If You Ask for a Contract, Will You Lose the Gig?

January 1, 2016

Alan Willaert  -  AFM Vice President from Canada

Off-contract, aka nonunion, aka “dark” are all synonyms for when members choose, or are talked into, not submitting the properly-executed forms associated with AFM agreements or local tariffs.
The AFM provides legally-tested contracts and report forms for use by members for all types of musical engagements to protect the work they do and the products they create from capricious misuse and unauthorized additional uses. In a live engagement/touring scenario, they are your protection against default, cancellation, and double bookings and your guarantee of the agreed upon fee, proper working conditions, and pension contributions, as applicable.

Sadly, many members have strayed away from taking advantage of these forms, citing a variety of excuses. In some cases, promoters, independent labels, cable TV, or venues offer a substitute contract created by their lawyers. More often than not, these contain language that is beneficial to the engagers, not the musician; or there may be elements that are in conflict with our contracts or the AFM Bylaws. In all cases, they lack Schedule 1, which contains the primary protection for our members against misuse. In the case of TV or recording, their contracts circumvent industry-standard agreements negotiated on behalf of the AFM for its members. Ultimately, this amounts to an expropriation of members’ rights. That alone should be enough to convince you to file accordingly and on every gig.

In the case of live gigs, many musicians cave when a venue owner says, “I don’t sign contracts. I’ll find someone who will work without one.” Meanwhile, that same person gladly signs contracts for beer and alcohol delivery, for any required electrical and plumbing work, parking lot snow removal, and building repairs or upgrades. The only people who he convinced to go without a contract are the musicians. Shouldn’t it set off all kinds of alarm bells in your mind knowing he/she doesn’t want a contract? Shouldn’t they also want one to ensure you will show up for the gig? Maybe we shouldn’t call it a contract, but a “guarantee of performance.”

There are several ramifications to not securing a signed contract. First of all, there is no eligibility for the “Road Gig” programme. That means no cash in the event of a default and no AFM representation in court. In the event you are ever audited by the Canada Revenue Agency (CRA), copies of the contracts for all your gigs go a long way toward validating income derived from music.

If you are working in the jingle industry, working off-contract can be exceptionally expensive. Since most advertisers buy commercials in 13-week cycles, and in Canada reuse of a commercial means an additional payment of 50% of the original contract fee, the absence of a contract can mean the loss of hundreds, perhaps thousands, of dollars, especially if the commercial “moves over” to another medium. And, of course, you miss out on contributions to one of the best pension plans in the world.

For any recording you do, from sound recordings to CBC to film work and so on, any additional use of that musical content outside the product it was recorded for generates a new use payment. In other words, you are paid the session fees, or an excerpt (clip use) fee, for the new medium/product into which the content is being synchronized. No contract means the AFM has no record of the recording, which means we cannot track what happens to the content, and we are unable to bill for new uses. And of course, there are no pension contributions.

Sound recordings are unique in that the pension fund reports to the Special Payments Fund (SPF) all sessions done by AFM members in a given year. This results in a pool of money that is paid out to all the members who have done a session within the previous five years. The more sessions you performed on, the larger your share of the pool.

Money is also paid into the Music Performance Trust Fund, which results in hundreds of paid gigs that are free to the public each year.
Work done under the Motion Picture and TV Film Agreements create obligations for the distributer to pay into the Film Musicians’ Secondary Market Fund (FMSMF) whenever a covered film reaches certain levels of distribution. This can also be lucrative, depending on the number of sessions involved and the monetary success of the film. Off-contract means none of this happens, and again no pension contributions.

While not requiring a signed contract may appear to be a “choice” to musicians, it is anything but. All you have done is failed to obligate the purchaser to the terms of Schedule 1 (on a live engagement contract), failed to obligate them to pay the prevailing scale, and failed to obligate them to make pension contributions on your behalf.

The same can be said for all the recording contracts. For jingles you are failing to obligate the purchaser to reuse, new use payments, and pension. For sound recordings you are failing to obligate the purchaser to payment into the Special Payments Fund, new use, and pension. And for films you are failing to obligate the producer/distributor to proper session fees, payments into the FMSMF, health and welfare payments, and pension. The list goes on.

To the musician who is content to take whatever is offered for the gig, this may seem like no big deal. As long as nobody finds out, right? Well, consider this. The Funds that are mentioned above—the SPF, MPTF, FMSMF, and Musicians’ Pension Fund of Canada—are all currently in relatively good shape because of previous generations of musicians who filed contracts and obligated the employers to make the required contributions. After a generation or two of members letting the employer’s off the hook in droves, the inevitable result will be reduced contributions and perhaps even the disappearance of those benefits to musicians.

The AFM has been around since 1896, fighting for improvements to the lives of musicians in every aspect of the business, especially when it comes to fees, benefits, and residual payments for recorded work. It saddens me greatly to know that musicians today have so little appreciation for their union and stand to jeopardize 120 years of work because they refuse to stand up for their right to perform under their union’s agreements, and obtain a signed contract.

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