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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)

FUTURE OPTIONS

Why does this all matter? Because it helps musicians determine 1) how and how much they can expect to be paid for their work and 2) whether they can receive health insurance and, eventually, retire. Most of the revered classical composers throughout history passed away broke; in American music there is a recurring pattern of organizing benefit concerts to assist in obtaining funds for medical bills and/or burying musicians. Some of the jobs mentioned earlier include the latter protections, but if you’re a freelance musician, how can you collect benefits? There are four options.

1) Independent health insurance and retirement account. As long as wages are high enough to invest in such, this is a viable option. Does it provide the same security as having benefits embedded in the job contract? No. Are there freelancers across a number of fields who carry this out successfully? Yes, and we wouldn’t want to belittle that. The other three options are all through the AFM.

2) Incorporating. A musician can form an LLC or S corporation. In the case of a group, the bandleader is the employer and the bandmembers are the employees. The purchasers of music hire the corporation, which distributes money to all members. This structure entails a fixed wage plus credits to the AFM pension fund, health insurance (one set amount of work hours qualifies the musicians for B plan, a higher number for the A plan, the details dependent on the local jurisdiction), parking and cartage compensation, rehearsal rates, etc. In addition to the caveats described earlier of designating the bandleader as the employer, there are expensive front-loaded legal fees and some recurring fees required in order to form and maintain this status. If a musician/group has a steady working schedule and sufficient income, this is no problem. For others, this business model is far less effective. It’s also not ideal in terms of flexibility. Suppose a musician makes their living teaching several students per day plus playing Monday as a member of someone else’s band at one venue, playing Tuesday solo at a wedding, leading their own band at a different venue on Wednesday, etc. How can that musician collect benefits?

The AFM's LS-1 contract
The AFM’s LS-1 contract

3) Individual union contracts. At the national level, there are the L-1 and L-2 for local performances as well as the T-2 for traveling, but the most versatile is the LS-1 (pictured at left). At the local level, the Music Services Contract has a similar function to the LS-1: The musician and the purchaser of music both sign a form agreeing on a base wage, pension contribution, health plan contribution, recording restrictions, and the option to add additional conditions. The union accepts these forms for any endeavors that are music-related, including teaching. Although this model works great on paper, so to speak, there are problems in practice, such as:

  • Teaching through a school/program dictates a contract between the program and the musician, but private teaching requires the musician to form an LLC. The paperwork is particularly tedious if the teaching is online: The teacher has to forward the contract form to the student, then ask the student to print it out, sign it by hand, scan it, and email it back—for every lesson, over and over (as it takes a considerable number of contract filings in order to become vested in the AFM pension and health plans).
  • Let’s say a musician performs at a club and asks the owner to sign the contract. The owner will likely respond along the lines of, “What are you talking about? I’m the club owner, I give you the contract to sign. I paid the band already—it’s a done deal. What do you want from me?”
  • If the musician somehow persuades the owner to sign the contract, the owner then writes down contact info. Every half-year, all individual union contracts are filed; if a dilemma arises while filing, a union staff member will call the owner, who will probably say something like, “That musician played here one night four months ago. What are you calling me for?” This creates unnecessary tension between venues and the union as well as the musicians—and therefore between the musicians and the union as well.

Many of these complications could be alleviated if the requirement for contracts to be two-party was lifted. It also seems reasonable that paying one’s union dues ought to grant one the right to place money in a pension/health fund without scrutiny. After all, it’s in the union’s interest to make it as convenient as possible for members, as their pension fund is competing with independent retirement funds that give their customers carte blanche. However, that’s easier said than done with a fund federally regulated by the Employee Retirement Income Security Act of 1974, which sets the parameters.

4) Unionize venues. In mid-1960, Broadway workers gathered for a strike that lasted nearly two weeks. On April 26, 1963, the attorney Burton Turkus (most well-known for the “Murder, Inc.” case; there’s a whole archive of his work at the Brooklyn Public Library) secured an arbitration award that repealed the consumption tax on tickets for entertainment. The tax abatement was then redirected into the pension funds for entertainment workers. Three attempts to initiate collaborations between Local 802 and music clubs followed, all through the jazz community in New York, and Turkus’ arbitration award was a vital precedent.

In the late 1960s, bassist Ron Carter had a positive experience with Local 802 in dealing with Columbia Records, collecting due payments for several live releases by the Miles Davis Quintet. Following this, in the early 1970s Carter worked with saxophonist Sonny Fortune to determine if they could apply the entertainment-tax repeal to jazz venues to increase wages and/or pay benefits for the performers. As Carter puts it, “The movement never got any traction, I got real busy, and Sonny moved back to Philly,” and so this effort never saw the light of day.

Flyer for the AFM's Jazz Campaign
Flyer for the AFM’s Jazz Campaign

From 1969 to 1972, bassist Bob Cranshaw and trumpeter Jimmy Owens were playing in the house band for The David Frost Show. In the green room, they would frequently hear fellow bandmembers discussing pensions and investments. Given their background in the jazz scene (where such conversations before a show were unheard of), they initially found this laughable. But as time went on they began to wonder whether there was a way to make it so that jazz musicians could receive the same benefits as Broadway, symphony, and film soundtrack musicians. In 1983, when John Glasel’s administration took over Local 802, the first Jazz Advisory Committee was formed, led by Cranshaw and Owens and also including drummer Bernard Purdie, trombonist Benny Powell, pianist Hank Jones, and bassist Rufus Reid, among others. In the late ’80s, assisted by field organizers David Sheldon, Geoffrey Jacques, and Frank Chapman, the committee began “The Jazz Campaign” to convince jazz venues to enter into union contracts. The movement never achieved notoriety, partly due to a lack of continuity in strategy, but a few venues did enter into short-lived collective bargaining agreements, including Eddie Condon’s, the Lenox Lounge, Michael’s Pub, Rick’s Lounge, and the West End Bar.

Members of Justice for Jazz Artists outside New York's City Hall
Members of Justice for Jazz Artists outside New York’s City Hall

In the mid-1990s, organizer Susan Borenstein worked with the committee to start up the “Justice for Jazz Artists” campaign (by far the most well-documented of the three). Its initial focuses were on recovering uncollected pension benefits for jazz musicians on labels where the AFM was a signatory, using public outreach to gather supporters of jazz musicians’ union representation, and identifying employers to potentially organize. Early on, the campaign achieved collective bargaining agreements with Jazz at Lincoln Center, the New School faculty, the Harlem Nutcracker show, and many musicians’ bands incorporating.

A few years later, new organizers came in and devised a plan to mirror the Turkus arbitration by removing the tax on tickets for jazz clubs and redirecting that money into the AFM pension fund for the performers. Committee members got musicians on board and spoke to various club owners, who agreed (with a handshake deal) that they would comply if the tax were repealed. In 2005, Owens, Hank Jones, and trombonist Slide Hampton traveled to Albany, N.Y., to perform for then-Governor George Pataki and formally present their proposal. Upon its acceptance, then-Chair of the New York State Assembly Ways and Means Committee Denny Farrell wrote the bill. Pataki’s staff then voiced qualms about the section of the bill requiring the venues to reallocate the tax money into the pension fund, and so it was rewritten to simply repeal the 8.25% tax on tickets for the six most prominent jazz clubs in New York City. This was passed and went into effect in 2006.

The result was predictable; the six venues didn’t honor their earlier handshake agreement and simply used the tax abatement for their own gain. The union wrote letters and made phone calls to the owners, all of which went unanswered (at their lawyers’ recommendations). Multiple protests were staged outside the clubs and the media covered the story. But the Justice for Jazz Artists campaign’s original intention—to propel a trend at music venues of all genres across the country that would eventually allow musicians to retire if they so chose—had been dashed. In 2014, the campaign was ended and the jazz/freelance sector of the union decided to direct their resources to other causes instead. (Today, the only nightclub in New York City under AFM contract is the cabaret venue 54 Below.)

Given that none of these three campaigns were successful, clearly the most effective course of action going forward is not to try the same thing again and expect a different result. It is, however, informative to observe why the venue-centered strategy worked in Turkus’ case but not in that of Justice for Jazz Artists. Several aspects factor into the equation:

  • Organizing on Broadway is far more straightforward since the same group of musicians work in the pit orchestra year-round; freelance musicians perform at a venue for a week or two at the most, more commonly a day or two.
  • There is a centralized authority for Broadway theaters, the Broadway League; there is no such centralization of music clubs (Live Nation doesn’t fall into the same category).
  • It’s vital that any unionizing campaign is built by actual people in the workplace. Some of the musicians who performed regularly at the six clubs in question were involved in the campaign from the beginning, but many were first notified via an invitation to a meeting after it had already launched publicly. Though numerous revered jazz figures signed on, there’s a difference between written endorsement and speaking publicly while using social media. Big-name musicians are often thought of as having clout, but at the same time they often live in fear due to the revolving-door relationship between artist managers and venue curators; speaking out could risk the loss of an agent and being blacklisted from venue(s).
  • In the 21st century, industries are increasingly moving away from pensions. It’s worth noting that the AFM pension fund never adequately recovered from the 2008 recession (and the current economic situation has also been damaging). Employers and their legal representation commonly make the case that the pension provisions of contracts require the employer to place money into a fund that has decreased its contributions to members over the years, where a 401(k) or similar model is a safer bet. It’s difficult to rebut that point, and if the union could convert its pension fund into an up-to-date system, employers might be less reluctant. Unfortunately, attempting such a feat would raise complications due to the AFM-EPF being a separate organization from the AFM. Winter Jazzfest’s current Local 802 contract consists simply of a minimum wage with no benefits; Local 257 AFM of Nashville recently began offering live performance contracts that are somewhere in between that and a standard AFM contract.
  • Freelance musicians are conditioned to think independently, rather than as a group.

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.