Sexual harassment is a form of illegal discrimination that violates Title VII of the Civil Rights Act of 1964. At the March AFM International Executive Board meeting, the board adopted an updated sexual harassment policy that is unambiguous and instructive. The policy applies to all AFM employees whether they work in our New York City, Los Angeles, Toronto, or Washington, DC, offices, as well as those AFM employees who work “on the road” (international representatives and negotiators/organizers).
The AFM maintains our headquarters in the heart of Manhattan’s Times Square (often referred to as the “crossroads of the world” and best known for the ball drop on New Year’s Eve). We also maintain offices in Los Angeles, Toronto, and Washington, DC.
Recently, our AFM West Coast Office in Los Angeles moved, along with AFM Local 47, to the local’s new office building in Burbank. We previously leased space from Local 47 in their old building and we will continue to lease space in their new building located at 3220 Winona Ave., Burbank, California 91504. While there may be some hiccups during the transition, we are making every effort to keep the workflow moving and the communications open. Currently, 12 employees work in the AFM’s West Coast office.
Our Canadian office in Toronto has 15 employees (including Vice President from Canada Alan Willaert). This office handles the national Canadian issues for all 10 Canadian provinces and three territories. This can be enormously complex as the labor laws in Canada often differ province to province.
Our Washington, DC, office coordinates all our legislative activities. AFM Diversity, Legislative and Political Director Alfonso Pollard, our official lobbyist, and Sandra Grier work to promote our legislative agenda, while building relationships with our elected representatives.
I am often asked why the AFM keeps our headquarters in New York City. After all, NYC is crowded and expensive. Indeed it is, but this is where the labor community is located, not to mention many employers with whom the AFM negotiates. Another exceedingly important reason for staying in NYC is our experienced and valued staff. Any move outside Manhattan would certainly mean losing a number of employees who bring years of experience, knowledge, and understanding of the music business to their work each and every day. Currently, we have 33 employees working in the New York Office, including AFM President Ray Hair and myself.
For years, we have had the desire to own our headquarters office space, rather than lease. Ownership builds equity and any extra space can be leased to third parties, which will generate revenue for the AFM. While owning an entire office building in Manhattan is beyond our means, purchasing a floor in a building may be possible.
A few years ago an attempt to purchase a floor in an office building was scuttled because the burden on our cash flow created doubt about our ability to meet all our financial obligations. We just couldn’t swing it. Today, we find ourselves in a somewhat improved financial position. Make no mistake—there are plenty of things that can quickly affect our financial position negatively.
However, there are good arguments to move forward with a purchase at this time. The lease of our current space will expire January 2019. We will have to move out of our current space regardless of whether we stay in the same building. The landlord has told us that a tenant wants to take over the entire floor, including the space we currently occupy. We would need to move to a different floor, even if we decide to stay in the building.
Additionally, the rent will go up considerably. Looking at purchase projections versus leasing, the first few years after the purchase things will be very tight financially. This is particularly the case in year one when we will be paying rent for our current space, while the interior construction build-out takes place in the newly purchased space. But as we get into years three through 10, purchasing becomes more advantageous when compared to leasing. Keep in mind, with each year of ownership, our equity in the purchased space grows.
This may well be the only opportunity we have in the near future to own our space. Interest rates are quite low and a space that meets our needs is available. At this writing, it is far from a done deal. We are still negotiating with the owner. Any purchase will be contingent on presentation, review, and approval by the AFM International Executive Board. I’ll keep you posted as things progress.
As a follow-up to my August 2017 IM column on health care, this details recent actions on Capitol Hill. The House completed its work and passed a repeal and replacement for the Affordable Care Act (ACA) health care bill. The 2017 House American Health Care Act (AHC) was then forwarded to the US Senate for consideration. Upon receipt, the Senate determined that it needed to compile its own proposal. Hence, Senate majority members went into closed session to draft a new proposal.
The Better Care Reconciliation Act of 2017 (BCRA) was introduced as the vehicle used by Senate leadership to start the repeal and replace process. The following timeline provides a sense of Senate action, along with a glimpse at the procedural difficulty encountered after the seven-year attempt to totally eliminate the ACA. Though this process goes back seven years, we begin in 2017 with the 115th Congress, where a single party controls the House, Senate, and White House.
Health Care Timeline
May 4: House passes its version of health care reform, the American Health Care Act of 2017.
May 24: Congressional Budget Office (CBO) reports House bill (American Health Care Act) increases federal deficit by $119 billion; over 10 years 23 million would lose health care.
June 13: President Donald Trump weighs in with Senators at a White House lunch to “make the [House] bill more generous.”
June 22: Senate releases its Better Care Reconciliation Act of 2017.
June 26: CBO reviews draft Senate bill.
June 27: Senate Majority Leader Mitch McConnell delays vote; not enough votes for his Better Care Reconciliation Act (BCRA).
July 13: Republicans present updated version; moderates say new version will hurt those with pre-existing conditions.
July 15: Procedural vote delayed because of Senator McCain’s surgery.
July 17: Senators Mike Lee and Jerry Moran kill the bill by announcing they would vote against it.
July 25: Senator John McCain votes for a motion to proceed.
July 25: Senator Ted Cruz introduces a health care bill amendment to allow insurers to sell low cost health
insurance; bill is rejected by the Senate.
July 27: McConnell announces plans for his Health Care Freedom Act, or as his colleagues call it, “skinny repeal” bill; will not replace the ACA for two years or have a two-year transition period. It is supported by the White House, but Senators oppose the tactic.
July 28: ACA repeal vote takes place, defeated by all Democrats, and Republicans John McCain, Lisa Murkowski, and Susan Collins; bill would leave 16 million more people uninsured than ACA. After the vote, Trump continues to push for a health care resolution, while McConnell insists on moving on to tax reform and the debt ceiling.
July 28: House on August recess while Senate remains in pro forma session with no changes to the Affordable Care Act. (The pro forma session prevents President Trump from making recess appointments.)
For AFM members subject to requirements outlined under ACA, you should know that no additional work on health care has been scheduled. We expect more information after the August recess.
by Kim Roberts Hedgpeth, Executive Director Film Musicians Secondary Markets Fund
The Film Musicians Secondary Markets Fund (FMSMF) works to serve the film, television, and music communities and meet the needs of film musicians whose talents fuel the industry. To this end, the FMSMF is pleased to provide ongoing updates to the International Musician for the benefit of AFM members.
With the first six months of the FMSMF’s 2017 fiscal year now ended as of September 30, at the time of this writing, more than 150 new titles had reported residuals into the fund for the first time. Among the titles reporting for the first time this year are films such as The Peanuts Movie, Ride Along 2, Star Wars: The Force Awakens, Chi-Raq, Joy, and Deadpool, and television series such as Minority Report, 24: Live Another Day, The Catch, Agents of S.H.I.E.L.D. (2015/2016), and Wicked City. The list of “new” titles for fiscal year 2017 is now posted on the fund’s website, www.fmsmf.org, and will be updated as new titles report into the FMSMF for the first time during the remainder of the 2017 fiscal year.
As a reminder, when the FMSMF refers to “a title,” it refers to an individual motion picture, documentary, or television movie, or a single season of a television series.
The FMSMF distributed more than 15,600 payments to musicians and beneficiaries as part of its regular distribution on July 1, 2016. Another 545 payments were distributed in mid-September as part of the fund’s annual “omissions” distribution.
Learn More About FMSMF
The FMSMF was honored to conduct a workshop, entitled “FMSMF 101” for AFM Local 47 (Los Angeles, CA) members. This workshop is for the benefit of musicians who would like to learn more about the fund, how residuals work, and what the fund does to collect and distribute residuals to working musicians. FMSMF staff is always happy to provide such workshops for the benefit of working and aspiring musicians, and is available to travel to AFM locals outside of the Los Angeles area to conduct workshops at the local’s request.
Spreading the Word
FMSMF was proud to be an exhibitor at the American Film Market, November 2-9, 2016, in Santa Monica, California. This is one of several efforts the fund makes annually to reach independent producers and provide information, answer questions about film scoring, and about how the FMSMF works. These are also critical opportunities to remind new and aspiring filmmakers about the integral role that music plays to successful filmmaking, and the importance of planning ahead when budgeting. The FMSMF also attended the Toronto Film Festival in September, and plans to attend South by Southwest 2017 in March.
Visit Us on Facebook
Stay current with fund developments by visiting the FMSMF Facebook page and the website www.fmsmf.org. There you will find updates on fund policies, information on new titles, and new user features.
From everyone at the Film Musicians Secondary Markets Fund—nest wishes for a healthy and prosperous 2017!
For the past 10 years, the AFM has worked diligently with its US Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Coalition partners and the US Fish and Wildlife Service (USFWS) to protect and conserve endangered species, while helping guarantee the legal ownership, use, import-export, and value of musical instruments that contain CITES related materials. Our coalition’s work with the US Department of the Interior, USFWS, Department of Agriculture, and Department of Homeland Security, along with a range of international organizations, such as the International Federation of Musicians (FIM), has led to significant harmonization of both protective language for musical instruments in new USFWS regulations and global harmonization for cross-border movement of musical instruments within management authorities around the world.
What Is CITES?
As outlined on its website (cites.org), CITES is an international agreement among governments. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival.
What Is CoP17?
The Conference of the Parties (CoP) world wildlife conference meeting in Johannesburg, South Africa, September 24-October 5, brought the global community together to address the world’s biggest wildlife challenges and opportunities. (Visit the CITES website for more conference information.)
What Is Resolution Conf. 16.8?
CITES Resolution Conf. 16.8, Frequent cross-border noncommercial movement of musical instruments, was agreed upon at the CITES CoP16 held in Bangkok, Thailand, in 2013. It sets procedures for musical instrument certificates for travelers with instruments containing specimens of species listed by the convention, which allow them to avoid the need to obtain permits for every border crossing. The aim of Resolution Conf. 16.8 was to facilitate more practical and reasonable cross-border movements. In this context, parties believe the regulation should be proportionate to the potential conservation benefits and should provide a simplified procedure for individuals traveling with musical instruments for noncommercial purposes (edited from a CoP17 draft revision of 16.8).
Significance to Musicians
Professional, student, and amateur musicians, and collectors around the world, own, perform, and travel with musical instruments that they regularly use, trade/purchase-sell, import, and export and that contain component plant and animal materials controlled under the CITES international treaty. The US recently promulgated new rules under Section 4(d) of the Endangered Species Act of 1973 that effectively increased African elephant protection by placing a US ban on African elephant ivory trade. This was done in response to an alarming rise in poaching that fueled a growing illegal trade. As a result of our coalition’s work, these regulations, effective July 6, 2016, have an exemption relating to legally crafted, legally owned musical instruments. Visit “What Can I Do With My Ivory?” at https://www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answers.html for a comprehensive explanation.
With these and other rules in effect, the US was prepared to enter into negotiations and talks with the 183 nations that came together in Johannesburg to harmonize foreign national policies relating to the treatment of animal and plant species around the world.
Benefit of Union Membership
Is this something a musician could have accomplished alone? No. The importance of the AFM’s participation in CoP17 cannot be understated, as recognized by AFM International President Ray Hair, International Vice President Bruce Fife, Vice President from Canada Alan Willaert, IEB member Tino Gagliardi, and the rest of the IEB. They worked diligently to support our participation in CoP17. Because of my predecessor Hal Ponder and my own close collaborative work with coalition members, including the American Federation of Violin and Bow Makers, the League of American Orchestras (the League), National Association of Music Merchants (NAMM), Martin Guitars, Taylor Guitars, and Carnegie Hall, on September 2, 2016, the USFWS credentialed the AFM to participate as an observer to CoP17 with speaking rights on the floor. However, only parties registered as signatories to the treaty have voting rights, which for the US is the USFWS.
The AFM and its coalition had three main goals: 1) to make effective changes to CITES Resolution Conf. 16.8 relating to frequent cross-border, noncommercial movements of musical instruments; 2) to work with the USFWS in support of its efforts to foster the US endangered species proposals; and 3) to help US musical instrument manufacturers and makers avoid harmful language that could put the musical instrument trade and musicians in peril.
Through careful preconference meetings and research, observations from CoP17 party floor interventions, presentation of a statement from President Hair at a League side event, direct talks with party delegates, distribution of joint position papers, drafting and redrafting of our own coalition intervention, and participation in drafting during floor deliberations on CoP17 Document 42 introduced by the European Union, the coalition was able to get advancements adopted that successfully amended Resolution Conf. 16.8. Those advancements include, but are not limited to:
Encouraging parties to implement the procedures in Resolution Conf. 16.8 and ensure customs officials are aware of them.
Recommending parties not require CITES export permits or re-export certificates for personally-owned instruments containing CITES-listed species, where consistent with control in trade in personal and household effects.
Recognizing that, when individuals travel with legally-acquired musical instruments that are properly owned or loaned by an institution, person, or museum for purposes of performance or competition, the instruments may qualify for personal effects exemptions consistent with Resolution Conf. 13.7 (control of trade in personal and household effects) revised at CoP16.
Encouraging harmonization of cross-border noncommercial movement of musical instruments.
Special thanks to USFWS Director Dan Ashe, Management Authority Director Craig Hoover, and staff in attendance. We could not have been successful without USFWS support behind the scenes and on the conference floor. And of course, what would an international conference in Africa be without music? So a special thanks to the remarkable dancers and drummers who welcomed us to South Africa at the beginning of the conference.
Over the next three years, the parties will work to implement these changes with an eye toward agreement for the next CoP, scheduled for 2019.
As announced in the May 2016 issue of the International Musician, the recent ruling by the US Court of Appeals for the District of Columbia Circuit to deny the Lancaster Symphony Orchestra’s petition for review and grant the National Labor Relations Board’s (NLRB’s) cross application for enforcement is indeed a very important ruling, especially for the Lancaster Symphony Orchestra musicians. This decision affirms the NLRB’s classification of Lancaster Symphony musicians as employees, not independent contractors as the Lancaster Symphony Orchestra management asserted. Nine years is a long time to wait to be allowed to bargain a union contract, but I expect it will certainly be worth the wait.
Why was this outcome so important and why was it worth expending union resources to achieve this goal? I’m reminded of the repeating chant “The whole world is watching! The whole world is watching!”
While it may be an exaggeration to suggest that the whole world was watching this case, to be sure, many friends and foes of the labor movement were indeed watching. Our friends were hoping for a positive outcome for the Lancaster Symphony musicians because this case provides an opportunity for other musicians, and potentially other workers with similar circumstances, to finally cast off the yoke of misclassification.
Musicians classified as employees are allowed to join a union and bargain collectively. Wages, working conditions, job security, grievance and arbitration, pension, health insurance, vacation, and leaves of absence are all “mandatory subjects of bargaining” between an employer and the union representing its employees. When workers are classified as employees rather than independent contractors, their employer is also obligated to pay its fair share of Social Security and other statutory employment taxes, rather than shifting the entire burden onto the musicians. And employees, but not independent contractors, are entitled to protection under state workers’ compensation and unemployment compensation laws.
The life of a symphonic musician tends to be challenging enough without being misclassified as an independent contractor. Anyone performing in an orchestra knows how preposterous it is to suggest they are anything but an employee. The employer hires and fires, tells musicians where to be and when to be there, what to wear, when they can leave the stage, and yes, even how musicians are to sit and act.
As the court pointed out, musicians “must not cross their legs, talk, or practice while the conductor is on the podium, or interfere with the concentration of other musicians.” And, in a description that surely strikes a chord with every symphonic musician, the court observed: “the Lancaster Orchestra’s conductor exercises virtually dictatorial authority over the manner in which the musicians play.”
Now, with union representation, the Lancaster Symphony musicians will for the first time have a meaningful voice to engage in dialogue with their employer about their wages, benefits, and working conditions. And as negotiations for a first collective bargaining agreement finally begin, the whole world—or at least the world of symphony orchestra musicians—will still be watching what unfolds in Lancaster.
Early on, the significance of this case and the far-reaching ramifications of the outcome were not lost on the AFM, which has been fully supportive of the Greater Lancaster Federation of Musicians, Local 294, and the musicians of the Lancaster Symphony. AFM General Counsel Jeff Freund and Trish Polach of Bredhoff & Kaiser in Washington, DC, ably represented the interests of Local 294 as intervenors, working closely with the NLRB to vindicate the rights of the musicians. They deserve our thanks and recognition for their great work on this case.
But at the end of the day, the musicians of the Lancaster Symphony Orchestra are deserving of the highest praise, for they are the ones who had the courage to stand up for themselves by organizing and voting for union representation.
Bravissimi tutti! Let the negotiations begin!
The annual Canadian Conference, which took place in Windsor, Ontario, August 7-9, was special this year as it was a Unity Conference, held in conjunction with the Organization of Canadian Symphony Musicians (OCSM). The two conferences normally have significantly different agendas. While the attendees to each come from different backgrounds and have completely different roles, they are all connected by one common denominator— membership in the AFM.
Meeting new people and building relationships is so very important in music, yet much of that personal contact has given way to social media contact. While the Internet is tremendously valuable, it cannot take the place of one-on-one conversations. This was an opportunity to get back to basics, learn each other’s role in the industry, take advantage of the networking possibilities, and learn from diverse thinking in problem-solving exercises.
There were presentations from Local 145 (Vancouver, BC) and Local 406 (Montreal, PQ) to help the delegates better understand the current lack of film scoring in Vancouver and the unique circumstances involved in bargaining in the province of Quebec. Both spawned considerable after-hours dialogue, resulting in at least one resolution to form a committee to address the changing film scoring scene and review the existing scoring agreements. While a primary concern of the Vancouver local, Quebec also has a huge vested interest in the possibility of attracting scoring from Europe and other French-speaking areas. In addition, there are other francophone communities in Canada that are a market for this content.
While many topics were discussed, one of the most urgent was work at festival and trade show events where, while live music is often centric, musicians are largely unpaid, yet recorded and broadcast on cable or Internet. Another was the status of freelance players who are not covered by collective agreements. While they represent the largest sector of the membership, they are also the most vulnerable to exploitation, unpaid gigs, and unauthorized recording, and therefore deserving of far more AFM attention and specific services. That said, our freelance musicians and self-contained bands are the most difficult to organize, since the concept of Collective Bargaining Agreements (CBAs) or collective actions are foreign to them. For the most part, they find their own shows, market to their specific fan base, produce and distribute their own recordings, and seldom give a thought to utilizing AFM contracts for any of it.
An area of particular concern to the OCSM delegates was the erosion of CBC remotes. In previous years, each orchestra looked forward to at least a half-dozen broadcasts, which would both significantly increase the revenue on the gig, and generate interest in classical music among listeners. With the government’s slashing of funding and subsequent budget cuts, the CBC is left airing existing commercial recordings. The OCSM Media Committee, along with representatives from the CFM, is looking at creative options.
One of the highlights of the conference was the address by AFM President Ray Hair. An information-packed PowerPoint show began with the formation of the AFM, its roots, opponents, and raison d’être. While touching on the evolution of the Federation, it outlined the current agreements in place with employers—both US and Canada—and progress that has been achieved in the area of performance rights, regulations, and negotiations with other countries, ensuring proper compensation for commercial uses of North American music. Hair continued, describing attempts at union-busting (unfortunately, much from within), as well as the solidarity necessary to overcome, adapt, and prevail. He further used the AFM’s controversy with the Musicians’ Rights Organization of Canada (MROC), in its initial stages, as an example of the benefits to members that could be accomplished with dialogue and patience.
Any Conference loaded with that much information, controversy, and constructive communication must be deemed a success, and the contributing factor, in no small part, was the careful planning and flawless execution by the officers and members of Local 566 (Windsor, ON). Special thanks to Secretary Lynne Wilson-Bradoc and President Chris Borshuk for their hard work, attention to detail, and of course, the presentation of some of the finest musicians in the Essex-Kent area.
It was also pleasing to note many musicians attending as visitors from the local, as well as local officers. Special thanks to Local 802 (New York City) President Tino Gagliardi and Local 5 (Detroit, MI) President George Troia for attending and acting as resources for delegates. Members are always welcome and encouraged to attend these events to gain greater insight and see solidarity in action.
Of the many important and indispensable services that the International Conference of Symphony and Opera Musicians (ICSOM) provides for its members and the members of the AFM at large, our vital communication network is perhaps the most crucial. Electronic mailing lists and social media give us the ability to communicate instantly with each other, spreading news of opportunities and difficulties, and sharing solutions for issues both old and new that arise for our musicians and their orchestras. Of all the tools that ICSOM makes available, none are more topical and historically significant than our quarterly newsletter, Senza Sordino.
In 1962, ICSOM’s founders knew that, in order for our orchestras to survive and thrive, they must unite, and that a newsletter that could be read throughout the union and the field would be of great importance. For the first time, the issues affecting orchestra musicians could be reported and analyzed by those who knew the issues best—the orchestra musicians themselves. Senza Sordino (Italian for “without mute”) would be the perfect name for this publication.
The first issue was published in January 1963. That issue reported on numerous revolutionary developments for orchestra musicians, including four orchestra summits that had been held in the past year. There were negotiation updates from Los Angeles and Chicago, and a report about how Philadelphia Orchestra musicians were rising up against an unwarranted musician discharge.
One line that jumps off the page in that first issue is from the Cincinnati Symphony, where musicians reported “Last month we were granted the right to ratify our contract.” It is a reminder that so many of the rights that musicians take for granted today were once fought for diligently, and that those benefits and rights are only there to enjoy because of the sacrifices of previous generations.
The complete archive of Senza Sordino is available on the ICSOM website (www.icsom.org). It makes for fascinating reading for anyone who has ever played in a symphony orchestra, or who may one day want to become a member of an orchestra. This archive constitutes a crucial history of symphonies over the past half-century, detailing how orchestras performed, thrived, suffered, and emerged stronger both in our communities and our union.
As a new generation of musicians and leaders joins our orchestras, a reading of any single issue of this newsletter from any year would provide a rich education. Taking the archive in its entirety, it is overwhelming to think of what is represented on these pages and what might have become of our orchestras and our union if not for the work of ICSOM.
Just as the first issue reported on crucial topics, so does the latest. The May 2015 issue includes information on how to utilize new social media platforms, how musicians are serving their communities by organizing benefit concerts, the importance of music education, and how Baltimore Symphony musicians rose up as a beacon of hope for their city at a time of need.
And just as the first issue reported on how the Cincinnati Symphony musicians had gained the right to ratify their contract, the July 2015 issue of Senza Sordino reports on the conclusion of an outstanding negotiation with considerable gains for that orchestra, gains that would have been inconceivable without the actions first reported in 1963.
Now we have other options for our network of communication, and we utilize them daily—Facebook, Twitter, and e-mail. But Senza Sordino remains a stalwart friend of orchestra musicians everywhere. We send each issue to every local office in the AFM, as well as to every member of ICSOM. Each new issue is added to the archive on ICSOM’s website, viewable at http://www.icsom.org/senza/index. We hope that every issue is read with great interest, and we further hope that you will take a moment to read a past issue from the archive. We have no doubt you’ll be amazed at the wealth of information to be found.
Uber is trying to quash a class-action suit by drivers who claim they are employees and not independent contractors. The company claims the more than 160,000 American drivers control their own use of the Uber app and are therefore contractors. While the California Labor Commission has said that Uber drivers are employees and not contractors, the chair of New York City’s Taxi and Limousine Commission says her agency considers drivers for ride-hailing services such as Uber to be freelance workers, not employees. Five other states have ruled similarly. Classifying Uber drivers as employees would mean higher costs for the company, as it would likely need to pay Social Security, workers’ compensation, and unemployment insurance.
This month US District Judge John Kronstadt rejected arguments over expert witness testimony and jury instructions and denied a bid for a new trial, in the wake of the “Blurred Lines” jury verdict against Pharrell Williams & Robin Thicke. According to The Hollywood Reporter, the judge accepted the Gaye family’s contention that record labels should be held liable for their distribution of a song that was found to be a copy of Gaye’s “Got to Give It Up,” plus ruled rapper T.I. Harris Jr. who contributed a verse on the blockbuster “Blurred Lines” song a copyright infringer. Though the judge denied the family’s request that the song be removed from distribution, he did grant a request for an ongoing royalty rate of 50% of songwriter and publishing revenues. Kronstadt did reduce the damages from $4 million to just under $3.2 million, which reduced the jury’s verdict from $7.4 million to $5.3 million. Williams will now have to turn over about $358,000 in profits, rather than $1.6 million. Next Thicke and Williams will most likely bring the dispute to appeals court.