Frontiers in Art: Artists Moving Across Borders
Originally Published in The Art and Cultural Heritage Law Newsletter | Summer 2020
This article is part of the 2020 ABA Special Project entitled Frontiers in Art, which aims to provide a comprehensive overview of a little-studied subject of art in the context of globalization: the circulation of artists around the world.
By: Anne-Sophie Nardon (1) and Betina Schlossberg (2)
The movement of artists across borders is an essential part of artistic production. The development and diffusion of a country's artistic activity cannot take place without the mobility of goods and people. Throughout history, artists have moved across borders for a variety of reasons; either by choice or forced to move by wars, natural disasters, and other hardships. In the art installation "When Home Won't Let You Stay", Chinese artist Ai Weiwei explores how contemporary artists are responding to the migration, immigration and forced displacements of today. His is just one example of the use of migration and exile as recurrent themes in art as well as in the lives of artists around the globe.
Crossing borders is seldom easy for artists—even if their presence is specifically required for an exhibition or conference. Within the intersection of Art and Immigration Law lies the paradoxical reality that oftentimes works of art and other cultural goods are able to move much more freely than the people who create them.
This article addresses an aspect of art law which, for once, focuses on the artist as a person, rather than on the art work. Here we will refer to the European Union, with particular attention to France, and to the United States.
For foreign artists entering the EU, there are two visa options, depending on the length of stay. For short stays (less than 90 days), the EU has a visa process implemented by the Regulation of July 13th 2009 (3), which facilitates visas to nationals of countries not otherwise eligible for them. A Directive of May 2009 (4) also allows artists who demonstrate the need for frequent travel to and from the Schengen area to receive a multiple-entry visa valid for a longer period of time.
Depending on a variety of factors including country of origin and nature of work, some artists staying in the EU up to three months will have to apply for a short-stay Schengen work visa (Schengen Type C visa). This visa allows artists to fulfill their business obligations and travel to all EU countries within 90 days.
For longer stays (90 to 180 days), artists must apply for a national or Schengen Type D visa – known as a Skills and Talent Passport in France- which waives the need for an additional work permit. An applicant for this “passport” must be a performing artist (salaried or self-employed), author of a literary or artistic work, or artist of international renown. Support workers, such as show technicians, cannot apply for a skill and talent passport but may be exempt from temporary authorizations for short-term contracts. If applying in France, artists must provide a work contract and sometimes business licenses and documentation of the nature and duration of trips may be necessary. Practitioners should note that the Type D visa allows short stays in other countries of the Schengen area, but does not entitle an artist to work in another country.
Like immigration to the EU, foreign artists traveling to the United States permanently or temporarily often require visas to enter. Typically, a trip of under 90 days will be straightforward using a visa waiver or a visitor’s visa. Other stays, even when short, may require a specific visa depending on the activities the artist will carry out in the US and whether the artist will receive payments. For visa purposes, artists can be asylees, refugees, visitors, culturally unique, or recognized as extraordinary in their field.
The visa type often considered as the “artists’ visa” is in fact a classification for people with extraordinary ability in the sciences, business, education, athletics, or the arts. (5) The interpretation of “art” in the regulations is broad (6) and allows for the applicant to prove that his/her work should be classified as art. Therefore, some fields outside the classic art world can apply – examples include the gaming industry, marketing, or business management of art organizations. Whether or not an adjudicator will consider the field in question to be a valid art form is another question, and may cause additional delays and fees accrued during the application process. As with any work visa in the US, artists’ visas are based on evidence from itineraries, employers, and job duties; moreover, there may be constraints on types of activities an artist may perform while in the country.
While this article provides an overview of legal processes surrounding immigration of artists, the complexities of entry into the EU and US are extensive and often convoluted. The many factors an artist must consider when traveling to the EU and US reveal the often extreme limitations of movement against which artists must consistently struggle to be successful in their careers and bring their productions to new locations and wider audiences.
Anne-Sophie Nardon is a lawyer based in Paris, specialized in Art law. She also serves as Vice-chair of the Art and Cultural Heritage committee of the ABA, in charge of special projects.
Betina Schlossberg is a lawyer in Ann Arbor, specializing in immigration and art law. She is also Vice-Chair of the Immigration committee of the ABA Section of International Law, in charge of programs.
REGULATION (EC) No 810/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 July 2009 establishing a Community Code on Visas
COUNCIL DIRECTIVE 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purpos-es of highly qualified employment
INA 101(a)(15)(O)