Some countries may require particular information and materials to assess an entertainment visa application if they are of the view that there are character concerns of an applicant related to past criminal charges.

Here we have provided some information and guidance for the drafting and collating of supporting materials for addressing those concerns as they relate to a criminal history. 
​
CHARACTER STATEMENT AND CRIMINAL HISTORY

With criminal issues, police certificates will need to be obtained to make sure all offences are referred and responded to. If there are any charges or convictions not included in the police certificate, these should also be addressed, if there is an online record of those charges.  

An assessing country may research an applicant’s history as well, including sources such as news reports, Wikipedia, and possibly international agencies. Missing an offence or issue can jeopardise the application or cause extra delay or a second statement to be requested.
A personal statement in your own words own words, indicating what happened in the circumstances of each issue identified in the police report or elsewhere. This will help to provide context that is not in police certificates or reported media.

The statement will also need to provide details from after the offences (the charges or convictions), the outcome of those offences (eg. if a fine was paid, or completed rehabilitation, jail time etc). It is also important to outline what effect the event had on the applicant’s life, particularly when it was life changing, for the good. The length of the statement will depend upon the applicant’s personal circumstances.

For each item that appears on the police certificate, please include the following information:

1. At that time how old you were, where you were living, were you working, any particular family issues going on. etc
2. Dates of offence and conviction (if relevant);
3. Offence/Incident – What happened i.e. account of the events leading up to and including the offence, and reasons for the behaviour;
4. Full details and comments of any sentence or penalty imposed (the consequence). This includes but is not limited to: details of fines, police or home detention, community service, probation, or imprisonment;
5. Was the sentence/fine etc fulfilled (if relevant). This should include details of how and when the consequence was fulfilled, such as a fine being paid in full, community service, probation being completed, serving a full jail sentence, or partial sentence if released early for good behaviour;
6. Other relevant information such as circumstances, misunderstandings (without excusing yourself), or evidence of rehabilitation, was it related to another offence. Was it related to gang culture/codes/rules.

If you require assistance with this step, please do not hesitate to contact us. Your version of the drafted statement will remain confidential throughout the process and will be settled and submitted by us, but it is important that you give us as much detail as possible.  we don’t care if it is full of spelling mistakes and the grammar isn’t Pulitzer prize worthy. The most important aspect if the correct facts.

Depending on the country, the personal statement is often requested in the form of a sworn and witnessed statement (e.g. Commonwealth Statutory Declaration), to be signed by the applicant, and witnessed.  We will put the completed statement in the correct format.

These are guidelines and everyone situation is different. Also don’t hold back on information as we know how to frame it correctly in the final versions, and to be honest we have seen and heard it all so nothing shocks us and we will not be sharing the information other than to be used for the application. –If you do not want specific people in your Band/team/crew etc the draft statements and information let us know so we can ensure that doesn’t occur.  

EXTRA STATEMENTS
In addition to the personal statement it can be helpful to have others provide support as well – this may entail further statements from friends or family who can give an overview of the situation.

CHARACTER REFERENCES We always recommend that that character references from people who have known you for a significant time be obtained and included.
 
Below is a suggested guideline and format of what to include in a letter of support:

• First section (the referee to provide) -Introduce themselves, their position/office, and outline their relationship with the applicant and how long they have known them;
• Second section (can be a few paragraphs) - Positively describe the character of the person, providing examples to evidence their good character / rehabilitation /charity;
• Last section -  closing statement, and thank the reader for their time and consideration. They should also provide contact details if further contact is required;
• Sign off – make sure it is signed and their full name is provided, have it also put in a formal statement format.  If done by a letter, the letters should be on letterhead, signed and addressed as follows:

To Whom It May Concern,
Re: [insert applicants name]
c/- - McCormicks Law
292 Water Street
Spring Hill
Australia 4000

If we are instructed to draft separate submissions, we will need to refer to provided reference and make additional supporting comments on it.

LETTERS FROM BUSINESSES

Letters from businesses that are involved with the tour are also recommended in many cases. These letters would outline what loss the business would experience if the applicant is not granted a visa. 

(c) McCormicks Law

The Australian Governments decision on 19 April 2017 to change the 457 visa regime has sent many into a tail spin.

What does it mean for the media and entertainment workers and their visas.

Actors, Dancers, Film Directors, Art Director (in Film TV and Stage), Variety Artist, certain sports people, Music Directors, Music Professionals, TV Presenter and Radio Presenter are some of the entertainment and media based occupations removed from the eligible skilled occupations in the Australian Governments culling of the 457 visas.
 
The reality is that many are more suited to the 408 Entertainment Visa and in certain circumstances a Distinguished Talent Visa.

MORE INFO: Entertainment visa page l Email

The Temporary Activity Subclass 408 Visa is the current a short stay visa, most relevant to the entertainment industry. The 408 visa has multiple ‘streams’ which have different requirements, including a 408 entertainment stream or 408 Invited Participant stream. Determining the most appropriate ‘steam’ to apply for, depends upon the activities the talent is undertaking in Australia.
 
For the entertainment, sport and media industries, the main factor to determine which visa is appropriate, is whether the purpose of the visit is to perform/play, or partake in promotional activities (although there is a specific sport stream).
 
An entertainment visa would usually be the most appropriate visa for say, bands on tour, a TV producer working on a reality TV series, or a film crew making a documentary. Although a music artist or actor coming to Australia for a promotional visit, that does not involve 'formal' performances, may likely fall under an invited participant steam of the 408 visa. 
 
It is important that the correct stream is applied for, particularly due to the fact the:

• activities covered on each visa are different;
• application processes are different; and
• entertainment stream is assessed in Australia, and the invited participant application is assessed overseas.

Other 408 Visa Streams
While these are usually the most appropriate streams for the entertainment, sports, and media industries, there is also a specific sporting stream which in particular circumstances covers applicants that are elite players, coaches, instructors or adjudicators, or partaking in high level training.
 
There are other streams of the 408 visas that cover superyacht crews, academics/researchers, religious workers, people visiting under “special” government programs and a number of other niche areas such as government endorsed events eg for the Commonwealth Games a specific 408 visa applies for visiting athletes, coaches and support staff.  

​

 Are you an overseas musician or entertainer wanting to come to Australia to perform? Chances are you will need a 408 Temporary Activity Visa (Entertainment Visa) (“408 Entertainment Visa”). Previously you would have required a 420 Entertainment Visa, however a new regime started as of 19 November 2016.

There are very particular requirements that need to be met and evidenced as the Department of Immigration and Border Protection (DIBP) process visa applications under Australian Immigration Law.

Here is a simple guide on the requirements for a 408 Entertainment Visa for musicians and entertainers performing in Australia.

What scenarios could a 408 Entertainment Visa cover?
The 408 Entertainment Visa covers most types of work in the entertainment industry. This includes entertainers or associated production or support staff coming into Australia for performances, studio recordings, media or film production.

THE KEY STEPS IN APPLYING FOR A 408 ENTERTAINMENT VISA
Step 1 – Sponsor/Supporter and Planned Entertainment Activities.
Your performance dates will need to be in placed before you apply for your visa, so you will need to provide us with contracts of engagement, your itinerary and in some circumstances a letter of support.

Every application requires the support of an Australian individual or organisation, which meets the ‘support test’ or ‘sponsor test.’ This is usually the organisation engaging you, or representing your interests in Australia, such as a promoter, venue, record label or booking agent.

You will need a ‘supporter’ or Australian individual or organisation if your stay is for less than 3 months. An approved ‘sponsor’ is only required if your stay is more than 3 months, or you are applying while you are in Australia.

Previously under the 420 Entertainment Visa, an Approved Entertainment Sponsor (who had fulfilled the requirements) was required to provide a nomination application when your application was submitted. This is no longer required under the new scheme, however aspects of these processes have now been incorporated into the new 408 Entertainment Visa.

Step 3 Submissions & Union Consultation
The application will require written submission that your visit will bring a “net employment benefit” to the Australian entertainment industry. You will have to provide evidence of any performing contracts, an itinerary specifying dates and venues of performances and any licences required.

Written submissions to the appropriate union are also required. If you are a musician, you will need to consult the Musician’s Union of Australia (MUA), or if you are a DJ or Tour Manager you will need to consult the Media Entertainment and Arts Alliance (MEAA). The submissions are backed up by supporting documents.

The appropriate union may need to be provided with a variety of documents which may include:

1. Contracts for engagements and/or Letter of Support;
2. Your itinerary;
3. A copy of any qualifications you have to undertake the position;
4. Details of Australian support artists (and other employed Australians);
5. Details of health insurance;
6. Details of worker’s compensation cover; and
7. Evidence that overseas members will receive remuneration and be afforded working terms and conditions including accommodation, travel and transport whilst in Australia.

Depending on the circumstances of your tour, different documents or information may be required to address specific aspects relevant to your application.

Step 4 Entertainment Visa Applications
The final step is completing the visa application for each applicant, which consist of roughly 24 pages of information, and attaching the required documents. We make our applications via our online portal with the Department.
For a basic application, this may include:

1. Copy of your passport;
2. Health Insurance for the period you wish to stay in Australia;
3. Details and documentation from your Australian ‘Supporter’ or ‘Sponsor’;
4. Contracts of employment (eg. booking contracts);
5. Itinerary; and
6. Union consultation approval.

Every person and application is different, so depending upon the particular applicant different documents and submissions may be required. We provide our clients with an easy to follow online form and checklist.

The final application is lodged with the Department of Immigration and Border Protection.

The Government lodgement fee has been reduced under the new changes to $275.00 per person.

This was previously $550.00 per person including nomination fee. The large group discounts have now been removed, however you may be eligible for concession if you are performing for a charitable organization or a government funded event.

Additional Requirements?
There are often additional requirements, and these will not be the same for each person.

For example, if you have (or have had in the past) a criminal history, character issues, significant health conditions such as tuberculosis, or you are from particular countries, you may be required to provide additional documentation. In these instances, your application should be submitted earlier to provide for ample processing time.

Every applicant is required to provide current health insurance for the period they are in Australia. This can be organised in your home country. After the department has viewed your application you may need to undergo a health assessment. This could include chest x-rays or other medical examinations. This is requested by the DIBP and must be done through the appropriate channels.

If you have a criminal history generally your penal records are required and need to be specifically addressed in the submissions.

Depending on the circumstances you may require:

• relevant national penal certificate/s (eg. FBI);
• state penal certificate/s for any state you have lived in for more than 3 months within the 12 months; and/or
• state penal certificate/s for any state you have committed an offence.

How long does it take to apply for a 408 Entertainment Visa?
It is important to apply well in advance of your performance or production schedule.

The departments recommend that you allow 2-3 months for processing.

Considering the 408 Entertainment Visa has only been available for lodgement since 19 November 2016, the exact processing times are hard to determine. We are finding that our online portal has dramatically cut down on all timeframes.

Remember, applying for visa does not guarantee you will be granted one by the Australian Government and a few things need to be done before you apply. If you are applying urgently (less than 2 months) you should contact us and get you materials together as soon as possible.

While we submit urgent application for many tours and promoters, but be aware that you cannot dictate to the Immigration Department how quickly your application should be processed.

How long can I stay in Australia if I am granted a 408 Entertainment Visa?
The Immigration Department will assess applications on a case by case basis. The maximum amount of time you may stay and work in Australia is two years, however it will be granted for the specific amount of time you will be performing or working in Australia. For example, if your performance schedule is for three months you will only be granted a three month entertainment visa, perhaps with some leeway at the end for organizing your departure.

Can I travel in and out of Australia on my visa?
Multiple entries in and out of Australia are permitted if the case officer agrees to grant this. Multiple entries can be difficult but not impossible to obtain. It could be as simple as requiring to fly across to New Zealand for a performance between your Australian tour dates. We would need to specifically outline this in your submissions. Multiple entry users are not granted unless dealt with appropriately and deemed necessary.

Can I do any other work while I am in Australia?
No, you can only undertake the work or activity that is included in your application.

May I bring family members with me?
Yes, you may. However they will also need visas, either as a family member of yours, or under a separate 408 Entertainment Visa if they are working as a member of the touring party.

What if I am under 18?
If you are under 18, please let us know as soon as possible as there are a number of additional steps required.

Can a 408 Entertainment Visa application be rejected?
A visa may be rejected for a number of reasons including character and health issues. Although the Australian government recognises the value of entertainment, overseas acts and film investment, if your application is not done properly it may be rejected or you may have to start the process again.  

If your application does not comply or fulfil the requirements it will be rejected.

On a promotional tour and not performing?
If this is the case, you may be eligible for another stream of the 408 Entertainment Visa – the invited participant stream. If this is the case, please contact us. We can process these applications quite quickly, however many of the same materials are required.

Questions?
Feel free to email us if you have any questions – visas [at] mccormicks.com.au

Entertainment industry visas are the only visas we do, and we are the number 1 experts in the field in Australia with a 100% success rate and have never missed a deadline. The entertainment visas are quite specific so you are in better hands with industry lawyers to ensure its success.

The fees listed above are the fees charged by the Immigration Department. If you are using us or any other qualified agent these fees are in addition. You can see our fixed fee pricing here.

Promoters: For repeat clients and promoters with a large number of applicants each year, our specific fess are calculated on a volume retainer. Promoters should contact Matt to discuss matt [at] mccomormicks.com.au
​

Entertainment Visas to Australia are about to get a whole lot more streamlined with less red tape. But for large touring groups and festivals application fees will increase dramatically. Small groups and individuals will see government fees reduced slightly. The changes are expected to come into effect this November. 19 November is the current date identified.

The changes are a result of public and industry consultation over the last 18 months. Having assisted clients with 420 visas in large numbers, we were very vocally supportive in limiting the red tape that caused clients quite a bit of stress and delay to streamline the process and cut time and paper wastage. The ability to now lodge applications for our clients visas through our online portal will be extremely beneficial for all involved. However the scrapping of the bulk group discount will see massive cost pressures put on large festivals and promoters.  We do not support the abolishing of the group discount being imposed on an already fragile industry.

There will be 4 new visa frameworks which will see five current visas close to new applicantions. Musicians, crew, media, filmmakers and sports people will soon be applying for a new specific visa the “Subclass 408 Temporary Activity Visa”.
Red tape will be substantially reduced and for some activities and clients, the sponsorship and nomination requirement will be removed altogether. We expect this to include 99.9% of music tours, sporting events and most film personnel.
The need for a sponsor in many circumstances will be changed. The abolition of the nomination process could mean that the government costs of a visa may be very substantially reduced (unless the visa application fees are dramatically changed to make up for this loss of revenue).
 
Only some of the proposed changes have been announced. We will be briefed by immigration at the end of September on the new regime. However, for the time being here is a summary of what we know so far:

• Applications will be lodged via our online portal. Currently we are express posting or faxing hundreds of pages to immigration for even the smallest of groups.
• Large group discounts for the government fees will be scrapped with a cost per application imposed across the board.
• Not for profits will now have to pay the government fees. Official charities will remain exempt.
•  A single sponsorship (temporary activities sponsor) would replace six existing sponsorship types across the entertainment (and related) industries.
•  under the new entertainment visas (subclass 408 Temporary Activity visa) :
  1. An applicant would not need a nomination at all.
  2. An applicant would not need to be sponsored if the application is made when the applicant is outside Australia (that is most applicants) and if the stay is for less than three months. Again that’s the majority of music tours, theatre performances, film crews etc.
  3. An approved sponsor would only be required if the applicant is in Australian territory at the time the application is made and/or if the visa is needed for over 3 months. 

The new visa for entertainers would allow entry into Australia for temporary work or a specified activity.
​
This new visa, which will replace the current 420 Entertainment Visa, will cover the following temporary visits:

​New sponsorship process
 After the new laws come into effect, if a client requires Sponsorship approval we will now be able to lodge those applications via our online portal. This will make it easier, quicker and ultimately cheaper for us and our clients.  No more paper forms and faxing.

All existing  420 Entertainment sponsors will maintain their sponsorship for the purpose of the new 408 visa until May 2016. However within 6 months existing sponsors who wish to maintain their approval will need to reapply.  We will see that the vast majority will no longer need to keep their sponsorship approval given that most approved sponsors rarely require over 3 months for specific tours or projects.  For those new sponsors whom we recently obtained Approval Sponsor status, we are not advised if there will be a prorate refund on the 3 year fee, but we will certainly be asking that question.

The new sponsorship regime will also be quite specific, however we will provide more information on this as it becomes available.

Nomination
New entertainers would not require a nomination.

Nominations lodged before 19 November 2016
All existing nominations under the current 420 Entertainment regime lodged before 19 November 2016 would need to be linked to an associated visa application lodged before 19 November 2016.

If you are an entertainment sponsor and have applied or intend to apply to nominate an applicant before 19 November 2016, you will need to ensure that your nominated applicant applies for their visa before 19 November 2016. Otherwise the nomination cannot be used.

All applications for nominations that were lodged before 19 November 2016 would be assessed and finalised under pre-19 November 2016 legislation.
If the applicant is unable to lodge the associated visa application before 19 November 2016, we will be working with our clients to either withdraw any non-finalised nominations as they may not be used under the new proposed legislation.
​
On the whole we expect the new system to be a positive however the streamlined process may not necessarily be positive for urgent late applications and those entertainment visa applications that require character assessments or particular medical examinations.

Following our briefing by the department on the new visa regime that will replace the current 420 Entertainment Visa, we will be updating all our clients.  

Authors Note: "being able to finally process entertainment visas via the portal for Australia is welcomed, so is no longer needing a sponsor nomination for most. Not keeping the group discounts is either a serious oversight or designed to make up for the fee reductions to be provided to small tour groups. Either way it must be addressed; festivals are finding it difficult enough to secure top international talent with the current Australian Dollar. The festival and large promoter industry is far too important to the entertainment industry as a whole and the nation. Festivals are certainly deserving of the bulk discounts given the total economic benefit a single festival can provide to a small region which is where a majority of the major 3+ day events are held." - Matt McCormick  

The new laws will apply to all standard form contracts. Standard form contracts are those where one party has prepared the contract and the other party has little or no opportunity to negotiate., that is, it is offered on a ‘take it or leave it’ basis, including:  

• for the supply of goods or services
• land sale agreements
• at least one of the parties is a small business/sole trader 
• an upfront price is payable to a certain level ($300,000 or $1 Million depending on the length of the relevant agreement)  

​For existing contracts even if it is varied after 12 November the laws will apply to the varied terms. 

Types of terms of contracts that will be effected 
The new law sets out examples of terms that may be unfair, including:

• terms that only enable one party (but not another) to avoid or limit their obligations under the contract
• terms that only enable one party (but not another) to terminate the contract
• terms that only penalise one party (but not another) for breaching or terminating the contract
• terms that only enable one party (but not another) to vary the terms of the contract

If a term is captured under the new laws, the term will be deemed a void, meaning it will be non-binding on either party. 

Another international production to start filming in Queensland this April - "Jungle" adapted from the bestselling memior by Yossi Ghinsberg the film will also feature some great Queensland leading talent - Below is the Media Release issued by the Premier and Minister for Arts. ​

'Payment for visas' conduct relates to the asking for, receiving, offering to provide, or providng a benefit in return for a sponsorship-related event.
A 'sponsorship-related event' covers a broad range of sponsor and employer-related events including, but not limited to:

• a person entering into a sponsorship arrangement, this includes music tours, festivals, one off shows, and also flim roles. 
• the employment or engagement of a person in work or an activity with the sponsor.

A 'benefit' is defined to include a payment, the deduction of an amount, real or personal property, an advantage, a service or a gift. 
In the 'payment for visas' context, this would cover performance fee deductions and  inflated payments for goods or services in relation to the tour or event. 
Where a 'benefit' is asked for, received, offered or provided in association with a 'sponsorship-related event', this is considered to be participation in 'payment for visas' activity and contravenes the new laws that prevent 'payment for visas' conduct.

Clearly the overall aim is to protect overseas workers from exploitation. The changes relate to all classes of visas requiring a sponsor and this is why the short term 420 Entertainment Visa is captured. The 420's are of much lesser concern to the department of immigration than other long term trade based visas. However in the context of entertainment it is covered to stop sponsors from obtaining 'inappropriate' financial gain through selling of sponsorship for visas. 

Professional services would not ordinarily be captured under these changes as a 'payment' for visas due to the fact that the payment for those services are unlikely to be an 'inducement' to enter into a 'sponsorship-related event'.

The penalties are substantial  - 2 years imprisonment is the maximum criminal penalty or a $64,000 fine. The penalty for a Company  is 5 times the personal penalty equaling $216,000 as a maximum fine.

​ Visas can also be cancelled and the Applicants deported and the sponsors lose their approval to be a visa sponsor again.

Following the introduction of these new laws, Temporary Work (Entertainment) visa (subclass 420) sponsors and visa applicants are required to provide a statement in relation to current or previous conduct that constitutes a breach in ‘payment for visas’ activity.  
 
Until the nomination (1420N) and visa application (1420) forms are updated and republished by the department, sponsors and visa applicants need to complete and sign an interim Certification (sponsor) and Declaration (visa applicant) that the department has provided to us directly. This form needs to be submitted and all future application (until the new permanent are  made public).

Yep another form to be completed....... oh the joys of red tape. 
 
Applications received on or after 14 December 2015 without the Declaration and Certification will be invalid until these documents are provided. Sponsors and visa applicants will be invited to validate the application by providing the documents.  Failure to provide the declaration or certification will invalidate the application.
 
The new forms are expected to be available by the end of January 2016, in the meantime we hold the temporary forms which will be going out to all clients we are currently working with for their entertainment visa applications. All clients are asked to complete them immediately and scan a copy straight back to us with the original posted to us. 

Why?  From our analysis of the information and reports relating to the charges, and breaches of parole, under the Migration Act, the reported acts do not appear sufficient to reject his application based on his 'criminal record'.

Don’t misunderstand us, we are not making any comment regarding the public policy considerations expressed around twitter and the media, nor the seriousness of Brown's past abuse and violence. The test is a legal test and Brown as with anyone will be afforded that test. 

Given the publicity and public interest surrounding Brown’s convictions, breaches of probation and arrests, for Brown it will not be a straightforward application. 

Brown previously gained entry into Australia with a recorded conviction, during which he exhibited no signs of causing a threat to the well-being of the community. While the Department considers a broad range of factors while exercising its discretion the nature of Brown’s parole breaches are unlikely to be fatal to his application.  Further,  Brown’s 2009 conviction will unlikely have a decisive impact on the Department’s decision, and it can be navigated appropriately in the visa application. Brown’s 2013 conviction will be of more significance to the Department than the 2009 conviction.

Brown was denied entry to Canada earlier in the year, that decision is not automatically relevant to this Australian application and nor is the UK decision. It will be dealt with under our Migration Act. 

The Department requires that individuals applying to work, visit or migrate to Australia are of good character as defined by the Migration Act 1958.  In making a determination on whether a person is fit for entry, the Department applies a character test which ultimately decides whether or not a person is granted a visa to enter Australia. 

The Minister and decision makers in the Department have the power to make a decision to grant or refuse a visa on character grounds and this is done on a case-by-case basis. The Minister or the Department have the authority to revoke a visa that has already been granted if it is later established that the person has failed the character test.

A person is deemed to have failed the character test if (for example):

1.  they have a substantial criminal record
   
2.  they have an association with another individual, group or organisation whom the Minister reasonably believes has engaged in criminal conduct
   
3.  they are likely to engage in criminal activities in Australia
   
4. they are likely to harass, stalk, or molest another person while in the country
   
5. they are likely to incite discord within the community, or a segment of the community within Australia
   
6.  they represent a danger to the community, or a segment of that community by being likely to become involved in activities that are disruptive, violent or threatening.

In deciding to grant or refuse a visa, an overriding consideration for the Department is the well being of the community. If there is a possibility that the community or other individuals might face a threat from an applicant, the visa may be denied.

So let’s look at the criminal character  test in relation to Chris Brown.  

As far as the Migration Act is concerned Brown does not have a substantial criminal record as defined by the Act, because Brown has not been:  

1. sentenced to death
   
2. sentenced to life imprisonment
   
3. sentenced to a term of imprisonment of 12 months or more
   
4. sentenced to two or more terms of imprisonment with the total of those terms being 12 months or more
   
5. acquitted of a crime due to insanity or mental impairment.
   

[these are the actual elements a 'substantial criminal record' is assessed against under the Act, 'Substantial  criminal record' is tested under these items, not subjective views of the public]

Notwithstanding this, the Department will still take into consideration the nature of each of his convictions and jail time when assessing the application and will expect Browns team to address these issue to a satisfactory standard.

While Brown has been convicted of a crime, he is not under Australian law automatically disqualified from entry to Australia due to this. 

Whilst there has been a degree of public interest surrounding Brown’s convictions, the breaches of probation and arrests will also attract interest. Provided relevant safeguards (if required) are in place the Department will likely be satisfied that this is not an issue. {Keep in mind this is the likelihood of engaging in 'criminal activity'].   Brown toured a couple of years ago without incident, which will be taken into consideration and in reality will be favourable for his visa application. 

This is very broad and all encompassing. In practice it is often reserved and implemented as a measure to deny those who are suspected of terrorism from entry to Australia. However, there is precedent of this provision being used on a more general basis to deny applicants the right to enter the country.

In addition to the criteria outlined in the Act, the Department refers to set of internal Departmental guidelines when assessing applicants which it deems as being controversial. Such individuals are deemed as being controversial due to their activities, reputation, known record or the cause they represent and propagate:

• vilifies or incites discord in the Australian community or a segment of that community
• represent a danger to the Australian community or a segment of that community
• be contrary to Australia's foreign policy interests.

 
This may provide  basis for refusing the visa however we do not consider that his 420 Entertainment Visa application would fail here.  

Past and Present Character
Of course there is that phrase at section  501, namely subsection 501 (6) (c) where; someone does not pass the character test if .....  [paraphrased] having regards to a persons "past or present criminal conduct or  past or present conduct" they are not of good character.  Unfortunately for all 501 (6) (c) is  widely worded and is the subjective test. There is a Ministerial direction that requires decision makers to take into account "all relevant circumstances of a particular case", including evidence of good behavior. 

The Direction states  factors for consideration of  "a person’s past or present general conduct"

 ‘Not of good character is ’:

1. whether the person has been involved in activities which show contempt or disregard for the law or human rights (such as war crimes, crimes against humanity, terrorist activities, drug trafficking, ‘political extremism’, extortion, fraud, or ‘a history of serious breaches of immigration law’)
2. whether the person has been removed or deported from Australia or another country, and the circumstances that led to the removal or deportation
3. whether the person has been dishonourably discharged or discharged prematurely from the armed forces of another country as the result of disciplinary action in circumstances, or because of conduct, that in Australia would be regarded as serious

The subjective discretion under section 501 (6)  that the Minster is able to exercise will likely be invoked, but a refusal in our view would no be able to sole rely on the criminal character test. It will need to take into account other factors. Potentially a notice will be issued to Brown before the visa is formally applied for advising of the Ministers intention to refuse entry. If that is the case Brown will have 28 days to address concerns raised in the notice.  

On the social side of the debate, a clear and very reasonable argument focuses on the symbolic significance that Chris Brown’s Australian tour will have relating to the acceptability of family violence in society. Conversely a google search displays reports of recent charity work done and also funding provided by Brown for domestic violence programs. Whatever ones stance is on these points, from a legal stand point as it relates to the character test and criminal history under the Migration Act, it is not straight forward that Brown  will fail the test and as there is a strong arguments in his favor. Chances are that he will be entitled under law to be granted an Australia 420 Entertainment Visa, ............ we will wait and see....

The 'no animals were harmed" message at the end of movies came about following the 1939 Jesse James film.  In the film a horse was blindfolded and ridden over a cliff to its death.  Animal safety concerns in the industry for the first time made front page news. The incident has been directly attributed to the establishment of the American Humane Society and with changing sensitivities the phrase became the trademark disclaimer for all movies involving animals.  

 A disclaimer in a film, novel or TV show are intended to reduce the possibility of legal proceedings or in the case of the animals disclaimer to also satisfy public confidence. 

 The "True Story Disclaimer" will normally be along the lines of "based on actual events" with some adding, "[but] changed for dramatic purposes".  The  "All Persons Disclaimer" is in every fictitious film, novel and TV show in some format. They come is various styles dealing with facts, people, characters and the wordings differ from jurisdiction to jurisdiction and so do the rules relating to how enforceable they are. 

The typical "all persons disclaimer" would be something like this;

The appropriate wording in a disclaimer is one of the last things looked at after we perform a pre-publication review of works.  

• an Australian organisation that is a business, a body corporate or an unincorporated body; or
  
• Government Agency, that is an Australian State or Federal Agency or a foreign government agency who is operating in Australia; or
  
• an Australian citizen, permanent resident or an eligible New Zealander who is resident in Australia.
  

 A sole trader will not be approved as a 420 entertainment visa sponsor. If there are no other options for you we will likely apply for you as an individual or establish you correctly as a company.

As an Australian organisation, you must be able to show that you have a good business record in Australia and of course you must be operating legally.

Probably one of the most simple summaries on music royalties has been by published on www.howstiffworks.com and written by non lawyer Lee Ann Obringer. Most of the references is US based but still relevant and a great overview all round. This is the introduction and there is a link to the full article below. 

"Watch MTV or open a copy of Rolling Stone or Spin and you'll be checking out some musical members of the entertainment elite. The clothes, the jewelry, the cars, the clubs, the houses... One might wonder where, exactly, all that money is coming from. How much does the artist make from CD sales?

Bars, clubs and coffee houses across the country are overflowing with fresh, talented musicians who want to join the ranks of these performers. But really, what are the chances of making it to stardom and retiring on music royalties?

Making money in the music industry is tricky. Recording contracts are notoriously complicated, and every big recording artist has a small army of legal representatives to translate and negotiate these deals. In this article, we'll look into the world of music royalties and see how money is actually made in this industry.

Who Gets What?
The first thing we need to do is distinguish between recording-artist royalties and songwriter/publisher royalties.

In The Internet Debacle - An Alternative View, Janis Ian, a singer/songwriter, states:

"If we're not songwriters, and not hugely successful commercially (as in platinum-plus), we [recording artists] don't make a dime off our recordings.She's referring to the fact that recording artists and songwriters do not earn royalties in the same way. Recording artists earn royalties from the sale of their recordings on CDs, cassette tapes, and, in the good old days, vinyl. Recording artists don't earn royalties on public performances (when their music is played on the radio, on TV, or in bars and restaurants). This is a long-standing practice that's based on copyright law and the fact that when radio stations play the songs, more CDs and tapes are sold. Songwriters and publishers, however, do earn royalties in these instances -- as well as a small portion of the recording sales."

The only current instance in which artists earn royalties for "public performances" is when the song is played in a digital arena (like in a Webcast or on satellite radio), is non-interactive (meaning the listener doesn't pick and choose songs to hear), and the listener is a subscriber to the service. This came about with the Digital Performance Rights in Sound Recordings Act of 1995. This act gave performers of music their first performance royalties.

We'll go into more detail about the types of licenses and royalties later in this article. But first, let's look at song copyrights...".

This is just the intro to Obringers article, the other 75% and the full article you can get here along with many more.

 
In Australia copyright subsists solely by virtue of the Copyright Act 1968 and the Designs Act 2003 which are both Commonwealth Laws (ie Federal Laws). There is no “common law” concept of copyright in Australia. The law is found in the legislation passed by the Federal Government and interpreted by the courts.

Copyright is as “the exclusive right to do certain acts relating to literary, dramatic, musical and artistic works, sound recordings, cinematograph films, television or sound broadcasts and published editions of works.

The Copyright Act gives protection to an author of such works etc, except where that author has created such work for an employer or its assigned to another person or company.

Copyright is generally for the life of the author plus 70 years.

If the first publication of the work is anonymous or pseudonymous, copyright is for 70 years from date it was published.5.

 If there where two similar works independently produced, the author who published first will not be able to prevent the other from publishing.

Copyright exists immediately upon the work being created, you don’t register copyright it is obtained at the creation of the work. Registration exists for this such as patents and trademarks.

For Copyright to provide protection the work must be original, in novel but not completely novel

The holder of copyright of works gives the copyright holder the right to reproduce, publish, perform in public, or communicate the work to the public and to allow others to do the same generally by way of  a licence.

Infringement of copyright can come either directly or indirectly. Direct occurs when a someone , other than the copyright owner or the licensee holder uses the copyrighted works with out permission.
 
Indirect infringement occurs where a person, without the licence of the owner, imports into an article which would infringe copyright if it had been made in Australia . or sells or hires an article knowing that it infringes the copyright.

The main remedies available to an owner or exclusive licensee for an infringement of copyright are:

·        an injunction;
·        damages or an account of profits;
·        additional (or exemplary) damages;
·        delivery up of copies of the work or damages for its conversion or detention;5.
·        an injunction ;
·        delivery up and destruction of the infringing works

An infringer in some circumstances may also be subject to criminal penalties 

On 20 February 2015 the Communications Alliance released a draft code of practice responding to concerns about online copyright infringement. In recent months we have voiced our opinion on the issue and will be filing our response to the Communications Alliance in the coming weeks. Below is a summary of the draft code: 

Background
In November 2014 the Attorney General and Minister for Communications laid down the following ultimatum to Australian copyright holders, ISPs and consumers: collaborate to develop an industry code which responds to concerns about online copyright infringement, while protecting the legitimate interests of rights holders, by April 2015; or we will impose measures for you.

It comes as no surprise that the Communications Alliance - which represents ISPs and rights holders from music, film, television and the performing arts – has released a draft code of practice in support of its fight against online copyright infringement.  The draft code was released for public comment on 20 February 2015 with a final proposal anticipated to be lodged with the ACMA by 8 April 2015.

Benchmarks
Among the main criteria outlined by the AG and Minister for Communications was a code which:

• ISPs take reasonable steps (including the development of an education and warning notice scheme) to deter online copyright infringement on their network, when  they are made aware of infringing subscribers, in a manner that is proportionate to the infringement
  
• Informs consumers of the implications of copyright infringement and legitimate alternatives that provide affordable and timely content providing appropriate safeguards for consumers
• Fairly apportions costs as between ISPs and rights holder ensures smaller ISPs are not unfairly or disproportionately affected, and includes a process for facilitated discovery to assist rights holders in taking direct copyright infringement action against a subscriber after an agreed number of notices. 
• Any code must be sustainable and technology neutral. It should be educative and attempt to address the reasons that people are accessing unauthorised content. Consumer interests must be given genuine consideration in your negotiations

Proposed Changes
In response The Communications Alliance have proposed the creation of a Copyright Notice Scheme targeted at residential fixed internet users who are alleged to have infringed copyright online. Rights Holders may send infringement notices to ISPs covered by the scheme, alleging that copyright infringement of a particular work has been associated with a particular ISP address. The ISP must wait at least 14 days on issuing a notice before issuing a further notice.

An ISP participating in the scheme must investigate the complaint, but must not disclose the user’s identity at any time during the process. Users caught illegally downloading content will receive an escalating series of infringement notices designed to change their behaviour and steer them toward lawful sources of content. An account holder who receives three infringement notices in a 12 month period has the right to have the validity of the allegations independently reviewed by an adjudication panel.

The rights holder may request a Final Notice List from the ISP detailing the IP Addresses who have received Final Notices which have not been set aside by the Adjudication Panel.

In line with the AG’s recommendations the proposed scheme has a strong emphasis on public education and while it does not contain explicit sanctions against internet users, it does provide for a ‘facilitated preliminary discovery’ process through which ISPs can assist Rights Holders who may decide to take legal action against persistent infringers. Such discovery must be sought by way of application to the Federal Court, with ISPs, rights holders and users having to comply with any orders of Court.

Details on key issues such as how the Scheme is to be funded and the roles played by rights holders of content such as music and films and the ISPs are still under discussion.

Rights Holders involved in the code development include APRA AMCOS, ARIA, Australia Screen Association, Copyright Agency, Foxtel, Free TV Australia, Music Rights Australia, News Corporation Australia, Village Roadshow Limited and World Media.

Chris Woodforde, a representative on behalf of several Right’s Holders during the negotiations said “The creative industries believe that the implementation of an effective code is an important step in protecting creative content in the online environment. The release of the draft code for public comment is important in achieving that goal.  The creative industry representatives will continue to work with the Government, ISPs and other stakeholders to implement the code and address the serious issue of online copyright infringement.”

 Is the draft code well balanced in its response to the issues?For the most part the code has adopted a pragmatic approach to the issue and has largely struck a balance between the interests of the rights holder, ISP and consumers. While the Communications Alliance concedes that the code is currently in draft there are some notable points of concern.

One of the more obvious concerns is whether ISPs are adequately equipped to police and investigate such inquiries? If we are to recommend devolving the power to police copyright infringement to a commercial enterprise then more consideration must be given to ensure that this responsibility is not abused. In the current state of play ISPs remain under intense pressure from rights holders to disclose the identity of copyright infringers. While the draft code provides for a ‘3 strikes policy’ and scope for an independent adjudicator, uncertainty remains over the integrity of the ISP’s investigation.

Will the investigations take place in Australia or an offshore location? Do ISPs intend on establishing dedicated units within their organisation to conduct such investigations? Will the processes be uniform across all ISPs? While in theory the proposal makes sense and reads well, there is inevitably scope for abuse in practice. The biggest fear is that ISPs simply ‘go through the motions’ of issuing infringement notices without adequate investigation, unduly placing more pressure and costs on the consumer to defend the allegations. It also bears considering whether and how the costs of implementing and regulating such a scheme are passed onto the consumer from the ISPs.

In 2009 the ‘3 strikes policy’ was introduced in France and serves as a cautionary tale. Despite resulting in positive feedback the law was eventually repealed in 2013. The government cited a failure to benefit authorized services, punishing users more so than the illegal providers and the costs of implementing the regime as the main reasons for its failure. The French calculated the costs of sending out the 1 million required emails and 99,000 registered letters as 12 million Euros and requires the dedication of 60 civil servants. The French Culture Minister argued that the costs outweighed the low rate of cases actually proceeding to trial (some 134), many without conviction. 

Sources listed in the images below 

Each year hundreds of sports people and officials visit Australia to play.  Whether it’s just to train or play for a professional or amateur club, there are various different visas to choose from depending on what you plan on doing during your stay in Australia.  


Visa 421
If you are a sportsperson wishing to enter Australia to play then you will need to obtain a Subclass 421 Sports Visa.  

Who is this visa for?
This visa is for both professional and amateur individuals and teams as well as their coaches, support staff or instructors.  Adjudicators, judges of sport or those entering Australia to participant in a structured sports training program longer than three months are also covered under this visa.

May I bring family members with me?
This visa allows you to bring in members of your family.  If a member of your family wishes to join you in Australia at a later time, they will need to lodge a separate visa application.  A letter from the sportsman’s sponsor must accompany the visa detailing that the Sponsor will be responsible for any family members during their stay in Australia. 

Visa requirements
You will require sponsorship and nomination by an Australian organisation or government agency or a foreign government agency that promotes sport or sporting events.  For example, Tennis Australia or Netball Australia.   Sport Visa applications require an accompanied letter of endorsement from the Sports National Body.

You will also need adequate health insurance whilst you are in Australia.

Sporting bodies have different requirements
Some sporting bodies, for example the Australian Rugby Union (ARU) have specific criteria that need to be fully met before they will endorse a Sport Visa.  For example, for a player to be endorsed by the ARU they must have the ability and eligibility to play at Senior National level.  Alternatively, if they are coming to Australia to train they must be under contract to an Australian club and playing at Senior National level in their own country.  

Contractual players
A Business (Long Stay) visa (subclass 457) is the most appropriate visa for players contracted to a club for a season.  Players can stay in Australia for a period of 4 years.  

Visas for Promotional matches or trials (short stay) Players are eligible for a Business (Short Stay) visa (subclass 456) or ETA Business (Short Stay) visa (subclass 977) for promotional games or trials.   

Only training and not playing?If you are intending to come to Australia for less than three months to undertake limited sports training or play and you are not being paid, a tourist visa maybe more appropriate.  The eVisitor (subclass 651), the Tourist visa (subclass 676) and the ETA for visitors (subclass 976) are other visa options that you may enter Australia on.  

If you intend on playing for a particular club, you will usually only be able to play a maximum of three games on these alternative visas.  

Participating in other sporting activities
Your visa is only for the sport or activity that you have applied for in your visa.  You must not take on any other employment or another sporting activity whilst you are in Australia.  

Maximum Stay 
You may stay in Australia for a maximum period of two years.  

May I leave and re-enter Australia on this visa?
Yes

Question? email visas@mccormicks.com.au 

Are you an overseas musician wanting to come to Australia to perform?  Chances are you’ll need a 420 Entertainment Visa.  

As a Registered Migration Agent that helps touring musicians and bands secure entertainment visas, we see first-hand that to the 
un-initiated, the immigration process can be a slow and confusing maze to navigate.  Here is a simple guide on the specific immigration requirements for a 420 Entertainment Visa for musicians. 

What scenarios could a 420 Entertainment Visa cover?
The 420 Visa is for entertainers or associated staff  coming into Australia for performances, media or film productions. This Visa covers the following types of entertainment:

1. Performer not in Film or Television (Musicians)
2. Performer in Film or Television Production – either subsidised or not subsidised by the Australian Government
3. Production roles other than as a Performer
4. Support staff for an Entertainer or Group of Entertainers
5. Non-Profit Engagements
6. Documentaries and commercials made for a market outside Australia. 

How long does it take to apply for a 420 Entertainment Visa?Visa applications may take up to 2-3 months to process so it is important to apply well in advance of your performance or production schedule. Remember, applying for a Visa doesn’t guarantee you’ll be granted one by the Australian government and a few things need to be done before you apply. If you are applying urgently (less that 2 months) you should contact us as asap. 

The key steps to getting an Entertainment visa

Step 1 – Sponsorship form
You will need someone to sponsor you (or your band) during your stay in Australia. Your Sponsor is required to complete and lodge a 1420S form and the fee (currently $420.00). Your Sponsor will need to provide the Immigration Department with details of their financial status or other supporting documentation. The Department will send an approval letter to the Sponsor. If your Sponsor is approved, you may move to Step 2. 

Step 2 – Nomination form + sponsor cover letter
Your Sponsor will need to nominate the particular entertainment activity you will be undertaking. Your Sponsor will need to complete and lodge a 1420N Nomination Form and pay the application fee (currently $170.00)  

If there are several members in your band wishing to enter Australia, this fee covers every member in the band or crew. Only one nomination fee for the entire band in required. 

A letter outlining what the nominated activity will bring as a ”net employment benefit” to the Australian entertainment industry is needed. You will have to to provide evidence of any performing contracts, an itinerary specifying dates and venues of performances and any licences required. As part of the nomination application, you will also be required to consult with the Musician’s Union of Australia (MUS) who will charge you a fee. MUS will need to be provided with:

1. A copy of the contract between sponsors and musicians;
2. Your itinerary;
3. A copy of any qualifications you have to undertake the position;
4. Your accommodation details whilst in Australia;
5. Details of your direct contact details any other support artists;
6. Details of workers compensation cover; and
7. Evidence that overseas members will receive remuneration and be afforded working terms and conditions including accommodation, travel and transport whilst in Australia.

If you're a DJ the union is the Media and Entertainment Arts Alliance.  

Step 3 – Entertainment Visa application

The final step is where the musician will need to complete the 14 page 420 Entertainment Visa application. The lodgement cost is currently $360 per band member. 

You will need to include the following in your application:

1. A residential address during your stay in Australia
2. A certified copy of your passport showing your photograph and details, and
3. Your health insurance policy for the period you wish to stay in Australia.

All the above forms must be lodged with the Department of Immigration and Citizenship.

Are there any additional requirements or documentation I need to provide?
You will need to provide your own health insurance. This can be organised in your home country. After the Department has viewed your application, you may be required to undergo a Health Assessment. This could involve a chest X-ray or other medical examinations. You may also need to provide a police report. However, you will be notified by the Department if you are required to submit more information.  

How long can I stay in Australia if I am granted a 420 Visa?
The Department will assess applications on a case-by-case basis. The maximum amount of time you may stay and work in Australia is two years and a Visa will be granted for the specific amount of time you will be performing or working in Australia. For example, if your performance schedule is for three months, you will only be granted a three month entertainment visa.  

Can I travel in and out of Australia on my Visa?
Multiple entries in and out of Australia are permitted if the case officer agrees to grant this. Multiple entries can be difficult but not impossible to obtain. It will need to be outlined in your application. The cover letter attached to the nomination form must state why you will need multiple entry rights. It could be as simple as requiring to fly across to New Zealand or for a performance in-between your Australian tour dates. 

Can I do any other work whilst I am in Australia?
No, you can only undertake the work or activity that you included in your application.

May I bring family members with me?
Yes, you may. However, if they want to work they will need their own 420 (or other relevant) Visa.

Can a 420 Entertainment Visa application be rejected?
A visa may be rejected for a number of reasons including character and health. Although the Australian government recognises the value of entertainment, overseas acts and film investment, if your application is not done properly it may be rejected or you may have to start the process again.  

On a promotional Tour and not "performing"?
What we would apply for is a particular  story term business visa.

Questions?
Feel free to email us if you have a question - visas@mccormicks.com.au 

The fees listed above are the fees charged by the Department of Immigration. If you are using us or any other qualified agent these fees are in addition. Our fees are fixed from $880 and are guaranteed to beat any other legitimate price of an agent. Why? Because entertainment visas are the only visas we do and we are the number 1 experts in the field in Australia with a 100% success rate and have never missed an agreed deadline.   

More about our work for our customers seeking visas is here.

A record deal may seem like the ultimate goal to an artist however all contracts (including record deals) contain a number of details which flow on to affect to what and how an artist actually gets paid.  Sometimes a small detail in a recording contract can result in big affects down-the-line for an artist.  

Because of this, it's vital to understand all aspects of a deal including royalties (and how they're calculated) and any costs (recoupments or deductions) that will reduce payments to the artist.  

In addition,  there is a difference between royalties of the recording artist and the royalties of the song writer.  Sales of a recorded album or single relate to royalties for the recording artist.  Whereas, the songwriter’s royalties ALSO come from public performances (when the song is played on the radio or in restaurants etc). This is often the key driver of why the singer/songwriter is usually able to buy a beach house well before the non-writing drummer in a band.

In the past, record deals have been very complex.  Up until recently, my 3 year old had more chance of constructing his own IKEA bed than I had of accurately calculating royalty formulas in some contracts. Thankfully most deals now are more ‘straightforward’.   Old formulas still survive and we will look at them in a later article. Let’s look at the more straight forward ones. 

Royalty Calculations on record sales
There are many  different types of royalties    that an artist may receive for their work. Here we deal specifically with record sales. 

The royalty payment depends on the math and how the calculation is made. Most record contracts are not straight forward “60/40” or “50/50” split deals.  A customary royalty calculation takes into account fixed deductions, taxes, recoupment of expenses, the price of the product, giveaways and in some cases quite a few extras.   This is why it’s so important to make sure you understand the royalty terms within a proposed record deal.
Whilst we are using the word “percentage” each royalty percentage is known in the industry as a point. So if the royalty percentage is 15%, it’s a 15 point deal.  

Artists are paid royalties based upon a percentage of total record sales and those percentages will differ in each country.  In the United States and the United Kingdom, artists will likely have a lesser percentage rate than in Australia. This is solely because of the different size of the market.  Your royalty rate will also depend on a number of other things, including the company you’re dealing with and how their deal is structured, how much clout you have, the fine points of the deal and the deductions. You have to look much further than the rate offered. 

Let’s say an artist has a 15% royalty rate. This does not mean that for a $20 CD the artist receives $3.00.  Even under a basic royalty calculation, the reality is far from it.  
There is a variety of different formulas applied. Here is one of the ‘simpler’  calculations we see. 

Wholesale Price Calculation
The royalty rate is a percentage of the published price top dealer (PPD) otherwise called the wholesale price. It’s the price that the retailer pays to the record company for the product. Some companies may use the retail price but not many anymore. From the PPD, deduct the GST, that’s because you are never going to receive a royalty on the GST.

PPD                                $15.00
GST                                ($1.36)
Sub total              $13.64
Royalty per unit @ 15%    $2.05

There you go, you can sign now. You will receive $2.05 for every CD sold. Wrong, if only it was that easy.  

Deductions 
Now there are a few deductions that need to be taken into the account before the royalty rate is applied. Packaging is common, and in some cases some other items. Delivery charge deductions are less common nowadays, but can still remain and could be between $0.25 and $0.40 per unit. They could also be applied elsewhere. Look at the deductions carefully as they can make a massive difference to what looks like a generous royalty rate. 

An archaic deduction to look out for is in the style of “90% of net sales.”  This is the wisdom tooth of the old shellac records sales accounting for an arbitrary 10% breakage rate. They are still found in some contracts.  Put a red pen though anything of the sort.  The same can be said for any percentage deductions that allow for ‘free’ or ‘promotional goods’ in a contract where the royalties are paid on records “sold.”

An old trick in the industry was to provide retailers with 10%+ of free goods with an order. Because the goods were free they were not “sold” and as such no royalty was paid.  Although they may have still been sold by the retailer, they were not sold to the retailer.  

There will be a deduction for packaging in most major deals. The theory goes that the artist should only obtain a royalty for the album not the artwork etc. In the past, a common deduction was generally 25%. “Packaging” a digital album and a 10 sleeve physical CD doesn’t cost the same does it? If your contract has a standard percentage deduction for all packaging look at it closely. 

Depending on the type or sale/product for deals with packaging deductions you will now may see different rates for difficult products.  Whilst deduction rates do vary company to company and deal to deal, below is an example (and just an example):

Physical CD’s, cassettes, Vinyl                              20% deduction 
DVD’s and Videos                                                                           25% deduction
CD’s with more than 4 panel inserts         25% deduction
Records with more than 6 panel inserts      30% deduction
Digital Albums                0% deduction 
Anything not covered above       35% deduction

Ultimately, the rate must relate to the royalty percentage. For example there is no use negotiating comparatively low packaging percentage deductions if your royalty rate percentage is also low. Our view is that the packaging deductions should be removed altogether in favour of a lower royalty rate. Some of our clients have done this and some have personally funded any non-standard packaging.

Having now discussed packaging deductions, let’s return to our example (15% royalty on a CD with a PPD price of $15) and apply the above standard CD packaging rate of 20%.  Our calculation now looks like this:

PPD                                            $15.00
GST                                            ($1.36)
Subtotal                                                                       $13.64
Less 20% (CD packaging)         ($2.73)
Sub total                                                                       $10.91
Royalty per unit @ 15%            $1.63

So the packaging deduction has reduced the royalty payment from to $2.05 to $1.63.  And this is assuming there were no other deductions for delivery.

Split deals
We said previously there is no such thing as a standard “60/40” or “50/50” split in a deal. They do exist particularly with smaller labels and digital only deals.  They may seem simpler and clearer but they are not. A record company and an artist may have a deal that splits the net profits on a 60/40 or 50/50 basis after all expenses are taken care of.   In this type of deal, all of the revenue is collected, the direct costs deducted and the “profits split.”  These deals need to be looked at a bit more closely. They are easy to manipulate over time and require a constant cross check through the life of a contract. 

They work like this:   income from sales - the expenses = profit ÷ 50% = your royalty
Simple, No! These deals can be a mine field. The expenses taken into account could be some, all or more of the following; 
•    Producer’s costs
•    Shipping
•    Packaging and pressing
•    Travel 
•    Artwork
•    Accounting costs
•    Legal costs 
•    Staff costs (or a percentage of)
•    Songwriter’s royalties
•    Marketing, advertising, promotion
•    Tax
•    Office and administration costs

You need to pay close attention to what is included in these deals such as staff, administration or office costs. There could be a service charge or an hourly rate applied for staff for the company. Likewise what is the marketing allowance and should it be included.   Some artists have argued that marketing should come with the costs of doing business.   After all, the artist is marketing the album by playing gigs and undertaking press commitments. If it’s a 50/50 deal, should the burden be shared 50/50?  However if the company is putting up 100% funds for the album’s recording; production; art work; mastering; marketing  and release it may say it is sharing the risk and burden and should equally share in the spoils. 

Here, the entire royalty amount is also not likely to be paid in each accounting period. A certain amount may be held back for a period to allow for fluctuations over periods. For example, unsold physical CD’s that could be returned might result in a royalty hold back of say 20%.   These split deals are more common in contracts that relate to digital releases only (and independents), because there is less investment required. The reality is that retail physical CD’s are still a major and important source of sales revenue. 

And now for recoupments.
So we’ve looked at deductions, royalty calculation methods and split deals.  So you can sign now.  You will receive $1.63 for every CD sold. Wrong, if only it was that easy.  We haven’t even gotten to recoupments. No matter what royalty rate is included in a contract it means nothing if the costs of the album have not been recouped (recoupments) and it is very rare that an artist will receive a cent in royalties until that happens.  

You can read more about recoupments in our article: Record deals: how recoupments in recording contracts effect royalty payments from record sales.  And make sure you do because they’re easily as important as royalties.

Got a question on an agreement? drop us an email entertainment@mccormicks.com.au

Record deals: how recoupments in recording contracts affect royalty payments made from record sales
A record deal may seem like the Holy Grail to an artist but most record deals contain a number of details which have flow on effects to what and how the artist will actually get paid.  

Because the devil can sometimes be found in the detail, a clear understanding of all aspects of a deal is crucial.  And this is especially true when it comes to the  types of royalties, the way in which  royalties on record sales are calculated  and any costs which are deducted before any payments are made (i.e. recoupments).

In this article we deal with recoupments.

Recoupments
Before a recording artist receives any royalty payments, they will have to effectively repay various expenses and costs to the record company.  These are generally called recoupments.

There are many costs involved in recording and getting an album to market.  It is crucial for a recording artist to understand what is recoupable and what effect this will have on any royalty payments. In essence just about everything maybe recoupable.  Whilst the growth of digital sales and the decline of physical/retail sales does mean that some of the costs of producing, marketing and distributing an album have reduced, it  doesn't change the fact that there are many other costs which still remain and can be recouped (i.e. deducted) from royalty payments.  Some examples of other costs include expenses incurred by the record company across publicity, mastering, advertising, marketing, and Artwork.  Although every cost is potentially recoupable, in practice not all expenses are recouped under every agreement and by every company, but most expenses and all advances are. The right questions need to be asked and clear exceptions need to be identified during negotiations. 

Sample recoupment clauses from “real-life” record contracts

Example 1:
“The advances specified in this agreement, all recording costs, all sums paid to or on behalf of the artist including but not limited to, tour support payments, travel, producers costs  (if any), company staff costs directly attributable to the artist or any payments whatsoever (other than royalties, mechanical royalties, Film Costs* and Website Development* and Maintenance Costs*) are an advance against and are to be first deducted from any royalties (other than mechanical royalties) and fees payable under this agreement and no royalties accruing to the Artist’s royalty account from the exploitation of any of the Recordings are payable to the Artist until all  advances have been fully recouped in full by the Company.”

This translates to:  you don’t get any royalty payments until all the money spent on your album and its promotion has been recovered by the company. The “*” items in this agreement are dealt with in a separate clause limiting the recoupment to 50% which is becoming customary for film and website costs. 

Example 2:
“The artist is solely responsible for all the cost and fees involved in the recording, production,  manufacture, marketing of any albums, or releases under this agreement and any payments made by the company are fully recoupable by the company before any royalties are paid to the artist.” 

This also translates to: until everything has been paid for, there will be no royalty payments or in plain English – there is no such thing as a free lunch. 

A simple example of how recoupments affect a royalty payment calculation, based on the following scenario:

•    CD sales are at the Australian Gold level (i.e. 35,000 sold) 
•    The wholesale price of a CD in this example is $15.00 including GST
•    Packaging costs are 20% 
•    Royalties are calculated at 15% of the wholesale price – GST – packaging costs
•    Recoupments are $100,000 and this is not a high figure for an album.  

The effective calculation to determine what payment would be made to the artist now looks this this:

35,000 sales x $15.00        $525,000
Deduct GST                     ($47,727.27)
Subtotal                                   $477,272.73
Less 20% CD packaging  ($95,454.54)
Sub total                           $381,818.19
15 point Royalty               $57,272.72

Less Recoupments           ($ 100,000)
        
Artist Royalty Payment     $ - 42,727.15

In summary, the above is a very basic calculation and in real-world practice these calculations are often more complex but you get the idea…… $525,000 in album sales can diminish very easily, being a gold selling artist doesn't always translate into earning big dollars and when we say it’s crucial you understand the details of your record deal – we mean it.

The example we've used doesn't take into account whether the artist received a cash advance; or whether they need to pay the producer a royalty; their manager a percentage of the earnings (usually around 15%-20%); the session musicians or, in the case of a band, pay the band members.  Our example also does not include any of the particularities under 360 or multiple rights deals (we will touch on those in a later article). 

As you can see, record deals are not always the holy grail of earning a decent income as a professional musician.  Whilst album or record sales do contribute to earnings, in reality many artists find a significant part of their income is earned through performances.  And in the cycle of the music business, an active approach to touring and performing can deliver immediate income as well as helping to drive album sales more than any other marketing activity.  

When it comes to royalties the recording artist, record company, writer and publisher are all entitled to a slice of the pie whenever their song is played, used or bought by an end user (like me or you buying a CD).

Because a song can be played, used or bought in many different ways, this simple concept gets more complex in its real world application.   Everything from radio, live performances, advertisements, downloads, right through to sheet music may attract a royalty payment.  

So what types of royalties are available?

Mechanical Royalties
These types of royalties are paid to the artist, songwriter and publisher based on the sale of recordings that are reproduced on different types of media such as CDs; tape; ringtones; download tracks; musical toys; DVD; VHS or computer games.

Performance royalties
When a song or composition is played or performed either live on stage, recorded, broadcast or via web transmission, a royalty is owed to the songwriter and publisher.  Royalty payments are also owed if music is played in music cafes, karaoke jukeboxes and television advertisements. Users of music will need to obtain a performing right license from a music society such as APRA, which the composer, publisher and performer have subscribed to.

Print rights
These are royalties paid based on sales of printed sheet music or downloading of lyrics. 

Digital rights
The performer and songwriter are entitled to be paid royalties for music used on the internet or by wireless technologies (mobiles). These include webcasting, streaming, and downloading of music.

Synchronisation royalties 
These types of royalties are paid to the artist when a song is used and adapted into a visual format.  Musical scores can be adapted and used in film, television advertisements, videos or live theatre.  Synch exposure can provide a much needed boost to an artist’s income and profile.  

Foreign publishing royalties
These royalties are paid to the artists when their music is licensed and published outside of Australia.  For example, if Brazil wished to license the rights to play ‘Land Down Under,’ at the Australia v Spain World Cup final (dare to dream!).  

Question? entertainment@mccormicks.com.au