Indies vs. Labor Law

January 1, 2026

Ken Shirk  -  AFM International Secretary-Treasurer

I like Canada. Like any nation, it has its flaws here and there, but I like it for its geological beauty, because national health care is part of public policy, because its elections are actually representative of the will of the citizenry, because its maple leaf flag reminds one of a connection to the natural world, and because it contains some of my favorite cities in the world.

I especially like Canada because any Canadian musician—employee, independent contractor, dependent contractor, and probably busker—can secure some level of labor union representation and protection in their work. This representation and protection is unavailable to a vast swath of their American counterpart musicians south of the border, thanks to American federal labor law.

Undergirding all American labor laws— and undergirding the US Constitution, in fact—is the idea that Commerce in all its Glory must not be disrupted. It takes no keen observer to see that the scales of American Blind Justice are weighted in favor of commerce and, by obvious extension, in favor of business. That the US has any labor laws at all is not from a sense of social justice, but because historically unions had been very effective in disrupting commerce in pursuit of worker gains, and business needed something to slow down, if not reverse, that union progress. So Americans now have the National Labor Relations Act (NLRA), among others, purportedly protecting workers’ rights, but in fact, operating to suppress workers’ rights.

And what has this to do with American musicians? American labor law is designed specifically to operate on the Employer-Employee relationship, i.e., employees of an employer have the right to form a union to bargain with their employer. But an indie musician in the US likely has no legally-defined employer. A freelance musician, jumping from gig to gig, likely also has no employer within the definition of law. Transactions between those musicians and those who pay for their services fall into the bucket of commerce, not the protections of labor law. Labor law and the legal right to bargain collectively is out of their reach. The harm that this unfairness has brought upon the music profession is both insidious and profound.

Several independent musician organizations have sprung up over the years in reaction to the manifesting inequities. United Musicians and Allied Workers are working to secure mandated compensation for music streaming and fair pay at music festivals. The Music Workers Alliance seeks to regulate the use of AI by independent record labels and protect musicians’ intellectual property. The Indie Musicians’ Caucus of the AFM is pushing for the Federation to broaden and step up its representation of indie artists in all their market areas.

What these independent groups seek is very much in alignment with our union’s goals. The irony is that the very nature of their “employment” (for lack of a more defining term) prevents them from accessing the few rights otherwise available under the NLRA, and without a union umbrella to operate under, they must tread a narrow path to avoid antitrust allegations from industry. The quest for equity and fairness is frustrating and crazy.

Canadian musicians just don’t have to think about these things with the same intensity.

Consumer advocate Ralph Nader, as a candidate for US President in 2000, proposed repealing the Taft-Hartley Act (the act that made the NLRA untenable for workers). That would be a start. But for decades, the entertainment unions have struggled to push their square peg through the round hole of the NLRA. For many of those decades, the AFM attempted to persuade Congress to amend the NLRA to make union representation easier for entertainment workers, but without success. Several states have adopted legislation intended to address the performer’s employment environment, but ended up replacing old problems with new ones.

Perhaps it’s time for Congress to recognize that all of us performers in the entertainment trades are not like other workers and that we should have our own Performers’ Labor Rights Act.

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