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What Will the Biden Administration Do to Protect the Performing Arts?

Yes, a bailout is in order, but the situation is far more complicated than that

Performing arts workers marching in New York
Music Workers Alliance members marching in New York City (photo: Daniel Efram)

“No gigs, no relief, that’s why we are in the streets!” The group proceeds to march down Seventh Avenue to Times Square, playing a series of familiar melodies. For those on the sidewalks witnessing the demonstration pass by, it’s impossible not to dance to their uplifting music. Between the signs and the rotation of chants, their message is heard loud and clear: 

The performing arts workforce is currently inhibited from pursuing its work; therefore Pandemic Unemployment Assistance needs to be sustained until the industry has adequately bounced back. 

Higher priority needs to be placed on music venues developing a plan for a safe reopening.

Earlier that foggy day (October 26 at noon, to be exact), a crowd of New York-based musicians gathered at Central Park’s Naumburg Bandshell for a rally, organized by the Music Workers Alliance. Elected officials and leaders of artist activist groups, one after another, delivered impassioned speeches about how COVID-19 has negatively impacted the arts that are integral to our culture and identity. 

Former New York City Council member and current Executive Director of the Freelancers’ Union Rafael Espinal (well-regarded for having taken New York City’s notorious cabaret law off the books once and for all) preached, “Let’s be real. No one comes to New York City to see how great Wall Street is. People come to New York City to hang out at our bars and clubs to listen to the music that all of you are providing. So when we talk about a bailout, we have to make sure our musicians and our freelancers are not being sold out. That is why we’re out here in the rain calling all levels of government to create a bailout for our musicians.”

Rafael Espinal
Freelancers Union president Rafael Espinal at the October 26 Music Workers Alliance rally (photo: Daniel Efram)

The need is great. The restaurant industry reopened indoor dining at 25% for several months, gyms at 33% (ongoing today), and the airline industry has maintained 100% the whole time, but music venues were never acknowledged in reopening plans. Mayor Bill de Blasio’s Executive Order 148 imposed limitations on event permits in public spaces, some necessary and others extraneous. The New York State Liquor Authority’s August ban on ticketed events, though overturned, also exposed who are running the show: paid lobbyists. Whoever screams the loudest, figuratively speaking, gets their way. Yes, some restaurants hosted live music outdoors throughout the summer and fall (a few physically distanced indoors as well), but establishments that are relying on a fraction of their regular customers don’t possess the funds to pay the performers ample rates. Many industries have successfully moved their operations online, but a series of pitfalls in copyright law has led to digital piracy that prevents music workers from making a living wage doing the same.

Pre-pandemic, what were the most “steady” job positions in the music industry?

  • University teaching positions: While grade schools have reopened, colleges are primarily conducting their operations online. Private instruction can be taught through video, but ensemble classes carry severe restrictions due to latency. Both enrollment numbers and tuition prices have dropped, causing layoffs. 
  • Broadway: Musicals have been mandated to stay closed until June 2021 at the earliest. If they began rehearsing and another wave of COVID-19 occurred, the financial losses would be disastrous; therefore, even June is unlikely. An anecdote: A Broadway pit-orchestra guitarist (who will remain nameless out of respect for his family) was unable to receive Federal Pandemic Unemployment Compensation after the shutdown; a single dad who couldn’t pay his rent or feed his kid, he struggled to see purpose in everyday life when unable to pursue his passion. His life insurance policy covered suicide starting six months in. He perceived himself as having more value dead than alive, and ended up jumping off a Manhattan Plaza tower. Several other musicians in the United States have taken their lives since March 2020 as well.
  • Symphony, opera, and ballet: Also put on hold for an unforeseeable amount of time.
  • Cruise ship house band: Almost all cruise lines have their ships parked for the time being.

If even the most secure jobs are not safe, there can only be less certainty for freelance musicians. 

Is the adversity artists face anything new? Has a higher level of challenge been introduced by the pandemic? The trope of the “starving artist,” while true at times, has long been a cliché that hides the reality of a large, working middle class of performing, touring, recording, teaching musicians. The current 68% unemployment of artists due to COVID-19 has pushed much of this population into poverty. However, the vulnerability of those musicians is rooted in problems that date back long before the pandemic. (Disclaimer: This is not going to be another one of those articles appealing to people’s emotions regarding how bad musicians have it. Rather, the purpose is to dive deep into the roots of this situation and propel conversation about solutions going forward.)

Many people will be quick to say the main problem is one of supply vs. demand. While this is certainly one factor, many other fields also have an extensive “rank and file” yet still provide favorable working conditions for all. One may ask, for example, why it’s illegal to hire a cashier or waiter without paying them a guarantee, yet there’s no regulation against hiring musicians for “exposure” or a “pass the hat” situation. After all, performing music at a high level is an acquired skill that takes far more training and conditioning. (That’s no disrespect to cashiers or waiters, as any professional musician who’s worked such a job can attest.)

The simple reason for this: The Fair Labor Standards Act of 1938 deems that minimum wage applies to employees but not to independent contractors. Which type of workers are musicians? And if they’re employees, who is the employer? These two questions have been met with much ambiguity over the decades.

EMPLOYEES OR CONTRACTORS? A HISTORY

During the New Deal era in 1935, Senator Robert F. Wagner wrote the National Labor Relations Act (NLRA, with some roots in the Railway Labor Act of 1926). This legislation defined the contractor-supervisor relationship as one in which the supervisor decides the result and the employee-employer relationship as one in which the employer has significant control over the manner and means toward the result.

For years, the American Federation of Musicians (AFM) provided forms for live engagements consisting of an agreement between the purchaser of music and the musicians. While this allowed the union to keep track of who was performing for dues collection purposes, the primary tradeoff for the musicians was the clause regarding arbitration disputes: If the purchaser of music attempted to stiff the musicians, the union’s executive board reserved the right to act as an adjudicator, suing to recover the agreed payment(s).

In 1947, the U.S. Supreme Court case Bartels v. Birmingham declared that “Under the circumstances detailed in the opinion, the members of ‘name bands’ which play short-term engagements at public dance halls are, for purposes of the taxes imposed by the Social Security Act, employees of the band leaders, and not of the dance hall operators.” In 1971 an orchestra under Local 16-248 AFM of Newark, N.J., was playing a weekly engagement at a banquet hall. The union filed an unfair labor practice with the National Labor Relations Board (NLRB); in 1973 it was decided that, despite a steady engagement for multiple years, the musicians were still not employees of the hall. This was appealed in 1975 with the ruling affirmed. These decisions had little effect on musical hiring practices, contrary to what followed.

In 1979, a group under Local 468 AFM of Puerto Rico performed weekly at the Caribe Hilton in San Juan. A resulting legal action similar to the one in Newark led to a landmark 1982 decision by the U.S. Court of Appeals Second Circuit: Hilton International Co. v. NLRB declared that musicians are employees of the bandleader, who is an independent contractor. Soon after this ruling, large numbers of musicians across the country dropped out of unions, as their protective capabilities in the area of live performance were severely diminished.

Additionally, between 1964 and 2001, the AFM attempted on 12 separate occasions to have Congress amend the NLRA, granting all workers in the performing-arts field employee designation due to extenuating circumstances. The bill never passed, largely due to a lobbyist named Charles Peterson, who had been involved in several lawsuits against the musicians’ union going back to the 1960s. If one digs up the documentation of the Congressional hearings for the Live Performing Arts Labor Relations Amendments, it includes testimony submitted by “Charles Peterson Theatrical Productions, Inc.” Search for this company and its registration comes up, but no records of any theatrical productions can be found. Why? Because its purpose was to create a façade of being on performing artists’ side while surreptitiously undercutting them. In some written testimonies Peterson is identified as “Treasurer of the National Association of Orchestra Leaders.” Although the League of American Orchestras, National Orchestral Association, Regional Orchestra Players’ Association, and College Orchestra Directors Association are all reputable advocacy groups, the “National Association of Orchestra Leaders” is not.

On the state level, in 1986 the “Unions for the Performing Arts” coalition won a significant victory after six years of lobbying when New York State’s labor laws were amended to designate performing-arts workers as employees for purposes of workers’ compensation. New York State labor law sections 511-1A and 701-3B both reflect such policy. This precedent shows that the results can potentially be duplicated in other states. (Can but not necessarily will, as this feat was attempted in New Jersey and did not pass.)

Today, national law, state law, and local law can all state differing provisions on employee vs. contractor as well as the definition of an employer. Labor law can delineate one stance while tax law (W-2 vs. W-9 vs. 1099) and Workers’ Comp law codify different stances. A labor lawyer can collaborate with workers, navigating these policies to arrive at the best deal possible; however, such lawyers are particularly expensive.

There are other complicating factors. Freelance musicians have sometimes pushed back on being identified as employees. If a venue is their employer, this can be conducive to hindering the musicians’ artistic expression. If the bandleader is the employer, this imposes responsibilities for insurance, unemployment coverage, and more costs that the majority of bandleaders are unable to afford. In a collective or co-led group where the manager is the employer, the caveats may be a hybrid of those two. In all cases, the employees risk losing access to the tax deductions that have become habitual for musicians over time. These are all valid reservations to take into consideration, and they reveal that there is no all-encompassing solution to the ongoing contractor/employee quandary.

David Stern

David Stern is a jazz guitarist, composer, arranger, educator, and author based in New York City. As an activist, he is a contributing member of several Local 802 AFM committees as well as the Music Workers Alliance.