Games the Employers (and Agents) Play

September 1, 2014

Ray Hair  -  AFM International President

Even before it received rank-and-file approval late last month, the AFM’s new Video Game Agreement was already in use in Los Angeles, despite a crusade against it by an assortment of Hollywood employers and composers who were offended two years ago when the International Executive Board jettisoned a 2006 agreement because it contained inferior wages and conditions that undermined other existing Federation media agreements. The IEB’s move followed an August 2010 decision to require the true employer—the game publisher—to assume final responsibility for session agreements rather than third party contractors and composers, who were hiring the orchestras to score the games, but had no control over the eventual use of the product. Our new video game agreement not only improves wages, but also preserves producer obligations to pay musicians additional fees for non-franchise use.

Some composers, and the agents who book them, have also expressed increasing concern toward our efforts to stop the offshoring of soundtrack jobs through our Listen Up! Campaign. Many of those same agents and composers line themselves up with Lionsgate, a company that rakes in billions of federal and state taxpayer subsidies for its film productions annually, and then runs away to other countries to score their pictures. Of course, they are competing for Lionsgate’s business, and their attitudes are hardly surprising when you look at how composers are booked for TV, films, and games. 

The trend by media companies to push the booking agents into contracting composer compensation as an all-in “package deal,” one that lumps together the composer’s creative fee and all production costs, including music prep fees and payments for recording musicians, has aligned composers squarely along company interests—the unquenchable thirst for additional profits. The package model invariably pits the economic concerns of the composer against those of the musician, since the composer’s package causes the musician to look to the composer, not the company, to put bread on the table.

Here, in the race to get booked for a film or game, the composer will naturally seek to conserve package capital and cut company costs by competing to deliver the soundtrack at the lowest possible price, with no strings attached. That creates downward pressure on musicians’ wages, benefits, and also important residual and reuse protections that are the standard with all other workers employed directly by the company, up and down the production line.

When musicians and their union are blocked from dealing directly with the media companies, the composers unintentionally become collaborative tools for companies that seek to profit by avoiding industry standards, which include good benefits and residual or reuse fees. The result is a position of weakness for musicians, who must hazard the composer’s economic relationship with the company, where the “capital vs. labor” equation is clear. In the composer’s package, every production dollar paid to recording musicians, arrangers, and copyists is a dollar the composer can’t keep. And remember, the composer’s agent gets paid by commissioning the entire package deal, production costs and all.

The composers, then, are stuck in the middle between the agents, the companies, and musicians. They are forced to accept unfair burdens themselves as a condition of their bookings. Theirs is an uncomfortable situation, a tough spot that many wish was avoidable, but appears impossible to change. It is no wonder that composers sought to unionize several years ago to address their issues, and the AFM supported their efforts. It’s also no small wonder why the agents stood in their way. 

This composer/agent/company situation reminds me of events that occurred in the late 1970s and early 1980s when booking agents advanced the view that musicians working in nightclubs, hotel lounges, and on freelance single engagements and concerts were independent contractors and employees of the bandleader, and therefore should not be entitled to direct union representation with the clubowners, hotel managers, or concert promoters, who have always been the true employers of musicians’ services.

In those days, consortiums of booking agents controlled the lion’s share of the hotel lounge, nightclub, and freelance work performed by AFM members. The agents were able to control the work by entering into exclusive arrangements with artists and groups on the one hand, and with the employer-purchasers on the other. If you have the hot acts, you can call the shots.

By leveraging the exclusive representation of a blockbuster artist, an agency could control the purchaser’s buys through the prospect of future bookings of that blockbuster and other strong agency artists. As a hypothetical example, if a purchaser, also referred to as an “account,” wanted Louie Armstrong, the booker might suggest that, when a date was confirmed with agency artist Bobby “Blue” Bland, then the Louie Armstrong date could be discussed.

The agent’s game was to book the employers up as far in advance as possible, in exchange for dates with the agency’s prime attractions, putting the bookers in complete control of the accounts, which in turn increased control over the services of musicians. On many occasions, when the bookers saw an opportunity to drive a wedge between the employer-purchasers, the union and its members, they did not hesitate to do so.

Certainly the agents did not want artists’ union activities to interfere in the tight relationships with their “accounts.” The agents worked with the accounts to insulate themselves against the regulation of wage scales, benefits, the capping of agency commissions, and against reprisal for any unfair labor practices committed toward musicians in connection with an engagement. 

And in the freelance single engagement sector, many agents eventually sought to deprive artists of any direct relationship with the purchaser—the “double-contracting” model—where the employer contracted for an act directly with the agent, who in turn contracted with the act for a much lower price and pocketed the difference.

That said, for any professional musician, artist, or composer, there is nothing better than a good agent—one who avoids the games employers play, and does not place their own interests ahead of those who create and perform the music.

By the way, there are some excellent AFM booking agents. Contact Michael Manley, director of our Touring and Booking Division, (mmanley@afm.org) for a list of franchised AFM agents or visit www.afm.org/resources/booking-agent-search.

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