, Soviet Soviet was attempting to enter the U.S. under ESTA, or the Visa Waiver Program. This program is designed for travel into the United Stated that does not involve paid work. However, it appears that the U.S. agents argued that the band needed work visas, because some of the performances included admission fees.

Immigration attorney Brian Taylor Goldstein, wrote in his article, “Given that the new Order specifically requires heightened vetting and screening of those ‘who seek to enter the United States on a fraudulent basis’, there is going to be even more scrutiny and less forgiveness than ever before with regard to artists attempting to enter the US on visitor visas (B-1/B-2) or through the Visa Waiver Program (‘ESTA’).”

Similarly, Icelandic band “Oyama” was booked for a tour in the United States with the St. Louis band, “Foxing” but was forced to cancel because one member was denied entry into the United States. She was also attempting to travel with ESTA authorization. However, just days before she was supposed to fly into New York she noticed that her status had been changed, and that she was no longer authorized to travel to the U.S. She contacted the U.S. embassy in Iceland, her airline, and the ESTA office. She even met with the U.S. consular in Reykjavik, but received no answers as to why she was not authorized to enter the country. She explained that the whole ordeal was devastating, and that she hoped to travel to the U.S. again, “but probably not for another tour.” She believes it is too expensive to risk something like this happening to her again.

It does appear that the ESTA visa has caused artists problems in the past. This is likely because it does not allow work, and U.S. immigration may argue that musicians’ playing a show falls under this category. However, it also seems that this policy is being much more strictly enforced under the Trump administration.

It is understandable why some reacted to SXSW’s clause so strongly. Under strict immigration policies, there should be more support for artists that want to work internationally. In order to do this, arts organizations should work more closely with artists to create policies that are fair, and don’t perpetuate uncertainty and fear.

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