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January 27, 2015IM -
by Deborah Newmark, AFM Symphonic Services Division Director of Symphonic Electronic Media
On December 18, 2014, the AFM reached agreement with the Employers’ Electronic Media Association (EMA) for a successor Integrated Media Agreement (IMA) covering symphony, opera, and ballet orchestras working under collective bargaining agreements in the US. The new 2015-2017 agreement is the successor to the 2009-2013 IMA for current IMA signatory orchestras. For other orchestras still working under the Audiovisual, Internet, and/or Live Recording agreements it is the successor to those agreements.
The previous multi-employer group walked out in May 2009 after 18 months of bargaining the first IMA. That group ultimately tried to get locals to bargain over national media issues. This tactic didn’t succeed as the Federation won rulings from the National Labor Relations Board and the US Court of Appeals affirming the AFM’s sole authority to negotiate over orchestra media issues. Over the course of the 2009-2013 IMA, various orchestras approached the Federation to work under the agreement and we successfully obtained 92 signatories.
As we approached the expiration of the first agreement, 72 orchestras forming a new group came to the Federation and requested negotiations. This group of orchestra employers represents a combination of current IMA signatories, as well as representatives of orchestras still working under the older symphony, opera and ballet media agreements such as the Audiovisual, Internet and Live Recording Agreements. The request to return to multi-employer bargaining with the AFM was a major victory, firmly establishing their acceptance of the Federation’s jurisdiction and authority.
The Federation agreed to enter into negotiations with the EMA and negotiations began December 2013. We met over a one-year period for multiple two- to three-day periods in both Chicago and New York City. From the beginning, it was clear that the EMA had different ideas for the next IMA. Their initial proposals were a full assault on the wages and working standards in the existing agreement. They were looking to record everything without compensation and release media for revenue sharing with no upfront payments.
They presented us with terms such as, “unencumbered capture,” “unconstrained distribution,” and the ability to define virtually every media project as promotion, which, in their view, would be virtually unlimited. They were also looking to explore “business opportunities” that would undercut terms and conditions of our commercial recording agreements such as SRLA, motion picture, television, jingles, and videogame agreements. The EMA also proposed elimination of all “floors” in the current agreement, which were necessary to ensure that musicians would be paid no less than a certain minimum. This was especially important in light of the fact that a majority of the IMA quotes rates as a percentage of local scale for both weekly scale and per service orchestras. They also sought to eliminate the approval rights our musicians enjoy. This was contrary to the principles espoused by managers over the last decade about collaboration and partnership being hallmarks of the relationship they seek with their musicians.
Our committee was resolute. They were determined to maintain standards that had been achieved in the first IMA and to protect against circumventing the terms of the Federation’s commercial media agreements that would have provided low cost ways to provide recordings to commercial companies.
Our committee repeatedly made it clear that this approach was a nonstarter and that we weren’t going to ravage the protections already in place and agree to a revenue-share-only model for orchestra media. We were not going to allow orchestra institutions to steal work from commercial recording musicians or to undercut our existing agreements.
We finally got our message across. The EMA gave up their attempt to create a contract from scratch. They agreed to use the 2009-2013 IMA as the basis for the successor agreement and agreed with the Federation’s terms to put a fence around the commercial work so the IMA could not be used to undercut other Federation agreements.
Highlights of the New Agreement
For musicians new to the IMA, it integrates all the terms regarding live recording, Internet, and audiovisual projects that were previously covered by the Live Recording, Internet and Audiovisual Agreements. All is contained under one umbrella, including national and foreign radio, which dramatically simplifies the process of creating and distributing symphony, opera, and ballet media.
The upfront payments included in the current IMA and expressed as a percentage of scale remain the same, save one change. Under the CD provisions, there is a new, higher cost alternative for CD distribution without tier payments. The rate remains the same for a release with tier payments, but it is two percentage points higher if the employer opts to release the product without having to pay tier payments, which are due after selling 15,000 units of CDs and downloads.
Our committee held firm in rejecting the EMA’s original concept of expanded news and promotion, including the use of complete works. But our group did believe there was room to expand the provisions of the agreement that would work to the benefit of musicians and our institutions. This expanded use could only be agreed to as part of a package that included the EMA’s acceptance of the Federation’s proposed side letter regarding audio and audiovisual recording with nonclassical featured artists and the EMA’s withdrawal of its expansive promotion proposal.
The resulting terms for news and promotion include 40 minutes of capture of a service for promotional use (up from 30 minutes); an increase in the number of minutes of product a news broadcaster can use, from three minutes to 10; an increase in the number of minutes the employer can use a promotional clip on its own website, from nine minutes to 15, consisting of nonconsecutive five-minute segments; and an expansion of the number of times a free concert may be streamed, from once to twice, and it now may remain available on the orchestra’s website for 45 days. The battle over the use of complete works for promotion was resolved by limiting use of up to 15 minutes of continuous content, up to six times per year, as long as each 15-minute segment is from a different work. This is restricted to the employer’s website or social media sites, or major sponsors or media partners.
The new agreement creates a formal process for addressing the issue of donor gifts and musician interviews that had previously not been included in a national media agreement. The new provision states that musician interviews shall be strictly voluntary. The individual musician has say over the time, place, and duration of capture (up to 45 minutes), with the final product not to exceed 15 minutes. The recording may not be posted without the musician’s approval and it must be taken down at the musician’s request.
Another area of heated battle was the issue of simultaneous streaming of local radio broadcasts. A local collective bargaining agreement may contain provisions for local radio but it is the Federation that has jurisdiction over any form of streaming that is not, and never has been, local. The 2015-2017 IMA makes this distinction clear and allows for the simultaneous streaming of local radio broadcasts without compensation. But any on-demand streaming requires the appropriate payment under the IMA.
The last contentious issue had to do with orchestra institutions’ desire to create media product with nonclassical featured artists (rock/pop, etc.). A number of orchestras had started pushing the boundaries that were created to protect against encroaching on the work of commercial recording musicians. It also resulted in offering more favorable terms in symphonic media agreements that would undercut the Federation’s commercial media agreements, thereby providing cut-rate media to those stars. We fought strenuously to ensure that orchestra musicians would not be used as a low-cost back-up band on a concert recording with pop stars. We did not want to see this work exploited for the benefit of the headline artist. We did not want to see orchestra institutions become content providers to the commercial world at IMA rates.
We made it clear that it was not our view that no orchestra media project could ever involve a nonclassical artist, but that recording with one had to be subject to strict limits, if the employer wanted IMA terms and conditions to apply. The resulting side letter provides a reasonable means to avoid misuse of the IMA, while allowing a limited number of projects to move forward. The IMA is an agreement that is designed to benefit the orchestra institution and its musicians. It’s not geared to providing content to commercial third parties. The side letter allows for one—and only one—IMA project per year with a nonclassical pop or rock artist only, if the orchestra is billed as a featured artist on the project. In the case of live audio recording or nontelevision audiovisual recording, the institution must own the master recording and all copyright rights in the recording. All other IMA terms and conditions must be met. This side letter will sunset in June 2017, prior to the expiration of the IMA. This provision does not apply to sports events, which must be done under the appropriate Federation agreement.
This was a tough and lengthy battle, but the Federation succeeded in fighting off a determined effort to erode media standards. Success would not have been possible without the strength and tenacity of the entire negotiating committee including AFM President Hair, AFM staff, rank-and-file representatives, local officers, and Federation counsel, Patricia Polach.
IMA Negotiating Committee: