Tag Archives: electronic media services

non-disclosure agreement
Electronic Media Services

The Truth About Non-Disclosure Agreements

As of late, the EMSD has become involved in a series of non-disclosure agreements (NDAs). These are offered to musicians engaged by a signatory to the relevant AFM electronic media agreement or third party.

The purpose of non-disclosure agreements is to preserve confidential information including songs, vocal arrangements, and other creative artistic matters that have not been performed publicly. However, the problem we have found is most NDAs go beyond this and to the extreme of compromising the rights of the musicians engaged by the artist. Some of them seek unconditional injunctive relief and remedies against musicians who breach the terms of the broadly written NDA, or prohibit musicians from engaging in protected activity such as discussing terms and conditions of employment with the AFM or other musicians.

In one such instance, an extremely popular act announced it would be going on tour.  The management company advised that it would be engaging large orchestras in each city.  So far, so good.  However, the management company set forth a non-disclosure agreement it wanted each musician to sign, without first having submitted the NDA to the AFM for review. Fortunately, the contractor of the musicians on one stop of the tour had the presence of mind to forward the proposed NDA to the local, and the local in turn forwarded it to the AFM for review.  We found the document to be unacceptable because it asked for rights the musicians could not be expected to waive.

This led to a series of back and forth conversations with representatives of the management company and drafts of revised NDA documents were exchanged. While this process was going on, we notified the locals having jurisdiction over the venues in the other cities that the NDA as originally presented was unacceptable and encouraged them to advise contractors and musicians accordingly.

We ultimately agreed with representatives of the management company on a non-disclosure agreement that would be acceptable to the AFM and that the musicians could sign without jeopardizing their rights.

NDAs are usually prevalent in the television field, and most producers know enough to discuss these agreements with the AFM prior to distributing them to musicians. They want to avoid the “eleventh hour” disruption of production that could occur because they distributed an agreement that was not cleared by the AFM.

These types of documents, waivers, or releases of any kind should always be submitted to the AFM for review to ensure that it will not have an adverse effect on the rights of musicians.  In some instances, the signatory is looking to clear “image and likeness” but they tend to stretch well beyond that aspect.  Musicians should not sign NDAs for AFM-signatory performances or sessions unless they have been assured that the NDA language was agreed upon in its exact form by the AFM. 

The AFM is committed to protecting the invaluable rights of musicians, and we welcome any questions you may have in this regard. Call us anytime at 917-229-0234.

Electronic Media Services

Coronavirus Impact on Electronic Media Projects – Special Agreements

As a result of the coronavirus pandemic, the Electronic Media Services Division (EMSD) has received a number of requests to waive the streaming costs of certain non-symphonic live projects. Our colleagues in the Symphonic Services Division have established conditions for orchestras with collective bargaining agreements.

In an effort to address the impact of COVID-19 for non-symphonic situations, we have established guidelines for potential waivers, which are broken down in the following two scenarios:

1. Password Protected Stream—If the stream of the performance is password protected and viewable only by ticketholders, the AFM costs that would ordinarily apply under the Internet Streaming Agreement (wages, health and welfare, and pension) will be waived. In cases of performances from houses of worship, the password protection can apply to parishioners. This is provided that the musicians are properly compensated at the appropriate live performance fee established by the AFM local having jurisdiction over the performance for any call.

2. Publicly Available Stream—For online availability to the public of a live stream, the payment for the stream will be an additional 10% of the appropriate local live performance fee plus fringe benefit payments.

Our agreements contain “alligator” clauses requiring payments to be made for any use of the stream beyond COVID-19 or in any other capacity.

We hope that the pandemic becomes a thing of the past as soon as possible so that we get back to our lives and business. In the meantime, we are implementing these guidelines to help address this adverse situation.

If you have any questions, please contact Mary Beth Blakey at 213-447-2259 or via email at mblakey@afm.org.

catchy jingles
Electronic Media Services, International Musician

Commercial Announcements Shift from Catchy Jingles to Hit Singles

by Alyson Sheehan, AFM Electronic Media Services Division Administrative Assistant

The jingle, the classic advertising strategy of creating a catchy tune that will stick in the listener’s head all the way from their couch to the supermarket, where they will immediately know “Oh, what a relief it is” to buy Alka-Seltzer.

Despite the effectiveness of these little ditties, many advertising agencies are trading in the jingle tactic for a new approach that took off in the mid-1980s when Pepsi started using celebrities to endorse their products. Suddenly, everyone knew that Michael Jackson drank Pepsi, and if Michael Jackson drank Pepsi, well it had to be cool! Then, every time someone played “Beat It” you found yourself heading over to that vending machine.

Today, agencies have become more concerned with connecting a product to a certain “image” and they use celebrities and their music to do so. While some of our locals still see original recording work being filed regularly for commercial announcements, others see less work every year as agencies switch to licensing prerecorded material. One member noted that he has seen the filing of jingle contracts (B-6 reports) decline 50% in the last 15 years, while the licensing of prerecorded music for commercial use has at least doubled.

In 2015, one major advertising agency, a signatory to our Commercial Announcements Agreement, made the decision to dismiss its VP of music and his entire department, switching strictly to licensing prerecorded music for ads. These agencies are not only utilizing sound recordings, but iconic film scores as well, to evoke specific feelings or emotions in consumers.

So how are we, the Federation, adapting to this growing change in the industry? First, and most important, we urge musicians to keep meticulous records of their original recording session information, especially B-4 session reports. This is because you never know when Apple might decide that a track that you recorded on would set the perfect mood for their next iPhone ad. When they do, you’ll want to be sure you receive any new use payments that may be owed to you.

We predominately use these B-4 session reports when billing advertising agencies for the use of sound recordings into commercial announcements (similarly, we use Orchestra Manager Reports for film scores). Since October 2016, the AFM Electronic Media Services Division has billed for more than $2 million in commercial new use, including musician wages, contributions to our pension fund and to the health and welfare funds of locals who have such funds in place. This number is increasing every day.

As advertising agencies continue to license more tracks from record labels, the volume of bills we create for commercial new use increases just as rapidly. As long as we have evidence that the tracks being utilized were recorded under our Sound Recording Labor Agreement, we will pursue payment vigorously.

Not to discount the original session work that is being filed with our local offices, we hope to see both revenue streams continue to flow to all of our musicians.

Electronic Media Services Division
Electronic Media Services, International Musician

Getting to Know the EMSD Staff

As we so frequently get caught up in the day-to-day grind of business and the pursuit of agreements and payments, it can be difficult to make time to get to know each other. The following EMSD “who’s who” puts faces to the names and summarizes job responsibilities for our Electronic Media Services Division (EMSD) staff. 

Electronic Media Services Division

Pat Varriale: Director of the EMSD, Pat has been with the AFM for 44 years. He is “all things electronic media,” specializing in all facets of the Sound Recording Labor Agreement, National Public Television, National Public Radio, Limited Pressing, Demonstration Recording, and Background Music agreements.

Maria Warner-Dowrich: Contract administrator for EMSD New York, Maria administers commercial announcements including commercial new use, sound recording low budget, theme park, and limited pressings. She’s worked for the Federation for almost 10 years, eight of them with EMSD.

EMSD Staff

Kim Wysocki: Administrative assistant to Pat, Kim assists in processing and entry of Commercial Announcements Agreements and assumption agreements and provides assistance in signatory renewals. She also researches the CDs received from record companies and performs initial research on commercial new use projects.

Alyson Sheehan: In her first year with the Federation, Alyson works in billing and collection of sound recordings and theatrical motion picture scores in commercial announcements. In addition, she assists Pat in special projects and the editing of various agreements.

grant gerhart

Grant Gerhart: Grant assists EMSD New York on the research, billing, and collection of sound recordings and theatrical motion picture scores in commercial announcements, as well as other administrative duties.

Aksinia Dintcheva: Aksinia works tirelessly in the New Use department to create B-7 contracts and billings. A University of Georgia graduate, she has been working in the EMSD for 18 years. 

Andie Childs: Andie manages historical soundtracks, projects involving film-to-film clip use, as well as spreadsheets and dispersals for compilation projects and programs. 

Andre Shavers: In charge of collections for the New Use department, Andre pursues payment for billings generated by Peter Marroquin and company. He also oversees notices for work dues payments.

Bryan Vasquez: A researcher in the Sound Recording to Theatrical and Television Film New Use Department, Bryan identifies the use of AFM sound recordings in film media and prepares billing packets used for invoicing. He has worked for the AFM for seven years.

Chris DeLeon: Chris assists the New Use department by generating B-7 forms, as well as handling local tech issues in the West Coast Office.   

Mary Beth Blakey: Mary Beth is contract administrator covering television videotape, basic cable television, Internet and new media, and video games. She has been working in the EMSD for eight years. 

Matt Allen: As contract administrator, Matt handles motion pictures and television films, as well as low budget, student, festival, and industrial films. He initially administered the SRLA for Local 47. After moving to EMSD in 2001, he managed commercial new use before moving to film agreements.

michael stogner

Michael Stogner: New to the Sound Recording to Theatrical and Television Film New Use Department, Michael confirms the contact information for production companies and generates the billing letters to collect new use payments. He is also department archivist.

Ray Kalantarian: New to the Sound Recording to Theatrical and Television Film New-Use Department, Ray follows up with production companies via phone and/or email after sound recording new use invoices are submitted for payment.

sandra leon

Sandra Leon: The newest researcher in the Sound Recording to Theatrical and Television Film New Use Department, Sandra monitors and analyzes film media to identify the new use of AFM sound recordings and prepares the billing packets for invoicing.

Peter Marroquin: Manager of the Sound Recording to Theatrical and Television Film New Use Department, Peter also handles the management and storage of data for the office. He has been with the AFM for 25 years.

b-4 reports
Electronic Media Services, International Musician

CDs and B-4 Report Forms Ensure Your Projects Are Covered

by Kim Wysocki, Administrative Assistant AFM Electronic Media Services Division

The importance of our CD Jacket Program has continued to grow over the years. Securing the release of all sound recording product (including box sets, anniversary packages, deluxe editions), which usually contain live and previously unreleased material, keeps this department busy. Coordinating the proper filing of B-4 forms for these recordings, as well as all recordings done under the Sound Recording Labor Agreement (SRLA) is as vital as ever.

This office continues to pursue major record companies, including numerous covered labels and independent labels signed to the SRLA, in obtaining CDs, label copies, and any other information (including from digital releases), which are then researched by our department. When this process is complete, we share the information we gather with the AFM locals under whose jurisdiction the recordings took place.

We work together to ensure that B-4 reports were filed (including hours worked, doubles, overdubs), as well as make sure a current signatory is in place. We continue to coordinate our efforts with SAG-AFTRA, the pension fund, and the Sound Recording Special Payments Fund (SPF) to ensure that musicians are properly credited and receive proper wages and pension for their work. This also ensures they will receive payments from the SPF for the next five years. In addition, the proper filing of B-4 report forms helps us to facilitate new use payments, if the recordings are utilized in motion pictures, television films, and/or commercial announcements.

Advertising agencies representing numerous advertisers contact EMSD on a daily basis. They inquire as to whether or not a track was recorded under an AFM agreement and if the appropriate session reports were filed. Once our office locates these reports, a new use billing packet is prepared and submitted to the agency.

The volume of sound recordings used in commercial announcements continues to grow. Musicians are reaping the benefits of these new use payments. We rely on you, the musicians, to be proactive in making sure that your original work is done under AFM conditions and that session reports are filed. The filing of these forms is essential and benefits every musician. Musicians who perform on recordings should see to it that they are properly listed for their work on AFM B-4 report forms. This facilitates smoother new use billing procedures. If you have any doubts as to whether or not a given project is covered under the SRLA and if B-4 reports will be prepared, please contact your local or the AFM.

EMSD has a scanning procedure in place to ensure that all report forms received by this office for any and all work performed under AFM agreements are stored in our system, thereby making them readily accessible. We also have an electronic CD jacket file (provided by the pension fund), which enables us to access information as needed.

All in all, the more information we have on file, the better equipped we are to serve and assist you. Locals should continue to send the AFM copies of any and all B report forms and music preparation invoices. And, if you hear from any contractor or leader that they possess a history of B forms that they would like to discard, please tell them not to. Rather, they should send them to the AFM. We will make good use of them.

streaming agreement
Electronic Media Services, International Musician

Finding the Correct AFM Streaming Agreement

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

Assigning the correct EMSD agreement to streamed content can be a precarious enterprise. Business models and methods of consumption for streamed musical performances are subject to continuous change. The Federation’s streaming agreements are continuously evolving to respond to the industry. Outlined here are our four main streaming agreements and a brief overview of their terms and conditions. 

Live Streaming Agreement

The Live Streaming Agreement is to be used only for content streamed on a true live basis, simultaneous to the recorded event, with no content remaining available on a website or other streaming platform after the fact. The scales tied to this agreement are $100 per hour, per side musician, with a one-hour minimum. The required pension contribution is 14.17%, along with a $24 per day health and welfare payment. 

On-Demand Streaming Agreement

Under the On-Demand Streaming Agreement, an employer may stream content that remains available on-demand after the initial performance. The wages start at $197.20 per hour, per side musician, with a one-hour minimum. The required benefits are a pension contribution of 14.17% of wages, and a $24 per day health and welfare payment. The initial payments cover a six-month term of use on streaming platforms, with 6.6% aggregate payment of gross receipts required every six months thereafter.

Edited Concert Streaming Agreement

The Edited Concert Streaming Agreement covers content filmed live and cut into individual songs for subscription video on demand (SVOD), like Apple Music, and/or ad-supported video on demand (AVOD), like VEVO. The scales are $421.56 per 15 minutes of audio, in addition to a $113.16 image fee per filmed song, per side musician. For a single song, not to exceed seven-and-a-half minutes, the audio rate is $278.24, in addition to a $113.16 image fee. The health and welfare contribution is $27 per day and the pension contribution is 14.17%. These wages cover an initial six-month cycle, with an additional 7% of gross receipts due as an aggregate payment every six months thereafter, for any subsequent streaming. This agreement may not be utilized for theatrical productions; symphonic, opera or ballet performances; or performances outside the US.

Promotional Streaming Agreement

Under the Promotional Streaming Agreement, the signatory can film up to 30 minutes and stream up to three minutes of a performance on social media streaming platforms, for the sole purpose of promoting live union engagements by the same signatory. The payment required is an additional 10% of the performance wages required by the Local Single Engagement Contract covering the live event, in addition to a 12% pension contribution. This agreement is not available to symphony, opera, ballet, or chamber orchestras with collective bargaining agreements or to producers of theatrical shows. 

This article is meant to be an overview, and not an exhaustive or definitive way to assign a streaming agreement to an individual performance.

For streamed orchestral or symphonic content, contact Debbie Newmark at
dnewmark@afm.org.

For streamed scripted or dramatic content, contact Matt Allen at mallen@afm.org to ensure a project does not fall under Television Film Made for New Media.

For streamed talk, variety, or live competition content, please determine if it is covered by Television Videotape Made for New Media by contacting me at (mblakey@afm.org).

Contact me also if you have questions about any of the above agreements or information. 

Electronic Media Services, International Musician

Announcing the New Term of the Local Limited Pressing Agreement

by Maria Warner-Dowrich, Contract Administrator AFM Electronic Media Services Division

Local officers have been notified of a pension contribution increase, as well as the effective dates of the current Limited Pressing Agreement (LPA). Its term—February 1, 2017 through January 31, 2020—runs concurrently with the Sound Recording Labor Agreement (SRLA). The pension fund contribution rate of 12.81% of original wages became effective July 3, 2017. 

Note: edited versions of the LPA will not be accepted. This agreement is for non-symphonic recordings only.

Copies of the LPA kit, along with a detailed letter outlining each document and its usage were emailed to all local officers.

The Electronic Media Services Division (EMSD), under the direction of Pat Varriale, and consistent with AFM International Executive Board mandate, correlated the necessary documents and created the LPA kit, which comprises the following documents:

Limited Pressing Agreement (LPA)

Guidelines for establishing an LPA

Addendum A to be filled in by the local utilizing the agreement. When properly completed, it may be used as a master. It must always be utilized in combination with an LPA in signing a company to the agreement.

Addendum B sets forth the provisions for recordings not eligible for Tony Awards.

Prior to the engagement, the original LPA must be signed by an authorized representative of the company and a local officer.

If you haven’t already done so, please forward an updated copy of your local’s current effective LPA to the AFM office. The B-9 report is the proper form to be utilized and filed with the Federation. It can be found in the Members section of the AFM.org website in the Document Library.

If you have questions, please do not hesitate to contact the EMSD office at (212) 869-1330 X234 or X233 or email: pvarriale@afm.org. or mwarner-dowrich@afm.org.

For Canadian members, there is an LPA with some variations. Please contact AFM Canada Electronic Media Supervisor Daniel Calabrese at (416) 391-5161 X224 for details.

For Symphonic Limited Pressings, please contact AFM Director of Symphonic Electronic Media Deborah Newmark at email: dnewmark@afm.org or (212) 869-1330 x225.

live performance contract
Electronic Media Services, International Musician

Live Performance Contracts: How They Relate to Electronic Media

Electronic Media Services Division

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

It’s been said before, but is worth repeating: When there is a live performance taking place it is extremely important for the musicians engaged to be protected with an AFM-approved live performance contract. This applies to almost any engagement, whether it is a major venue or a small theater or club. (Musicians working under AFM collective bargaining agreements or under AFM-approved touring agreements already have this protection.)

Filing a contract assists the Electronic Media Services Division (EMSD) in the event the performance is captured. We view recordings or transmissions of a performance as a separate service from the live aspect. The musicians should be properly covered with an AFM agreement in place and receive additional compensation—over and above the rates under the local’s single engagement price list—for electronic media use of their live work.

The following is an excerpt from the AFM Bylaws, Article 10, Section 7.

All contracts or agreements covering live performances by AFM members must contain the following provision: “No performance or rehearsal shall be recorded, reproduced, or transmitted from the place of performance, in any manner or by any means whatsoever, in the absence of a specific written agreement with or approved in writing by the AFM relating to and permitting such recording, reproduction, or transmission. This prohibition shall not be subject to any procedure of arbitration and the AFM may enforce this prohibition in any court of competent jurisdiction.”

Whenever musicians are engaged to perform at a venue they should contact the AFM local in whose jurisdiction the work will take place to ascertain if there will be a contract to cover their services. If there isn’t one, local officers can make arrangements to secure one. There are live contracts that have a pension contribution component and those that do not. The local in whose jurisdiction the work will take place will be able to clarify which contract applies to your situation. There is no reason for not having a contract in place for every gig.

The following example helps to illustrate the difficulties we encounter when there is no live contract in place. There was a selection for use on television that was taken from a performance from several years ago that featured a major artist. As we investigated, we discovered that no live contract was filed. The local with jurisdiction had no record of who performed on the live gig and no record of the musicians being compensated for the capture. This put the AFM in an awkward and weak position when we attempted to establish an appropriate payment for use of the selection.

Locals should be proactive in checking venues within their jurisdictions to ensure that the contractors/leaders have the proper contracts in place, consistent with AFM Bylaws. Musicians called for an engagement should not hesitate to contact the local to make sure everything is in order. In this day and age, almost everything is captured, whether it’s an album release, streaming event, television production, or just for archival purposes. Even if there is no immediate usage as outlined in the preceding paragraph, your services should be protected so that you receive the appropriate electronic media compensation, including wages, residuals, royalties, and benefits.

At the officer training meetings I participate in at our various conferences, live performance contract filing has become an increasingly important subject in my “Demystifying the EMSD” PowerPoint presentations. It can have a major impact on whether this office is able to secure proper additional payments for performances that have an electronic media component.

commercial announcements agreement
Electronic Media Services, International Musician

Additional Extension to the Commercial Announcements Agreement

by Maria Warner-Dowrich, Contract Administrator AFM Electronic Media Services Division

Effective June 1, an agreement for an additional extension to the Commercial Announcements Agreement was reached between the AFM and the ANA-4A’s Joint Policy Committee on Broadcast Talent Union Relations (JPC). This 18-month extension is in addition to the June 5, 2014 through June 4, 2017 agreement, previously extended to June 4, 2018. The agreement is now extended through December 4, 2019.

Under the terms of this new extension, base wages have been increased by  2% for services provided on or after the effective date. The pension fund contribution of 16.5%, and the health and welfare contribution of 6% on scale wages, plus $26 on session only services, remain the same as on the agreement that expired June 4, 2018. Following is a concise outline of the new basic session wages:

National Commercials

Session Fees (one-hour minimum) are as follows:

Side musician with no doubles—$132.35 (up to three, one-minute spots)

Leader, arranger, contractor, orchestrator—$264.70

Music preparation rates increased by 2%

Copyists receive either the side musician’s rate or page rates, whichever is higher.

Arrangers and orchestrators receive
the leader’s rate or page rates, whichever is higher

Sideline musician, eight-hour minimum—$223.69

Sideline musician performing alone, eight-hour work day—$260.10

Leader and orchestra manager—$447.38

Pension fund contribution—16.5% of scale wages

Health and welfare—$26, plus 6% of scale wages

For session only—an additional $26 for each of the first two lines, per performer, per report

Doubling: first double—30% extra of base scale, each additional double—15% of base scale

Reuse/Initial Use Fees

The initial use fees below cover the first 13-week cycle for all national television and radio spots claimed at original session.

Side musician, sideline musician, copyist—$37.50

Leader, contractor, arranger, orchestrator—$75

Reuse Fees

$99.26 per side musician, sideline musician, copyist for each subsequent 13-week cycle, per spot

Leader, contractor, arranger, orchestrator—$198.52

Ballots for the additional extension to the agreement were mailed out along with careful voting instructions for the election process, which was conducted under the strict guidance of the American Arbitration Association. The count was observed by AFM EMSD Administrative Assistant Alyson Sheehan and me.

Upon ratification, the 2% increase became effective June 5.

We have updated the current wage charts, which include foreign use, Internet, nonbroadcast, and all media payments to reflect the 2% increase to the base wages.

For a copy of all Commercial Announcements Agreement documents, log onto the AFM website (www.afm.org) and go to the Document Library, select EMSD, then Electronic Media Guidelines & Summaries, then select the desired document. Alternatively, contact me via email at
mwarner-dowrich@afm.org or call (917) 229-0233.

esmd 101
Electronic Media Services, International Musician

EMSD 101: How to Select the Correct Agreement For Your Project

The following questions will help determine which rates and agreement should be applied to your recording. Always contact the AFM to confirm which contract you should be using. Note, if an electronic media project involves a symphony, opera, ballet, or chamber orchestra with a collective bargaining agreement, you need to contact the Symphonic Services Division to determine the appropriate agreement. 

1) If it is a live performance being recorded or taped, is there a live performance contract on file?

2) What is the nature of the project (music recorded for a CD release/download, commercial announcement, television show, motion picture)?

3) If it is for a CD release/download, what is the approximate number of pressings/downloads? What is the approximate budget?

4) If it is for a commercial announcement, is it for a national, regional, or local campaign? Which medium (television, radio, Internet, etc.) will it be used on? Will the musicians be on camera?

5) If it is for a television show, which type of show is it for (variety special, talk, sports event or theme, documentary, sitcom, awards)? Where will the television show air (network, basic cable, pay cable, PBS, local television)?

6)   If it is for a variety type show (talk show, awards show), what is the length of the show and its rehearsals?

7) If it is for a television movie, scripted episodic show, television documentary, or sitcom, will musicians be on camera?

8) If it is a live performance pick-up of a staged concert for the Internet, will it be a one-time live stream or an on-demand stream? Will the stream access be ad supported or subscription based?

9) If it is a project made for new media, what type of show is it, and over which new media platforms will it be available (Netflix, Amazon, Hulu, Apple)? Will the viewing be ad supported or subscription based?

10) What is the name of the production entity and party responsible for control of the product?