Tag Archives: payment

Musicians “Broke, Out West”

At the time of this writing, I have just stepped off a plane from Edmonton, Alberta, having spent the last few days organizing a demonstration/rally, juggling interviews with the press and radio reporters, and meeting with a politician of the ruling provincial New Democratic Party (NDP). At the core of it all was the ongoing effort to get an agreement with the Western Canadian Music Alliance (WCMA), the entity that operates the BreakOut West music festival (BOW).

As I have reported before, the WCMA have an operating budget of roughly $600,000, with a substantial amount of that derived from various government grants and funding, along with private sponsorship. While they have no choice but to pay the “headline” acts fairly, as they have the effect of validating the festival, the lion’s share of the musicians are not paid. Previous agreements with the festival did provide for payment, but BOW has changed their “business model” in favour of belittling musicians even further.

BreakOut West music festival

More than 50 musicians and supporters picketed the BreakOut West (BOW) festival’s host hotel. BOW has refused to negotiate a contract to pay musicians.

This type of social injustice is not just a problem for musicians, but for all Canadian workers, and that premise was why we approached the Alberta Federation of Labour (AFL) for their assistance. They were eager to help, as our message was a perfect fit for “$15 And Fairness,” a nationwide campaign of the Canadian Labour Congress (CLC). The AFL folks were instrumental in producing themed signs and handouts, issuing an “Action Alert” to their affiliates and media to announce the day and time of the rally, and then bringing their staff to participate.

Special thanks must be given to the Edmonton Symphony Orchestra, who sacrificed their break time to help bolster our numbers to more than 50—plenty of folks to fill the street in front of BOW’s host hotel. In addition, in a stunning show of solidarity, we were joined by international jazz great P. J. Perry and blues artist Graham Guest of Local 390 (Edmonton, AB). With chants of “Pay the band, not the man,” our group was successful in sending a strong message.

BreakOut West music festival

(L to R) At the BOW Rally are AFM Vice President from Canada Alan Willaert, Supervisor Electronic Media Services Canada Daniel Calabrese, Director of Organizing & Education Michael Manley, and Negotiator Todd Jelen.

I would also like to thank the AFM Director of Organizing Michael Manley, along with Negotiator Todd Jelen, and Supervisor Electronic Media Services Canada Dan Calabrese, who rounded out the AFM’s onsite personnel. In addition, a special thank you to Local 390 President E. Eddy Bayens and Secretary Edith Stacey for their assistance and outreach to members, and to Local 547 Secretary-Treasurer Doug Kuss, who took the day to travel and support our event.

Following the rally, Bayens and I met with a member of parliament to impress upon him the government’s error in not being more careful about what they were providing grants for. Since the NDP are currently in power in Alberta, one would have to believe that more serious consideration will be forthcoming, as it was pointed out that musicians were paid nothing, not even minimum wage, as required by law.

The demonstration and show of solidarity is only the beginning of this story; pressure must now be brought to bear upon all sponsors of the festival, to ensure that next year’s event is either under a CFM agreement or doesn’t happen. Members, please take note that the WCMA continues to be on the International Unfair List. No contracts should be entered into with them or their affiliates for any performances, until further notice.

paper trail

The Power of the (Digital) Paper Trail

by Dave Pomeroy AFM International Executive Board Member and President of Local 257 (Nashville, TN)

I think many AFM members have had their own personal “tipping point” where suddenly the value of union membership really hit home. I had been an AFM member for about a year when I played a concert with Don Williams at Giants Stadium in the Meadowlands, not long after joining his band in 1980. It was my first ever stadium gig, which was pretty amazing in itself, and Don—as always—paid us well for the show. Unbeknownst to me, the concert was being filmed. A live clip of the song “Good Ole Boys Like Me,” which was number one on the country charts at the time, was shown on a TV show called America’s Top 10 twice over two months. I got paid more than I made for playing the concert not once, but twice. From that point on, I got it. This was my first experience with the power of the paper trail, which is a direct result of the protections of working under the AFM contract.

paper trail

Dave Pomeroy hands Local 257 (Nashville, TN) member Solie Fott a check for new use of a 1962 recording Fott performed on.

People ask me all the time, “What exactly does the musician’s union do?” That’s a question with a lot of answers! I reply that we represent the interests of professional musicians all over the US and Canada, followed by, “How much time do you have?”

If it is more than a casual inquiry, I try to ask a few questions to find out what their areas of interest and expertise are and what ambitions and goals they might have. I can then focus on the most applicable aspects of AFM membership to their situation. 

These days it’s not uncommon for young musicians to have multiple skills from songwriting, engineering, and arranging to playing a plethora of instruments very well.  Many, if not most, musicians these days are making money from numerous revenue sources, some of which are smaller than they used to be. In a constantly evolving music industry, it’s essential not to leave any potential income from your musical performances on the table. That is where the power of the paper trail works in your favor in a number of ways.

Virtually all AFM media contracts have a pension component. Pension is not something you think about much when you are young, but as someone who just turned 60, I am grateful to know that I’ll have “mailbox money” to look forward to after many years of being a working bass player. In addition, new use and re-use provisions ensure you will get paid every time your work is used in a new medium such as TV, film, and commercials.

For example, last month, a violinist named Solie Fott, a delightful man and a 70-year AFM member, came into the office to pick up a re-use check for the Patsy Cline record “Back In Baby’s Arms,” which was recorded September 10, 1962, under an AFM contract.  The song was used in a Mazda commercial and he and 11 other musicians (or their beneficiaries) have received more than 10 times what the scale was when the record was made more than 53 years ago.

Without the paper trail, we would not have been able to get this payment for him. As our digital database of session information expands, it facilitates our ability to track the new uses of existing and future recordings. When you work nonunion, what you make that day is all you ever make, and you have given away your intellectual property forever. Make sure you work under an AFM contract to maximize your potential revenue streams in every way possible.

Revenue Sharing in Symphonic Media Agreements—When Are You Owed Money?

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

Debbie-NewmarkWhat exactly is revenue sharing and how does it work under symphonic media agreements? Those are questions we frequently hear in the Symphonic Services Division. Join me now on an exploration of everything you ever wanted to know about the subject of revenue sharing.

The concept of revenue sharing has existed for decades in the symphony, opera, and ballet world, but the methods used have morphed over the years from agreement to agreement. Now there are revenue sharing provisions in the Integrated Media Agreement (IMA), as well as the older, but still used, Live Recording Agreement, AV Agreement, and Internet Agreement.

The general idea is simple. The employer makes an upfront payment, if required, to its musicians in accordance with the applicable agreement. The product then goes into the distribution pipeline. Sales dollars drift in. The employer recoups its direct costs from those initial sales dollars, after which they must start sharing revenue with the musicians, as per the terms of the national agreement. Most often this is a 60/40 split of net revenue with 60% going to the musicians.

Under the terms of the IMA, the employer distributes the recorded product in a variety of mediums or enters into a license with a third party to distribute—but not own—the media produced. The rare exception to the ownership requirement is television, which is rarely owned solely by the employer.

Our agreements are designed as a collaborative model requiring the orchestra committees, or in some orchestras a media committee, to be on the front lines participating in discussions with the employer regarding the artistic and financial aspects of each project. This includes a thorough review of the costs incurred by the institution in producing the media product. This is a vitally important step. The only way musicians know when they are due revenue is if they have determined these direct costs in advance. It is only after the direct costs have been recouped that the musicians begin receiving a revenue share.

Orchestra committees should become familiar with how this works and what their responsibilities are in helping to pilot these projects. Consider what happens if this is not done in advance. The product is released, sales dollars are being generated to the institution, and no one knows when or if they are due a revenue share because those direct costs to the institution were not agreed-upon in advance. This has happened often enough to be of concern.

Projects brought to the committee at the last minute are another concern. This is disrespectful to the musicians and the process. These collaborations take time. Being asked to rush through the process in order to say yes to a project at the last minute strips away the very underpinnings of agreements. In quiet times, it is advisable to remind your employer of how important it is to come to the committee well in advance of the date a project is scheduled to begin. That way, the budgets can be reviewed, questions can be asked, adjustments can be made, and if required by the agreement, votes of the orchestra can be taken to approve the project.

When reviewing budgets, one area of concern is the proposed payments to producers and engineers, which are often quite high, sometimes exceeding the total cost of paying the musicians. Needless to say, that makes it much harder to recoup the direct costs. The total cost of the project becomes too high, thereby making the possibility of ever seeing revenue sharing impossible.

If the committee makes their case to the employer well in advance, as part of the review process, it is possible to get those costs lowered. The choice of producer and engineer should never be made in a vacuum. The committee may ultimately agree that, in order to release the best product, the costlier producer and/or engineer is necessary, but that is a joint decision.

Another concern is ensuring that the committee reviews proposed third-party licensing deals well in advance. There have been situations where the employer had already entered into such an agreement and gave it to the committee as a fait accompli. That is not how the agreements are designed. The committee has the right to review licensing deals well in advance. If this step is skipped, you may find yourself in a situation with a detrimental third-party deal and very little or no revenue will trickle down to the institution.

In addition, there may be language in these third-party deals that allow the distributor to sublicense the product to other entities. That’s fine; what isn’t fine is if those sub-licensees enter into agreements that bypass the requirement to pay royalties for noninteractive streaming—something the musicians are entitled to under the Digital Millennium Copyright Act. In the symphony, opera, and ballet world, that translates into sharing 45% of the noninteractive streaming royalties as the featured artist.

We have a few ruthless sub-licensees that have entered into such agreements. The result is that the noninteractive streaming royalties do not get paid into SoundExchange for later distribution through the AFM/SAG-AFTRA Fund. Please call us if you suspect this might be an issue. Often musicians who are more aware of the potential pitfalls end up educating their employers to watch out for these deals. The employer is the copyright holder, and as a result, is entitled to a 50% share of the noninteractive streaming royalties. This can affect the institution’s royalty share simply because they may not fully understand the licensing agreements they are asked to sign in order to distribute the product.

Let’s use everything at our disposal to ensure the best possible outcome from the creation and distribution of media product in our orchestras. If you have questions please do not hesitate to contact me via email (dnewmark@afm.org) or phone (917-229-0225).

Top 10 Reasons to Record AFM

In summary, and with apologies to David Letterman, the EMSD staff have compiled the Top 10 most important reasons why you should record under AFM agreements:

1Standard wages—You are guaranteed to receive at least the minimum standards for your services.

 Doubling and overdubs—In addition to the wage payments, the employer is required to make payments for your doubling and overdub services.

 Foreign use—If you perform services in the production of a show produced under most of the AFM’s television agreements, aside from the payment due to you for your original services, if the program is broadcast overseas, you will receive additional payments.

DVD payments—If the program is released into the DVD format, you will be entitled to additional payments that will continue to accrue based on the gross receipts.

Pension fund contribution—The employer is required to make a pension fund contribution on your behalf, which puts your session work into the system.

Health and welfare fund contribution—The employer is required to make a health and welfare contribution, either to the health plan of your local (if it has one), or directly to you.

Special payments fund—If you perform services on a session(s) for a sound recording, you are guaranteed to receive payments from the Sound Recording Special Payments Fund for the next five years.

Secondary markets fund—Under the Basic Theatrical Motion Picture or Television Film Labor Agreements you will qualify for distributions from the Film Musicians Secondary Markets Fund, should the film be released to outlets such as pay cable TV or the home video market.

 Reuse—Under the Commercial Announcements Agreement you will receive periodic reuse payments for any new cycles the commercial(s) enter into.

And the number one reason to record AFM:

 New use—If you perform services under an AFM agreement and your product is licensed for use in another medium, such as a theatrical motion picture, television film, or commercial announcement, you will be entitled to additional payments as if you had performed the work under that agreement.

Judge Explains Why Pandora Should Pay 2.5% of Revenue to BMI

An article appearing in The Hollywood Reporter explains why US District Judge Louis Stanton decided that Pandora should pay 2.5% of its revenue to BMI. The decision came more than two years after publishers attempted to partially withdraw digital rights from BMI in order to get a raise from streaming outlets like Pandora. BMI argued the court for a 2.5% rate based on interim deals that were struck between the publishers and Pandora. In making the decision, Stanton considered Pandora’s $600 million 2014 revenue, and its stance that it hasn’t been profitable due to lack of success on the advertising. He also looked at what music services are paying—Apple 4.6% of revenue, Spotify (2.5%-6.25%) of label costs, and Rhapsody, just under 2.5%—though he admits “Pandora evades neat categorization.” BMI I was also given a “win” in that the license term will be four years, instead of five, to allow re-evaluation of the licensing relationship given the “rapidly changing nature of the online music industry.”

New Business Model = Same Demons

Citing the unfair split of revenues and lack of artistic control, today’s musicians shun the ubiquitous control of yore by the “majors,” and desperately attempt to validate their music by declaring themselves an “indie.” High quality home recordings, self-produced and marketed, are made possible by the technological advances in recent years, along with the promise of untold fortune by distribution through the World Wide Web. “Going viral” no longer means a trip to a physician, but a trip to the bank. Or does it?

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