Tag Archives: Symphonic Services Division

Face Time or Screen Time?

July 1, 2016 IM

by Barbara Owens, AFM International Representative Midwest Territory and Symphonic Services Division Negotiator

I come from the pre-computer/pre-smartphone era of writing letters and making telephone calls with a rotary dial phone (I even remember our family sharing a “party line”). In this electronic age, many of us feel challenged to maintain communication that has more substance than an impersonal conference call, quick text, or group email. Electronic communication certainly has advantages of flexibility and immediate accessibility, but the drawbacks, especially when it comes to group communication or decision making, can create misunderstandings and frustration.

Many experts agree that face-to-face meetings, even if conducted via Skype or another video chat program, are the optimal way to bring diverse groups into an environment where complex discussions can be undertaken and decisions can be made. Craig Jarrow, from Time Management Ninja, says, “You don’t have to be ‘in person’ but you have to ‘be there.’” In other words, how do you really know that you have the undivided attention of all the participants on a non-video conference call? If participants give into the temptation to multi-task, your call may be longer and less productive than you wish.

As musicians, we are so in-tune with the nonverbal cues of our orchestra colleagues that we might do ourselves a disservice when we bypass in-person or video chat meetings for the ease of a group conference call. We do better when we can see those we are communicating with; seeing the people you are talking with engages them and you more directly. (Also, it’s much harder to say no or disagree with someone when you have to look them in the eye!)

Written electronic communications can be even more problematic. We have all received those middle-of-the-night emails containing an emotional reaction to a negotiation proposal or situation of a colleague that can set in motion a never-ending email chain of reactions from people in the address loop. While you may think these types of emails provide a space for venting, at any time one email—or even one sentence—taken out of context has the potential to wreak havoc. Resist the temptation to “reply all” when you are in this situation. Picking up the phone for a one-on-one conversation, and then following it with a video chat for the group, if necessary, can alleviate unnecessary drama and confusion.

We are fortunate that musicians who have multiple employers in multiple locations can use video chats, texting, and email to keep current with news from their orchestras, their local, and the AFM. During negotiations, I have seen negotiating committees reach out electronically to absent committee members or colleagues for input on specific issues. This is a great benefit of technology that allows us all to participate and stay connected. But electronic communication is a tool, not a replacement for face-to-face communications. Electronic communication is easy, convenient, and efficient, but it does not have the emotional power of direct communication.

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

July 1, 2016 IM

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

What 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).

Why the AFM? Collective Action Across the Generations

July 1, 2016 IM

by Rochelle Skolnick, AFM Symphonic Services Division Counsel

I’ve been thinking a lot lately about the development of wages and conditions in American orchestras since the 1960s. Actually, “wages and conditions” doesn’t fully capture what’s been on my mind. What I’ve really been contemplating is the extraordinary development over the past 50-plus years of a symphonic work culture that allows a substantial number of orchestra musicians in this country to make a living and a livelihood in symphonic music. It was not always so.

One of my favorite nights of the year here in St. Louis is the last concert of the symphony’s subscription season, when retiring musicians are honored from the stage and at a party in the grand foyer of Powell Hall after the concert. There is food and drink and moving tributes from each retiring musician’s colleagues. A couple years ago, one of the honorees was contrabassoonist Brad Buckley, who served many years as a leader among his SLSO colleagues and famously as chair of ICSOM. The appreciation and respect demonstrated that night by Buckley’s colleagues and his management counterparts were a fitting tribute to someone who had given so much of himself over the years.

This year, I got to witness a similar celebration a week after the one in St. Louis, when I traveled back to my hometown orchestra and the Embassy Theater for my father’s final concert as principal tuba of the Fort Wayne Philharmonic. In the job for 45 seasons, Sam Gnagey saw the Ft. Wayne Phil grow its core from four to 44 during his tenure.

The musicians today have health insurance, pension contributions, and other benefits that make it possible for them to center their lives around their work in the orchestra (supplementing, of course, with teaching and other work) and to raise families and retire with dignity. I’m proud to say that some of those gains were attributable to work my dad was involved in, serving on orchestra committees, as a founding ROPA delegate, and as an officer of Local 58 (Fort Wayne, IN).

But those gains are not secure in Fort Wayne, where musicians have been working without a contract since the beginning of 2015; nor are similar gains made over the past 50-plus years secure anywhere, for any orchestra without constant vigilance and an ever-renewing dedication to collective action.

I fear that to younger generations of orchestra musicians raised in an “entrepreneurial” age of dwindling union density, the striving and sacrifice of previous generations of musicians is invisible. I worry that young musicians, who have spent their entire lives up until the moment they land their first orchestra job (and beyond, as long as they remain on the audition circuit) engaged in a Darwinian struggle for artistic survival, may not naturally adapt to a climate where collectivism brings the greatest rewards. I worry that older generations of musicians, already overstretched with existing obligations, won’t effectively pass on to their younger counterparts the lessons of history and help ignite in them the flame of collective action.

In this context, there are two things of which I am certain. First, in the absence of robust unionism, both within each of our orchestras and throughout the entire music business, we will sooner or later see all the gains we’ve made over the past 50-plus years crumble beneath our feet. And second, the AFM today provides musicians with a superb support structure for the kind of robust unionism necessary to preserve those gains and grow the industry for the next 50 years.

The lion’s share of symphonic collective bargaining takes place at the local level. The exception is Federation-negotiated media agreements, which govern creation of a product that, of course, knows no geographic bounds. Federation media bargaining allows the union to tap into the power of the “super-collective” of all musicians and ensures that compensation will be tailored to reflect the commercial value of the multitude of media products in today’s markets. But even local bargaining, between employers and local unions assisted by orchestra committees, takes place within a nurturing medium created and maintained by the AFM.

While the symphonic player conferences originated with a grain of sand—musicians’ dissatisfaction with a lack of democratic representation within their own union—ICSOM, ROPA, and OCSM are now pearls of the AFM, and are valued as such. Their networks of information sharing and collegial support, including highly effective “calls to action” supporting orchestras in trouble and annual conferences where musicians meet and share experiences, have become indispensable.

The Symphonic Services Division (SSD), created in response to demand from player conferences, functions exclusively to support symphonic musicians and their local unions. SSD maintains a wealth of resources, including wage and condition charts, a CBA database, and a series of educational webinars. And it employs a superb staff available to assist with bargaining, as well as contract administration and enforcement.

The AFM and Employers’ Pension Fund (AFM-EPF), a defined benefit holdout in a world where investment risk is increasingly shifted to pension participants, continues to provide a solid pillar for retirement security. The AFM Symphony-Opera Strike Fund and the AFM-ROPA Emergency Relief Fund provide much-needed benefits to musicians enduring a work stoppage, giving them sustenance to continue the fight.

AFM symphonic musicians benefit further from their association with musicians performing in all genres who share similar concerns about wages, working conditions, and the future of music as an art form. This larger community of musicians empowers the AFM to lobby for legislative and regulatory initiatives important to all musicians, such as those concerning ivory in musical instruments and airline carry-on rules. And all musicians benefit from the AFM’s affiliation with the AFL-CIO and its resources, connecting musicians to their union brothers and sisters working across a wide variety of industries and professions.

I know the orchestras of St. Louis and Fort Wayne are not alone in honoring retirees at season-ending concerts. In the coming season, let’s resolve that before these folks depart our stages for well-earned retirements, we sit down together with them and our newest orchestra members for a conversation about the gains the elders have seen in their professional lifetimes and the collective action with the AFM, which made it all possible. Conversations like these just might light a fire under the next generation of AFM activists!

Music Business, Resources

Solidarity and Arts: Know Your Rights!

August 20, 2015 IM

by Laurence Hofmann, Contract Administrator, Communications & Data Coordinator, AFM Symphonic Services Division

Know your rights! As obvious as it might sound, it can’t be overemphasized.

There is a type of question asked by symphonic musicians about the desired collaborative relationship with local representatives and the orchestra committee, and how to solve disagreements with management. Queries may include topics such as dismissal without “just cause,” too short of breaks between run-outs, arbitrary seating, hiring orders, discrimination, wages, etc. Other strictly union questions might pertain to membership dues, rights involved, grievances, benefits, etc.

Of course, this is just a sample of the specific questions from symphonic musicians. The AFM handles a larger array of questions. Some of these are also common to other music genres, like: Can I fly with my instrument as carry-on? Is it banned under endangered species regulations? When will I receive payments for new use? And, why do film productions still go abroad to record soundtracks?

One of the sources of answers that is immediately available to you is your Collective Bargaining Agreement (CBA). You can also search the AFM document library, Opus 2012, Opus 2015, and/or watch the union educational video webcasts (covering healthcare, grievances, or many other important topics) in the SSD Resource Center on afm.org.

And don’t forget to check AFM Facebook and Twitter accounts for current information. Additionally, the AFM publication International Musician offers in-depth details. Your local bylaws and AFM Bylaws might provide guidance on a more general basis. AFM locals and symphonic player conferences publish their own newsletters. And, of course, there are other organizations with information for musicians like Content Creators Coalition and MusicFirst (my personal favorites).

To be your own best advocate, you should know the CBA for your orchestra. Your CBA alone gives directives to understand your rights (and obligations) within your orchestra. A comparative analysis of CBAs will help to put your situation in perspective with the national (and international) industry. For several decades, ICSOM, ROPA, and OCSM wage charts have provided an amazing tool to get a comparative look at CBAs. Data has been collected from CBAs and complemented by data from local unions (for example, dues) and orchestra managements (expenses, public and private funds, management salaries). At a glance, you can learn about the economics and working conditions in various orchestras. What kind of performances are guaranteed by the contract? What do they pay? What benefits are provided to musicians and at what cost to them? These are just a few examples.

The current 2014-2015 wage charts are now available to AFM musicians in an innovative format. The digital charts can be downloaded, saved, and/or printed, as needed, from our new website: wagechart.afm.org. In the coming months, this dedicated website will acquire new features to allow dynamic and interactive use of the charts, both current and past.

For example, the charts will soon be updated in real time with delegates able to change their data immediately after successful negotiations or upon receiving data for the tax year from the union local or management. Gradually, historical data will be made available, providing an opportunity to observe an orchestra’s progress. Furthermore, AFM members will be able to search, extrapolate, analyze, and compare several orchestras and report on specific subjects. Some searches will generate tables and graphs. Every single document (charts and reports) can be saved and printed.

One of the main advantages of up-to-date searchable data is that it empowers your arguments for wage increases and working condition improvements. These wage charts are essential negotiating tools. They will provide a look at past and current information to help you change the future.

The creation of this innovative, dynamic, and interactive website was made possible through the collaboration of ICSOM Chair Bruce Ridge, ROPA President Carla Lehmeier-Tatum, and a task force composed of ICSOM Secretary Laura Ross, ROPA Secretary Karen Sandene, Richard K. Jones, and OCSM President Robert Fraser. I thank all of them for their valuable input in support of this alternative to printing the charts, which was initially motivated as an environmentally friendly alternative. All the other benefits of a digital wage chart are value-added advantages that evolved from having made this decision.

Knowing your rights is the first step in being able to claim your rights. Communicating with local officers and/or consulting with the orchestra committee and union stewards are also key. United we have a stronger voice as evidenced in the Minnesota and Atlanta orchestras, which are coming back stronger than ever.

The AFM and its Symphonic Services Division (SSD) have been joining forces with other organizations and government representatives to tackle the issue of the ban on endangered species. This ban resulted in difficulties for musicians traveling with their instruments. In an attempt to ease the understanding of this complicated issue, I have edited various IM articles by AFM Political Director and Director of Diversity Alfonso Pollard into a specific guide for musicians who might have instruments containing components of endangered species—elephant ivory, tortoiseshell, pernambuco, and Brazilian rosewood. It is part of the AFM Complete Guide to Flying with Your Musical Instrument available on the AFM.org website Member’s section Documents Library, in the Legislative folder.

I’ll tirelessly keep my commitment to musician’s causes. If you have any questions contact me at (212) 869-1330 x211 or lhofmann@afm.org.

You are not alone. We all support each other. That’s why, together we are the union!

Music Business, Resources

Having Musicians on the Boards of Directors May Not be a Good Idea

August 7, 2015 IM

Steve Mosher

Bernard LeBlanc

by Steve Mosher, Associate Director, Symphonic Services AFM Canada, and Bernard LeBlanc, Director, Symphonic Services AFM Canada

A quick look at the 2014 OCSM Wage Chart indicates that 17 of 20 Organization of Canadian Symphony Musicians (OCSM/OMOSC) orchestras have at least one representative to their boards of directors. One orchestra has four representatives, and six orchestras have full voting responsibilities. The time that we’ve spent on this topic is reminiscent of the discussions we’ve had about whether musicians and other workers in the arts in Canada should be considered employees or self-employed. While there’s still no definitive ruling on the employee versus self-employed question, there is news on the matter of musicians on boards of directors.

The point here is not to argue the pros and cons of musician involvement with our boards. There are several articles in the archives of the AFM, the player conferences, and the Symphony Orchestra Institute that deal with this issue. The discussion was rekindled in November 2013, when Orchestras Canada received an opinion letter from a law firm regarding the remuneration of directors, with reference to changes in the Canada Not-for-profit Corporations Act. There are a few such opinions available on the web at sites like Canadian Charity Law. The Ontario Ministry of the Attorney General website offers the following:

“Generally a charity cannot pay a director to act in the capacity of a director. Also, a director cannot be paid for services provided in any other capacity, unless permitted by a court order. In appropriate circumstances, payment for services other than as a director may be allowed by court order or by an order made under section 13 of the Charities Accounting Act, where it is in the charity’s best interest to do so.”

(NOTE: Registered charities are often referred to as not-for-profit organizations. However, while both types of organizations operate on a not-for-profit basis, they are defined differently under the Income Tax Act. The terms “charity” and “not-for-profit” are interchangeable for the purposes of this article, since the same rules apply to both.)

The Ontario Ministry of the Attorney General further addresses the duty to avoid conflict of interest: “Directors and trustees should avoid conflicts of interest. A conflict of interest arises when a director or trustee has a personal interest in the result of a decision made by the charity.” Katherine Carleton of Orchestras Canada shared their opinion letter with the delegates at the 2014 OCSM/OMOSC Conference and it gets more to the point, “In general, if an orchestra is a charity, then any musicians who are paid directly or indirectly by an orchestra cannot sit on the board of that orchestra as a director, regardless of whether the board seat is voting or nonvoting.”

There are always wrinkles to legislation, and there is no absolute rule that covers every situation. The Canada Not-for-Profit Corporations Act applies in provinces that follow common law. A provincial court can state that a common law rule does not apply in that province. In the case of Quebec, there appears to be no restriction on board participation by employees in not-for-profit organizations, since it is the only province in Canada that follows civil law, not common law. There is one orchestra in Quebec that has taken over its board, installing musicians. They feel that this is the only way to keep the orchestra afloat and it seems to be working, at least in the short term.

But Michel Nadeau, general director of The Institute of Governance of Private and Public Organizations (IGOPP) in Montreal, is clear: musicians should not be members of boards of directors, no matter as voting member or not. He explains that decisions taken by all board members are for the long-term viability and well-being of the organization; these decisions might be against musicians’ interests and would put the musician in a difficult position facing his peers. He adds that annual activity reports from the executive director or the board to the musicians should be a priority of management to maintain good working relations and should be sufficient information from the board.

The Toronto Symphony Orchestra deals with musician representation in Article 27.7 of their collective agreement, as follows: “On an annual basis, two members of the orchestra shall be selected by the Orchestra Committee, with the approval of the members of the orchestra, to attend regular meetings of the board of directors, as permitted by the board of directors. To be clear, orchestra members are not members of the board of directors and, as such, do not have any voting or decision-making power.”

For Canadian orchestras, musician participation on boards of directors needs to end. We want to ensure that our orchestras comply with the Canada Not-for-Profit Corporations Act. At various times in the past, the AFM and OCSM have had voting representatives (or ex-officio status—also no longer allowed) to the Orchestras Canada Board of Directors. Orchestras Canada is in the process of changing their bylaws to ensure that they invite guests “fundamentally vital to our operations” so that the AFM and OCSM have voice in an informal arrangement. The same can apply to our orchestras.

There are alternatives to full participation on your orchestra’s board. Musicians should be allowed to attend board meetings as guests, with the right to speak. Musicians should also be welcome to sit on committees and advisory boards, since musicians are directly affected by the decisions made at those meetings. It’s one thing to have a voice in meetings but, according to the rules, a vote at the board is a clear conflict of interest. The message that we understand from the documents available to us is that directors cannot receive salaries, stipends, grants, honorariums, or consulting fees from a charity. The only way you can sit on the board is if you’re playing in the orchestra for free. Or you can seek a court order, but both options are rather extreme.

Employee or self-employed? We’ve probably passed the 50th anniversary of that debate, and for those of us who want to keep it going, it’s still alive. There might still be some life in the board discussion as well, but at least we now have clear parameters to guide the conversation.