Tag Archives: Patrick Varriale

live performance contract

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.

EMSD Special Issue Highlights

Electronic Media Services Division

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

Welcome to this year’s issue of the International Musician focused on electronic media and the Electronic Media Services Division (EMSD)—the division of the AFM charged with serving and protecting the interests of nonsymphonic recording musicians. (The AFM Symphonic Services Division represents opera, ballet, and chamber orchestra electronic media projects.)

This issue is packed with articles and information that I am confident all readers will find interesting. Below, I write about the increasing importance of filing live performance contracts and how vital they are, especially when the performances are captured. On the opposite page is a list of questions that you can ask employers about electronic media projects in order to determine which AFM agreement(s) apply to a particular situation. The accompanying table will further help you to select the proper agreement for your work.

On page 12, Contract Administrator Mary Beth Blakey describes current streaming agreements that cover just about all types of streaming projects. Alyson Sheehan contributes an article on her experiences billing and collecting for the growing use of prerecorded material in commercial announcements.

Contract Administrator Maria Warner-Dowrich expands on the recently ratified 18-month extension of the Commercial Announcements Agreement and the wage increase applicable during that time period on page 14. She also gives an update on the local nonsymphonic Limited Pressing Agreement.

On page 15, Administrative Assistant Kim Wysocki reviews the CD jacket initiative process and how important it is to our billing and collection of new use payments.

In the Official Reports section on page 4, there is an informative article from Recording Musicians Association President Marc Sazer.  My sincere thanks to Marc for his contribution and his ongoing assistance to the EMSD.

I also want to thank the EMSD staff on both coasts for their dedication to the cause. We have an updated list of the staff and their functions on page 16. I am very proud of their accomplishments and the expertise they bring to recording musicians on a daily basis.

Finally, I would also like to thank AFM In-House Counsel Jennifer Garner and Russ Naymark for their continued invaluable assistance in negotiations of our major agreements, resolving long outstanding claims, and lending their expertise to the many special agreements that this office is involved with to cover the recording work of our great musicians.

Enjoy this issue and let us know if you have any questions. We are just a phone call or email away.

Protect the Product

Protect the Product: Don’t Skip the “Red Tape” of Union Requirements

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

Protect the ProductIn the old days, we would refer to it as protecting the tape, but with new technology, protect the product seems more appropriate. No matter what the terminology, it is as important today as it ever was.

It seems as if we have been writing articles on this subject matter since the dawn of time, but it is always worth repeating. When you are called to a recording session the first two questions you should ask are: 1) What type of recording project am I being called for? and  2) Who is the responsible party? Then, check to be sure the company is signatory to the proper AFM agreement, which you can do by contacting your local or the AFM.

The most common type of recording is a CD release. In that instance, you want to make sure:

1) That the company engaging you is currently signed to the AFM Sound Recording Labor Agreement (SRLA), or is a label under a major signatory, so that the recording activity of the record company is covered. (If the recording project is on a smaller scale, a limited pressing agreement may apply).

2) That an AFM B-4 report form is completed listing your services (guitar, bass, keyboards, etc.). If you performed overdub services, as opposed to doubles, you should be listed separately on the B-4 for each instrument. This will ensure that you receive proper payments from the Sound Recording Special Payments Fund for each of the next five years.

If your “product” is licensed for use in a new medium such as a theatrical motion picture, television film, or commercial announcements, you will receive the appropriate new use payments required by the SRLA. (See “Top 10 Reasons to Record AFM”). New use payments could end up being worth much more than the original scale payments you received.

Many times we hear that the musicians were advised to forgo the filing of a B form in an effort to get paid more quickly, rather than going through the “red tape” of union requirements. Believe me, the red tape is worth it to ensure that your services are properly covered.

We have heard many hard-luck stories from musicians who sometimes received more than scale “up front,” but now see their product being used repeatedly and are unable to pursue the extra payment that they would have been entitled to through the Federation’s process. Musicians who were victimized in this way tell us that they will never make that mistake again.

Here are a couple precautions pertaining to live recordings:

  • If you will be participating at a concert that will be recorded, you should contact the local where the live event will be held to see if a standard contract is in place to cover the live work. This is highly important because the live performance contract contains language that requires the “purchaser” to see to it that a written agreement is in place for the recorded performance.
  • Check the annual statement you receive from the pension fund to confirm that the work you performed is properly logged into the system. Check for any discrepancies and report them to the local as soon as possible. This will give the local and the AFM an opportunity to review inaccuracies and correct them. If you haven’t received this important statement because you have moved, please contact a representative of the pension fund and provide them with your current address.

Your product and artistry contributed to the recording. You should see to it that your valued services receive the optimum protection.