Getting Paid for Location Recordings Made While on Tour

September 1, 2021

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by Pat Varriale, AFM Electronic Media Services Division Director and Assistant to the President

One of the many types of projects the EMSD is involved with is musician recordings that take place at venues in the United States and are ultimately released as sound recordings.  The following narrative describes one case for which the EMSD has been attempting to collect payments due to musicians for several months.

Recordings were made of musicians performing with a high profile recording artist while on tour. The performances were subsequently released as a sound recording. AFM EMSD filed a claim against the signatory record company for payments due the musicians under the Location Recording provisions of the Sound Recording Labor Agreement (SRLA).

This seemed straightforward until representatives of the record company balked at its obligations, citing that the performances were recorded by the artist’s management company and not the label, even though the label acquired and released the product.

Another obstacle the label attempted to use against paying for the recorded performances was the fact that the touring agreement with the musicians contained provisions stating that the payments under that agreement included any recordings and use of the performances. Upon consultation with our colleagues in the AFM Touring/Theatre/Booking Division, we confirmed that the agreement was not filed with the AFM. Further, the “touring agreement” was with each individual musician and their employer. Not all of the musicians signed the agreement, yet the musicians worked under it anyway.

If the musicians had had an AFM touring agreement in place, the obligation would have been between the AFM and the employer. This would have given the agreement more clout in terms of enforceable recording language and benefits, such as pension, which is an important legal advantage.

To complicate matters even further, live performance contracts required by the AFM, were not filed with the local where the live performances took place. The live performance contract contains protection if the performances are recorded.

Despite all these roadblocks, which weakened our position, it appears as if the AFM EMSD will prevail with a satisfactory settlement and be able to secure payments for the musicians. However, we have spent many months on what should have been a routine matter. 

If the record company had succeeded, the musicians would have missed out on “upfront” location recording payments due under the SRLA and lose payments they would be entitled to from the Sound Recording Special Payments Fund. Plus, they would have received no “new use” payments if the product is licensed for further use.

It is strongly recommended that musicians, or their local on their behalf, contact the AFM when they are being offered the opportunity to participate in a tour. They will be made aware of the possible pitfalls, if the language in the touring agreement is not consistent with AFM standards and what steps can be taken to correct the situation.

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