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Highlights of the New Integrated Media Agreement

by Deborah Newmark, AFM Symphonic Services Division Symphonic Electronic Media Director

On April 15, after 18 months of extremely difficult bargaining, the AFM and the Symphony, Opera and Ballet Employers’ Electronic Media Association (EMA) reached agreement on a successor Integrated Media Agreement (IMA). The term of the new agreement is June 14, 2019 through June 30, 2022.

The AFM national media committee for these negotiations, led by AFM International President Ray Hair, maintained a steadfast commitment to achieving a fair and balanced agreement. The committee included International Conference of Symphony and Opera Musicians (ICSOM) and Regional Orchestra Players Association (ROPA) media committees as well as a number of local officers, AFM staff, and esteemed counsel, Patricia Polach and Rochelle Skolnick. The EMA represents 94 US orchestras and it is the musicians in these orchestras that ratified the new agreement.

To be a signatory to the IMA, an orchestra must have a collective bargaining agreement with their local, a permanent roster, and an orchestra committee. The AFM soon will begin offering the new IMA to eligible symphony, opera, and ballet institutions that prefer to sign the agreement with the AFM on an individual employer basis.

Highlights of the New Agreement

The committee felt strongly that wages for audio streaming had to be increased, as this medium has become the primary vehicle for distribution of symphony, opera, and ballet product. Toward that goal, and in a thorough analysis of the state of other methods of distribution that have decreased in popularity, we conceived of and reached agreement on a Multi-Platform Rate (new Article X). This concept succeeds in achieving the much-needed increase in streaming rates while bundling other mediums of release into a single rate of 6% of weekly scale.

The employer must continue to maintain ownership and control of product but can enter into licensing agreements for distribution. Under this provision, the orchestra committee must participate in an artistic and financial consultative process with the employer, after having received detailed documentation including any licensing arrangements. The orchestra committee is also responsible for approving projects on a case-by-case basis.

There is a new provision called the Annual Media Commitment Payment that replaces the Audio Buffet. It requires the employer to commit to an annual media payment at one of three different payment levels for an additional 3%, 4%, or 5% of base annual salary with accompanying minimum payment requirements for each level. In exchange for making a commitment to an annual media payment, the employer receives specific discounts on IMA rates.

Payment floors that represent minimum requirements for all wages that are based on a percentage of local scale have increased 1% at ratification and then 2% each year of the three-year agreement. Per-minute television rates have increased 2%. Pension contributions increased to 13.2%, consistent with the August 1, 2018 Pension Rehabilitation Plan of the AFM-EPF.

One area in the prior agreement that generated the highest number of disputes and grievances was the promotional provisions, especially when the employer provided content to third parties. This was particularly problematic in the realm of broadcasts and streams of performances of the “Star-Spangled Banner” at sporting events that the EMA believed did not require media compensation. While we have always worked to find a balance between fair compensation for musicians while creating meaningful opportunities for the institution to promote itself, we were not going to agree to promotional provisions that would eliminate the need for the employer to engage in future paid-for media product.

The balance achieved provides payment for broadcasts and streams of live performances of the national anthem at “premium games.” It also ensures that any promotional activity provides recognition to the orchestra and its musicians. Promotional clips cannot be used as underscoring or backing tracks or as a jingle that would otherwise be covered under the AFM’s Commercial Announcements Agreement. Expanded third-party use cannot occur in the absence of orchestra committee approval. In addition, any third party that qualifies to use a promotional clip must sign an agreement with the employer ensuring payment in the event of a misuse. The employer has 30 days to cure an infringement for material they provide to a third party before becoming liable and must then enter into and fulfill all conditions required by the appropriate AFM Agreement.

Another new provision allows for capture by audience members at outdoor concerts and the ability for the audience to share material on social media in limited circumstances. There is also a provision to allow capture by audience members at up to two formal indoor concert programs and up to four informal indoor events per season. The employer must come to the orchestra committee in advance for approval.

Orchestra committee approval must also be sought when responding to requests from conductors, composers, soloists, and musicians of the orchestra for a private use recording. A private use tape agreement must be signed by the individual making the request in order to receive the recording. In addition, for personal study purposes only, the music director and the musicians of the orchestra can obtain access to a stream of materials via a password-protected portal.

In the realm of revenue participation, where we had encountered numerous problems in the past, the committee sought and achieved a much-needed change to the system. Instead of a 60% net revenue distribution after direct costs are recouped, there is now a new system that will share 55% of gross revenue after deducting solely musicians’ costs—nothing else. This should make it easier to see revenue distributions from the exploitation of our product.

In Conclusion

These were challenging negotiations where the union was represented by a strong and educated committee who went up against employers determined to erode hard-fought standards in the symphonic industry. Not only was there success in addressing the pressing need to increase payments for streaming, the new agreement also ensures that symphonic musicians continue to receive fair compensation for all of their media work while also expanding the platform for institutions to continue to promote themselves to ensure a healthy future for the symphony, opera, and ballet community.

Integrated Media Agreement

The Role of the Orchestra Committee Under the Integrated Media Agreement

Deborah newmarkby Deborah Newmark, AFM Director of Symphonic Electronic Media

You have just been elected to the orchestra committee. Congratulations! Perhaps this is your first time serving on the committee and you are not yet sure of your responsibilities. You probably suspect that there will be issues the committee regularly deals with related to the enforcement of the local contract, but what you may not know is that the orchestra committee has an essential role in the workings of the AFM Symphony Opera Ballet Integrated Media Agreement (IMA). 

While the IMA is a national media agreement administered by the AFM’s national office, the agreement does contain numerous provisions that require the orchestra committee to make certain decisions and/or seek approval from the full orchestra, when necessary. The purpose of this article is to help familiarize orchestra committees with those responsibilities so they will be in a better position to take a proactive approach in getting things done in accordance with the terms of the agreement. This review will help new members, as well as long-term committee representatives, who can all refer to this article as a guide. 

Why encourage a more proactive approach? One reason is the tendency to see a revolving door of management personnel in our orchestras. This leaves us with new staff lacking experience in the workings of these agreements. Even experienced managers leave the discussion of projects until the last minute, which totally contradicts the way this agreement is designed to work. In all cases, it should come as no surprise that much of the in-house educating falls to our committees who represent the interests of the musicians in our orchestras. This is an important responsibility when additional income may be derived from the use of this product.

Under older symphonic media agreements the committee had a smaller role. That role has expanded over the past two decades into one that now requires more consultation and decision-making. A new structure exists where a more collaborative working relationship between the employer and the orchestra committee is required to move projects forward.

So how does that collaborative model manifest itself under the IMA?

The IMA is an agreement containing a variety of upfront wages for the capture and release of live concert recordings in a number of different mediums. It also contains back-end revenue participation from the exploitation of that product. Under the current agreement, musicians are entitled to 60% of the revenue received by the employer after they recoup their direct costs. 

The first step is the artistic, financial consultative, and approval process. The employer must approach the orchestra committee at least four weeks in advance to discuss a potential project. If they come to the committee within the four-week window before the project is due to be recorded, then the committee must automatically take the project to the full orchestra to approve.

It is important to note that even when the IMA doesn’t require a full orchestra vote, the committee can determine that the input of the full orchestra is necessary. They have the right to determine if it is in their best interest to go to the full orchestra for input and/or a vote.

How does this process unfold?

The employer should prepare a budget for the project in advance of the first meeting. The budget should separate the costs paid by the employer and those paid by third parties. Only those paid by the employer may be recouped before sharing revenue. The employer should also include a proposed repertoire list for consideration, information about the economics of any proposed license, the terms of the distribution deal with any partners, and the financial arrangements with the conductor and soloists. If they start the process more than four weeks in advance, it gives the committee enough time to ask questions and receive necessary responses in order to move the project forward either via orchestra committee approval, or in cases where it is required or determined to be needed, full orchestra approval.

The media created under this agreement is typically licensed to a third party for distribution (our employers are not in the business of distributing product whether physical or digital). The financial deal with distribution partners determines how much revenue will ultimately come into the institution to be later shared with musicians. Is it a poorly structured deal that won’t generate revenue or is it a sound deal? Is the committee comfortable with a possible request to extend the proposed license at the end of its term? These are questions committees grapple with before a project is approved.

It is vital that committees not take this responsibility lightly. The agreement gives them oversight and approval rights. Not exercising those rights properly, will cause difficulties down the road. The committee helps to ensure compliance with the agreement. The AFM is always available to assist when questions arise. Committees are in touch with us on a regular basis for both training and assistance during the evaluation process, but we can’t stress enough the importance of utilizing the consultation and approval process provided for in this agreement. It will go a long way to protect the rights of musicians in AFM symphony, opera, or ballet orchestras.

We are still in bargaining for the successor to the 2015-2017 IMA. Any changes that affect the orchestra committee’s role in a future agreement will be reported after we finish these negotiations and ratify the new contract.

ICSOM orchestras

Promoting Your Orchestra Using the New Integrated Media Agreement

by Deborah Newmark, Director, Symphonic Electronic Media

Promoting Your Orchestra Using the New Integrated Media AgreementTo familiarize the 70-plus orchestras now working under the new Integrated Media Agreement (IMA), and for those that may work under the agreement in the future, it is helpful to examine some of the provisions that are designed to assist orchestras in promoting themselves and building audiences into the future. The IMA negotiations were a hard-fought battle against forces that believe that everything we do can be described as promotion, and should therefore be free. We succeeded in fending off this attack, but ultimately agreed to allow for some expansion of the promotional opportunities, while maintaining the upfront payments and revenue sharing that are key components of the majority of the agreement.

To be a signatory to the IMA, an orchestra must have a collective bargaining agreement with their local, a permanent roster, and an orchestra committee. The 70-plus eligible orchestras signed to the new IMA will be able to take advantage of these new, expanded provisions. There are 50-plus orchestras still working under the older IMA and they will continue to use the news and promotional provisions under the older agreement.

The promotional language in the new IMA (2015-2017) is divided into subsections: Use of Captured Material for Promotion; Promotion via Performance Streaming; Volunteer Promotional Recordings; and Gifts to Donors, Corporate Sponsors, and Subscribers.

Footage for these promotional pieces will be captured at live services (rehearsals or performances). The one exception to this form of capture is the volunteer promotional recording provision (discussed later in this article). There are time limits on the amount of capture and use for all promotional pieces.

From Capture to Finished Promo

The new provisions make it possible for orchestras to greatly expand their time and presence on social media. Typical uses would be the institution’s Facebook and YouTube pages, as well as other social media sites. It also covers use in cell phones or wireless transmission, streaming e-mails (perhaps to subscribers), podcasts, and use in kiosks or monitors in promotional locations. The material can also be used by institutional sponsors or partners for their websites, as long as the material isn’t being sold.

The agreement also provides an opportunity to stream a performance that was free to the public for 45 days in order to expand the institution’s community outreach. In addition, there is a new provision that (with orchestra approval) allows for one concert that was not free to the public to be streamed for the same 45-day period.

Volunteer Promotional Recordings

Lengthy discussions took place at the IMA negotiations over the issue of the employers’ and potentially the musicians’ interest in being able to participate in audio or audiovisual interviews and activities that, in addition to talking, include individual demonstrations on their instruments for promotion. An example of this type of promotion might be an employer’s interest in featuring a new player in the orchestra, or asking a player to demonstrate an excerpt of a piece from an upcoming concert.

Our negotiating committee felt that the only fair way to do this was to make it voluntary for the interested musicians, plus create rules that had to be followed to ensure consistent application of this new provision. Musicians can accept or decline the offer without affecting their status in the orchestra. These recorded interviews cannot be used in any kind of disciplinary procedure. The recording can be done at a time and place chosen by the volunteer musician. Recording time is limited to 45 minutes and the final product can be no longer than 15 minutes. It is available for two years from the date of posting. Musicians that participate have approval over the repertoire and have final say in whether or not the product gets used.

This new provision is designed to create some order in what was previously a chaotic approach to these types of projects. As it is a new provision, the AFM will be collecting information about these projects along the way to evaluate how well it is working.

Gifts to Donors, Corporate Sponsors, and Subscribers

In the past, the Federation has assisted individual orchestras that wanted to make a gift of a CD to their donors during major fundraising campaigns. Special agreements were created by the AFM and approved by the musicians of each institution. These agreements allowed for the creation of a CD to bring in needed dollars to the orchestra as part of a major fundraising drive. In an effort to codify an existing practice, the AFM agreed to include such provisions in the agreement.

There are now two donor paths that an orchestra must choose between to create one project per season. The first path allows for the creation of a CD, DVD, audio download, or AV download to be distributed to donors as a gift. There are minimum donation requirements and limits on the number of copies. This product can’t be sold or broadcast.

The second path an orchestra can choose is to create a donor portal on the orchestra’s website (or a third party website, if the orchestra doesn’t have the ability to host the portal on its own site). Once again, there are minimum levels that must be met by donors and limits on the amount of music that can be posted. Access to the portal must be password protected or otherwise restricted. The material will be available for on-demand streaming—no downloads. The orchestra committee has artistic and project approval for either path. There is also a new provision that allows the possibility of providing a CD or DVD gift to a major corporate sponsor or underwriter up to one time per year (with Federation approval).

The final promotional category covers the release of product for subscribers or multi-ticket buyers. This is an opportunity to provide them with a taste of what a donor gets as a possible enticement to move them up to the donor level. Up to two times per year, the employer can provide them with a free download (or another perk like a maximum two-week period of access to a donor portal) in connection with a targeted marketing program specifically approved by the Orchestra Committee. There are time limits for the product posted.

Time will tell if signatory institutions take advantage of these wide-ranging opportunities to promote themselves. The resulting reported activity will inform the discussion when the time comes to bargain the successor IMA.