Tag Archives: contracts

A Quarter-Million Reasons You Should Record Under a Union Contract

Twenty Years After His Death, Violist Rollice Dale’s Residuals Continue to Fund Music Scholarships for College Musicians

Since 2001, more than one dozen student musicians at the Thornton School of Music in California have benefited from a $230,000 endowed scholarship—all of which came from the posthumous residuals of one AFM musician. While violist Rollice Dale was not a household name, for 30 years he was an active and sought after studio musician in Los Angeles who performed on hit records and film and television soundtracks. The scholarship funding from his musical legacy, created by the philanthropy of Dale’s family, was made possible because Dale, who was an AFM member for 35 years, did his recording under union contracts, which assured that he would be payed the residuals he was owed for his work.

“From what I can tell, without the union [Rollice’s career] wouldn’t have existed. He had a great respect for what they did for him and how they did it,” says Orville Dale, Rollice’s brother and the administrator of his estate. “I am so proud of this endowment because I know this is something my brother would love because of his love for music, but also because I know what musicians have to go through [financially] to get an education.”

The Rollice E. Dale Memorial Music Scholarship has been “tremendously impactful” to the classical strings performance program at the University of Southern California’s Thornton School of Music, says Dean Robert Cutietta. “Scholarships continue to be one of the most important priorities in higher education. But this scholarship has an impact that goes beyond assisting students with the high cost of tuition,” he says. “It opens the door to minority students who want to go into a field that, unfortunately, does not reflect the diversity of our communities.”

Rollice Dale was born in 1941 in Los Angeles, where he lived his entire life. He grew up attending public schools, and first discovered the viola as a young teen. “I think of when my brother came home from junior high school and he brought this oversized violin,” Orville Dale remembers. “My father looked at him and said, ‘What are you going to play that for? You can’t make a living playing that damn thing. What are you going to do with it? Get a trumpet; get some drums so you can make a living.’ And of course, my brother being a personality like, ‘I don’t care what you like, I’m going to do it,’ [kept with it].”

Dale’s father not only allowed him to play the viola, but also bought him his first viola and bow, as well as a banjo so Rollice could build finger strength. “My father was very, very proud of him, and my sister and I were very proud of him because we’ve often said that, innately, he had talents,” Orville says. “We were like tiny skyscrapers. We were only maybe eight or nine stories high. My brother musically was 20 to 30 stories high. Even if he was difficult, he was still quite remarkable.”

Rollice received his Bachelor of Music degree in viola performance from USC Thornton School of Music in 1965. He joined the AFM that same year and was a member in good standing of Local 47 (Los Angeles, CA) until his death in 2000 at age 59. In his early years, Dale taught music in the public schools. As a professional musician, he performed with the Milt Jackson Quintet with Strings, in various symphonic orchestras, as well as in studio, film, and television productions.

Some of the artists he played with included John Coltrane, Barbara Streisand, The Beach Boys, Dean Martin, BB King, Lionel Ritchie, Smokey Robinson, and Earth, Wind, and Fire. Some of the albums he was featured on include In My Lifetime by Neil Diamond, Roots by Quincy Jones, That’s What Friends are For by Johnny Mathis & Deniece Williams, Manilow Sings Sinatra by Barry Manilow, Porgy & Bess by Cleo Laine & Ray Charles, Timepiece by Kenny Rogers, Street Songs by Rick James, and Welcome Home by Carole King. Dale played on numerous television and film scores. The films included Indiana Jones and the Temple of Doom, The Color Purple, All the President’s Men, Klute, Enter the Dragon, and The Thief Who Came to Dinner. He also performed for years in the Academy Awards Show Orchestra and the Grammy Awards Show Orchestra.

Dale spent 30 years working as a professional musician before his death. His list of recordings was both substantial in number and impressive in the caliber of artists with whom he worked. California State Assemblyman Roderick D. Wright issued a memorial resolution honoring Dale as “an accomplished classically trained violist, a pioneer among persons of color to be chosen to perform in symphonic orchestras in Los Angeles as well as the top recording and television production studios,” and for “his efforts to mentor and expose children of various backgrounds to all the richness of music.”

Dale’s brother Orville became his beneficiary, and Orville began receiving residual checks from his brother’s estate from the AFM and from the Film Musicians Secondary Markets Fund (FMSMF). Orville Dale has now been collecting residuals from the union—mainly through the FMSMF—for the past 20 years, with checks ranging anywhere from 22 cents to $15,000. Orville and his sister Sandra Maria Navarro decided immediately upon receiving their first residual check from their brother’s estate that they did not need the money and wanted to donate it to a worthy cause. They created a scholarship at their brother’s alma mater, the USC Thornton School, in his name to assist undergraduate or graduate minority students, particularly classical performance majors with a preference for strings.

The scholarship started with a $25,000 contribution from the Dale family, and now, 20 years later, it is up to $230,000 and has assisted approximately 16 music students in that time. “The fact that this is an endowed scholarship means that the fund will exist in perpetuity which has several tremendous benefits,” Dean Cutietta says. “One, it honors Rollice’s life and legacy and that of his family. Two, it solidifies our commitment to educating students that have an interest in studying classical strings. Three, it provides us the resources to attract and retain some of the most talented applicants from around the world. And four, it ensures that diversity will continue to be a component that we value and strive to continue to achieve.”

FMSMF Director Kim Roberts Hedgpeth says that while the FMSMF cannot directly send residuals to entities such as scholarships or charities, “it is certainly admirable of those beneficiaries who choose to support music education by donating the residuals they receive to a worthy music scholarship for the benefit of tomorrow’s musicians.” In addition, she says, “the FMSMF works with beneficiaries who do not want to receive residuals on ways to support the working, and sometimes financially struggling, professional musicians of today.”

For Orville Dale and his sister Sandra, donating their brother’s residuals to benefit music students is just the right thing to do. “We have an obligation to help young people,” Orville says. “I think about what it was like for my parents to put me through a private university, how they struggled. My brother did get a lot of scholarships when he was at the Thornton School. And believe me, we wouldn’t have gotten it as middle class folks without that help.”

Orville says he hopes that union musicians who do not need to depend on their residuals to pay their bills will consider funding their own music-related scholarships in this way. “It’s been a wonderful experience,” he says. “I know wherever my brother’s spirit is, I’m sure he puts his blessings on what we have done with these monies.”

Marc Sazer

Negotiating Pivotal Media Contracts in the Age of New Media

by Marc Sazer, President Recording Musicians Association (RMA) and member of Locals 47 (Los Angeles, CA) and 802 (New York City)

Marc Sazer

Our AFM negotiates three major filmed media contracts, the Motion Picture, Television Film, and Live TV/Videotape contracts. Together, these CBAs are responsible for more than $150 million of AFM wages and support the livelihoods of thousands of AFM musicians. This year, we are facing pivotal negotiations for all three. Since all of our electronic media contracts are interdependent and intertwined, there will be historic consequences for our shared futures. AFM President Ray Hair has written a series of IM columns over the past few months that give a strategic overview of trends in recorded media, which I recommend you review. This column focuses on the immediate here and now of our contract negotiations.

Unions representing directors, writers, actors, and others who work on film and television shows negotiated significant improvements in new media in 2017. For all of us in the industry, it has become clear that new media is both the future and the present.

  • “Disney Makes $52.4 Billion Deal for 21st Century Fox in Big Bet on Streaming” (The New York Times, December 14, 2017)
  • “Disney to End Netflix Deal and Launch Its Own Streaming Service” (The Verge, August 8, 2017)
  • “Cannes Film Festival Takes on Netflix with New Rule” (The Guardian, May 11, 2017)

We are facing a seismic shift in the way filmed media is produced and distributed. More and more, our jobs will come from projects created initially for streaming, rather than for theaters, networks, or cable. How will professional musicians be able to make a sustainable livelihood?

We know that recording music budgets are generally shrinking and that music budgets for new media are even tighter. In film and TV, musicians’ wages are now almost always dependent on composer’s packages, rather than studio budgets. What can we accomplish in these negotiations that will allow us to make a living in this new environment?

The other unions negotiated increased residuals for all types of new media, as well as sharply shortened streaming windows before residuals are triggered. They also negotiated substantial residuals for advertising-based video on demand (AVOD), such as YouTube, network websites, etc. Payments for subscriber video on demand (SVOD), such as Netflix, Hulu, and Amazon, will now be subject to sliding residual scales based on the number of subscribers the service has. For example, Netflix will pay a higher residual rate as a result of having more than 20 million subscribers. The other unions have also moved from freely negotiated scales (which still prevail for low budget streaming projects) to set wage scales for high budget SVOD (HBSVOD). HBSVOD are programs made for SVOD that have budgets equivalent to theatrical and broadcast television programs.

Each of our sister unions negotiated upfront wage increases, as well as different methods of increasing contributions to their respective health and pension funds. Three years ago, film and television musicians voted to send 1.5% of our residuals fund as an unallocated contribution to our pension fund. The AFM has prioritized strengthening our US pension fund in each of our other AFM recording contracts as well.

Over the coming months, we will continue to reach out to the musicians who work under these contracts so that their voices can be heard. However, this round of negotiations in 2018 will impact every AFM member in the long run. Our greatest strength lies in our solidarity.

Farmworker Unions Ensured Contracts Through Mediation

The California Supreme Court, in a unanimous ruling, upheld a law that aims to get labor contracts for farmworkers whose unions and employers cannot agree on wages and working conditions.

The law prevents the employers from stalling contract talk until the workers lose their enthusiasm to organize. Under the law, the California Agricultural Labor Relations Board can order mediation to achieve a contract and gives mediators the authority to set the terms of the agreement if there is a stalemate. Unions can seek mediation 90 days after demanding to bargain.

Legislation Ends Ontario College Faculty Strike

A five-week college faculty strike in Ontario was ended when the government passed back-to-work legislation. The strike, which began on October 16, brought 12,000 workers from 24 colleges to the picket line in hopes of gaining job security.

About 80% of college faculty members are part-time workers being paid less than their full-time colleagues with far fewer benefits and little job security. Collectively represented by the Ontario Public Service Employees Union (OPSEU), the workers were demanding academic autonomy and longer contracts.

OPSEU is challenging the Ontario government’s Bill 178 back-to-work legislation in court, and disputing this blatant trampling of labor rights that forced the faculty back to work on November 21. Ironically, on November 22 the government passed Bill 148, which improves certain labor standards.

British Report Says Career Teaching Music Is Becoming Unviable

A new report shows that British music teachers are suffering from low play and less job security than ever before. The British Musicians’ Union (MU), the authors of the report, warns that job dissatisfaction and stress are on the rise due to widespread lack of financial support.

The current music education provision in England provides for “peripatetic” music teachers in schools, who travel from location to location to teach children to play instruments. They are frequently either self-employed or have contracts that provide no regular work and sometimes clauses that restrict them from working elsewhere. They may even be charged for the use of teaching rooms. The MU recommends protecting the future of music in Britain by providing the teachers with fit-for-purpose template contracts.

Electronic Media and the Role of Live Performance Contracts

Electronic Media Services Divisionby Patrick Varriale, Director, AFM Electronic Media Services Division

You may wonder why an issue focusing on electronic media has space devoted to live performance work. It would seem to be a contradiction in terms. In the following  paragraphs you will learn about this distinct and important connection and why it is essential for locals to take an aggressive approach in seeing to it that the services of musicians are protected.

When a live performance is recorded or taped, as most are these days, if there is no signatory to an appropriate AFM agreement covering the recording/taping, the live performance contract will play a key role. It should include “paragraph 6,” which contains words to the effect: no performance shall be recorded/taped in the absence of an AFM agreement to cover the recording/taping of the musicians’ services. This wording enables the Electronic Media Services Division (EMSD) to pursue the appropriate electronic media payments—wages, residuals, royalties and benefits—against the “purchaser” of the live gig.

If live work is performed under a collective bargaining agreement between the AFM local and the employer, or if it is done under an AFM Pamphlet B touring agreement, any recording that takes place will most likely be covered. For instance, there is an artist who is signed to a Pamphlet “B” Touring Agreement, which covers the live services of the musicians. The artist is also signed to the proper AFM electronic media agreement for the recording of the performances. Therefore, the musician receives additional payments covered by that electronic media agreement, including wages, pension fund contributions, health and welfare (filed on the relevant AFM B Report Forms), and any ancillary payments stemming from that agreement.

However, in situations where there is no collective bargaining agreement or AFM-approved touring agreement—whether it is for a church service or an artist performing at a major venue—in many instances the live performance contract is not filed to cover the date. Therefore, the AFM is hard-pressed to secure additional electronic media related payments.

As a recent example, it was brought to the attention of the EMSD that a group of musicians from a church were taped. That taped performance was exhibited on an ongoing basis over the Internet. With no AFM agreement in place to cover the taping or live performance contract, the EMSD has been unable to pursue payments due the musicians that would have applied under the AFM’s Internet Streaming Agreement. Unfortunately, there are many similar situations.

The solution is relatively simple. When engaged for a live performance, musicians should check ahead of time with the local having jurisdiction over the venue to find out the status of the live contract. This will give the local the opportunity to provide the “purchaser” of the musicians’ services with the appropriate contract. 

Locals can take an active role in policing activity that takes place within their jurisdiction to safeguard its members’ work. This may be easier said than done, but more than worth it to ensure that the services of musicians are protected to the utmost degree.

reality TV

Today’s Reality TV Contracts

by Mary Beth Blakey, Contract Administrator AFM Electronic Media Services Division

A conundrum that we frequently face when administering television agreements is how they apply to so-called reality TV. Early on, there was a tendency to designate all reality television programs as falling under the Television Videotape Agreement. However, as the years went on and subgenres within reality programming became more defined, the contract administrators in the New York and the West Coast offices were able to reach a more definitive consensus as to which reality shows fall under Live Television agreements, and which fall under the Television Film Agreement.

The distinctions become much more intuitive once you can place a given program under its particular subgenre within reality television.

Documentary Style

The current overwhelming majority of reality programming is “documentary style,” which is almost exclusively administered and interpreted as Television Film content. 

  • Dating—Shows such as the The Bachelor/Bachelorette, Are You the One? and Coupled, featuring contestants attempting to find love, are all TV Film programming. If you receive a call to perform on one of these shows, contact Matt Allen in the West Coast Office to discuss the signatory status of the show, as well as applicable sideline rates. 
  • Soap opera style/celebrities—Programs such as Keeping Up with the Kardashians, I Love Kellie Pickler, Love & Hip Hop, as well as The Real Housewives of … would also all be considered Television Film content. If you spot an AFM sound recording being used in one of these shows, please alert the New Use department in the West Coast Office. 
  • Nonvariety competition—These are shows that feature competition and elimination, but without a variety or musical element. Think Chopped, Project Runway, or Survivor. These programs are also interpreted and administered under the Television Film agreement. 

Variety-Based Competition

“Variety-based competition” is the only subgenre of reality programming that should be consistently contracted and reported under the relevant live TV agreement—Television Videotape, Basic Cable, or Non-Standard Television. The Voice, America’s Got Talent, and Dancing with the Stars are great examples of competition shows highlighting musical performances, putting them squarely in the scope of the Television Videotape Agreement.

Contractors working on new shows of this type should contact Mary Beth Blakey in the West Coast Office for the latest applicable rates and terms. 

Be Careful What You Sign—They Don’t Care About You; They Want Your Song

Over the last few years, I have noticed an increase in the number of panels that feature music supervisors at music festivals, informational sessions, and music/film events. These are the folks responsible for selecting the music that is synchronized to video, television, motion pictures, commercial announcements, video games, and so forth. Many have experience as musicians, producers, agents, managers, or with business or law. But the primary prerequisite is a familiarity with a wide array of music styles, genres, and artists/bands. They may work for a specific company or freelance, picking music to portray mood, feeling, and emotion to match/enhance video content.

The idea of presenting a panel about music supervision and placement of songs is, on the surface, useful. However, the information presented is usually skewed to benefit the panelists and their company, not the musicians and songwriters in the audience eager to have their songs heard. At least, that has been my experience at such events.

These “experts” generally give attendees advice like: don’t submit more than three or four songs, properly prepare and label the submissions, and have instrumental versions ready. While this information is helpful, other stuff is not. For instance, it’s often stated that you should not expect payment the first time, or first few times, until you are known; or, to expect a low remuneration, perhaps $50 or less. There is little or no mention of the fact that synchronization is contained within the Right of Reproduction under the Copyright Act, and that the only way to escape payment is if the songwriter waives these rights. Now, go back and read the title of this article again.

There is also no mention of the rights AFM members have under contract law—that of new use payments required under the Sound Recording Labour Agreement. When you record for a signatory label, or for a label that has signed a Letter of Adherence and filed a B-4 report form, all the musicians on the recording are entitled to be paid the prevailing rates for a session as specified by the agreement that covers the type of medium the track is being licensed into. (These payments are in addition to negotiated synch fees.) While this is an obligation of the label (to pay those fees upon licensing the track), often they pass the responsibility onto the licensee in the master licence agreement.

Many times members are handed a document, either during the recording session or during licensing negotiations, asking them to “waive” certain rights, among them being the secondary payments for new use called for under our agreements. Don’t sign these papers! In fact, members have no authority to sign such a document when it circumvents the terms of one of our scale agreements, and therefore, such a wavier is not enforceable. Don’t sign them.

Members may also be enticed to enlist the services of a placement company, such as Sonic Bids or Taxi. Without being specific about any of them, I have seen placement contracts that require the artist to assign all rights, exclusively, to these services. In return, you may receive a percentage of anything they make, if the song is used. The cautionary word here is “exclusive.” This means you no longer are entitled to payments from performing rights organizations such as the Society of Composers, Authors, and Music Publishers of Canada (SOCAN) and Musicians’ Rights Organization Canada (MROC), or agencies such as the Canadian Musical Reproduction Rights Agency (CMRRA), as you no longer have title to those rights. You would only receive a percentage of those rights—whatever is specified in your agreement with the company. Don’t sign a placement contract. Go back and read the headline of this article again.

I have also seen contracts where the requirement is to sign over all the songs and rights, and the company is up front about saying they will rename the tracks and obtain a copyright under their name. Don’t sign the contract.

A better choice is to sign a nonexclusive agreement, where they agree to try and get action on your repertoire, but you still retain the right to make direct deals and collect statutory royalties.

Also, in some of these contracts may lurk language similar to “We do not pay/collect fees required under union contracts.” This is a red flag to not sign, or to negotiate that clause out. These are your rights. It’s your money that they are treating so capriciously. These are rights that, over the years, may accrue thousands upon thousands of dollars. They may also present you with a paperwork that designates the songs you give them as “work made for hire.” Don’t sign it!

Never be intimidated by the panache or cachet of the title “music supervisor.” In the end, they are an employer, attempting to get your music as cheaply as possible for their client. If you are presented with contracts or licensing agreements to sign, please take the time to understand what they contain. I highly recommend the services of an entertainment lawyer before signing anything.

Now, go back to title of this article: “They don’t care about you; they want your song.”

contract considerations

Contract Considerations for Artists Crossing Borders

robert-bairdby Robert Baird, President Baird Artists Management (BAM!)

When you are negotiating to perform in another country, there are certain considerations that need to be taken into account. There may be language problems, or cultural differences. Be sure you are clear on what is being said or written and know that some cultures may not respond as quickly as necessary, especially when the time to obtain a visa has to be factored into preparations for the performance. It is a good idea to have contracts finalized in plenty of time to allow for the processing of paperwork required to enable the artist to enter the country and perform.

I have decided to start trying to secure some gigs across the border. I was wondering if there are any additional considerations I should think about in negotiating contracts in another country.

Here are a few other things to consider:

1) You need to determine who is going to apply for the required visas, work permits, etc., and who is responsible for the costs. Sometimes, the person hiring you can facilitate, and even obtain the required paperwork. But if the artist has to negotiate the application process, then it is important to know who will pay the required fees.

2)  In North America, with the fluctuating Canadian and American dollar, a decision has to be made as to which currency should be used for payment of the terms of a contract, and even what rate of exchange will be used, and when it will be applied to the payment. The same considerations would apply to foreign contracts: what currency will be used for payment and when will payment be made. In addition, how the payment will be made is important: will it be by cash, wire transfer, money order, check, or cheque? In the latter case it may be impossible or expensive to cash a cheque drawn on a bank in another country, and this needs to be clarified. If there are processing fees, who will pay them?

3) Who will be paying the artist’s travel costs and accommodation? These costs need to be factored into the artist’s fee and should be addressed in the contract negotiations.

4)  More often, presenters are asking artists to provide their own liability insurance and, again, this is an added cost for the artist. It is possible that the presenter can add the artist to an existing insurance policy and this should be discussed.

5)  In the event that a performance needs to be cancelled, due either to force majeure or for any other reason (acceptable reasons should be clarified in the contract), there should be an agreement as to the consequences for either party. Does the artist have to cover some of the presenter’s costs, if he or she cancels? Does a deposit have to be returned? Does the presenter have to cover some of the artist’s costs, if he or she cancels? And is the presenter liable for the entire fee, if the cancellation comes too close to the concert date?

6)  Many jurisdictions are required to withhold taxes from an artist’s fee, unless the artist can provide a waiver of withholding. Investigate ways to avoid withholding.

7)  How disputes are to be handled should be specified in the contract, along with a specified jurisdiction to avoid having to fight a legal battle in another country.

In general, clear and constant communication will make life a lot easier for the artist negotiating terms to cross a border to perform.

—I welcome your questions and concerns.
Please write to me at: robert@bairdartists.com. While I cannot answer every question I receive in this column, I will feature as many as I can and I promise to answer every e-mail I receive.

Pour lire cet article dans la visite Français: www.internationalmusician.org/considérations-contractuelles-pour-les-engagements-à-l’étranger.