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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)

ORGANIZING PROSPECTS

For decades, the AFM has been trying to convince musicians across the genre spectrum to work together as one. This has proven to be far more idealistic than realistic. However, one thing that can be counted on is that when working conditions deteriorate, the musician(s) will be unhappy. Having the infrastructure of a strong musicians’ advocacy group in place is what helps organizing occur from the bottom up.

A survey from Local 802’s Indie Musicians Caucus conducted in September 2019 found that only 21% of union members (with a potential margin of error of 5% on either side) made the majority of their income from music work under union contract. Was this because they’re “rebelling” against the union? Of course not—they could have chosen not to be members and saved $220 per year in dues. The simple fact is that there are approximately 7,000 Local 802 members but there isn’t enough unionized music work in the Tri-State Area to pay 7,000 people’s rent; therefore, musicians need to work outside the union in order to survive. (It’s also noteworthy that those 7,000 are part of roughly 50,000 musicians total in the New York area.) The following story illustrates what the union is up against:

There is a lawyer in New York who represents major employers in the entertainment industry, including Madison Square Garden, Carnegie Hall, Radio City Music Hall, the entirety of Lincoln Center, and many more. In the early 2000s a children’s TV show called Between the Lions was working out a deal with Local 802 for compensating the musicians on the soundtrack. The union’s collective-bargaining unit frequently referred to “the Sesame Street model,” in which new music pays a wage plus standard union contract benefits; when the show brings back music from previous seasons, the fee is prorated based on how long ago the season was. This lawyer fought to modify the declining formula, and eventually both parties agreed to the alternative of a one-time $5,000 “signing bonus.” Shortly after this, the lawyer recalled the recurring mention of “the Sesame Street model” and went to PBS, approached the producers at Sesame Workshop, and suggested ways of helping the production save money on music. The show used a “change of genre” as the guise to cut back the amount of previously recorded music, then fire and replace the whole band. Although the new house band had a phenomenal lineup, active band members now received one rate for old music while inactive members received a reduced/capped rate; notably, the incoming band also had fewer members to pay. These actions are all legal and within the provisions of the profession (although it’s noteworthy that one of the lawyer’s associates went to jail for tax fraud in 2011), but it takes a special lack of empathy and remorse to implement them.

Having such lawyers on the scene reinforces the need for a state-of-the-art organizing department within the union, with a labor lawyer on retainer. (That said, possibly the most prominent performing-arts labor lawyer in the Tri-State Area passed away in 2011 after being indicted for embezzling ~$150,000 out of the American Ballet Theater’s union, the now-defunct Independent Artists of America. No, neither side is perfect.)

One of the primary obstacles to improving musicians’ working conditions is the Labor Management Relations Act of 1947 (colloquially known as the Taft-Hartley Act), which prohibits secondary union strikes. For example, suppose hypothetically that in the case of Justice for Jazz Artists the musicians had allied with the Teamsters Union to stop delivering liquor to the six New York venues until a deal was made with the musicians. This would have settled the issue instantly. Secondary strikes are legal in Europe (other than the U.K.), but the odds of repealing Taft-Hartley in the U.S. are quite low, especially given that the Labor Management Reporting and Disclosure Act of 1959 (sometimes referred to as the Landrum–Griffin Act) further restricted this practice. If a union violates this law, the NLRB can seize its assets and overturn its staff.

There are possible workarounds to this problem. One is forming a workers’ center comprising employees and leaders from multiple professions. If a company chooses to file a lawsuit, there isn’t any money present; if forced to disband, the center can regroup under a different name and carry on. Another potential remedy is through the organization of one all-encompassing performing artists’ union. A start would be to reform the outdated structure of the Associated Actors and Artistes of America (a.k.a. the 4As, consisting of the Actors’ Equity Association, American Guild of Musical Artists, American Guild of Variety Artists, Guild of Italian American Actors, and SAG-AFTRA) by merging all of them plus the AFM as a step toward industrial unionism (as opposed to craft unionism). The upsides would include:

  • Grouping all musicians, actors, dancers, comedians, and other forms of performers together would undoubtedly increase their clout, given that entertainment conglomerates have subsidiaries across countless platforms (particularly since the Telecommunications Act of 1996).
  • Vocalists currently are represented by the AFM in live venues, SAG-AFTRA on recordings, Actors’ Equity Association or American Guild of Musical Artists in theater (depending on the show), and in film/TV it depends on the agreement that unions make among themselves. Singers must pay dues to each union whose contract they’re working under for more than 30 days, making it unlikely that they can work enough in any of those narrowly defined jurisdictions to earn benefits. A merger will fix this problem.
  • DJs currently have no union; including them could integrate the hip-hop community, leading to a more accurate representation of the overall music scene.
  • There have been instances in the past where film companies have recorded soundtracks elsewhere (such as Romania) because they considered the AFM’s proposals on behalf of its members too expensive. If these workers were all under the same umbrella, the union could take the actors off the set until the film agreed to pay the musicians at their set price.

WHAT TO DO NOW

Circling back to the headline of this article (and thank you for making it this far), the United States has an upcoming change in leadership that presents an opportunity for improvement.

A 2020 roundtable on the entertainment industry hosted by the Biden campaign
Symone Sanders (top right) sort of answers the question asked by Alvester Garnett (bottom right) during a 2020 roundtable on the entertainment industry hosted by the Biden campaign

On April 18, then-presidential candidate Joe Biden’s campaign held a virtual roundtable on COVID-19’s impact on the entertainment industry. Drummer and artist activist Alvester Garnett had the opportunity to ask Biden’s senior advisor Symone Sanders, in the most direct manner possible, what their administration would do to protect the performing-arts workforce. Her answer turned the subject into talking points (long story short—it’s politics), making it apparent that the administration does not have a full-fledged plan. However

Biden has consistently been supportive of the arts throughout his political career, not to mention that Harris is a former member of SFJAZZ’s board of trustees. Moreover, one thing is evident through Biden and Harris’ recent actions and words: Unlike the previous administration, they listen! And they will listen if they’re told, for example, that according to a study from 2017, the arts constitute 4.5% of the United States’ gross domestic product (more than transportation and warehousing combined).

It’s perplexing how musicians born in Europe tend to come to America for the music scene, but musicians in America tend to tour in Europe to earn a living. This is because many European countries’ democratic-socialist governments subsidize the arts, while the intense, high-risk professional environment in America keeps musicians on their toes, forcing them to their highest possible level of performance and creativity. Is there a way to find a happy medium and achieve the best of both worlds? Hosting panel discussions on this topic that include high-level politicians and experienced performing-arts workers from a variety of backgrounds will help work toward formulating answers.

The most urgent matter by far is the need to ensure that all affected workers have convenient access to substantial unemployment insurance, healthcare, and rent/mortgage relief throughout the full length of the shutdown. As the Music Workers Alliance made clear at their march, “No gigs + no benefits = we can’t live.” A bailout for independent businesses is also becoming more necessary by the day; many music venues have been forced to close down, and the ones still standing have been barred from conducting regular business since early March.

The next area is the ability to earn income in the digital marketplace. One step is to reform the “safe harbors” in the Digital Millennium Copyright Act of 1998, Section 512. Online platforms, rather than individual uploaders, would be held liable for copyright infringement, encouraging Big Tech to adopt standard technical measures such as upload filters—thus preventing crime before it happens. Senator Ron Wyden also needs to cease his obstruction of the Copyright Alternative in Small-Claims Enforcement (CASE) Act. With this in effect, rights owners with grievances will be able to seek justice within the jurisdiction of the case tribunal instead of spending the six or seven figures required to file in federal court.

Looking ahead, competent representatives from the performing-arts field need to be at the table for reopening negotiations at all levels of government. Federal guidelines ought to be created to assist governors, mayors, and city councils in instituting science-based approaches to safe reopenings of all businesses, including venues, rather than auctioning off the ability to earn a living to the industries with the most powerful lobbyists. Then once venues are up and running, we will need to address the issue of how artists are paid.

Garnett, the one instrumentalist on New York City’s Nightlife Advisory Board, has proposed a measure to City Hall regarding nonprofits that receive an arts grant and/or tax break yet still neglect to pay respectful rates. For starters, minimum fees and workplace standards ought to be instated for all publicly funded venues. As for the private sector, cities could create a “seal of approval” (similar to when one walks into a bank and sees an FDIC sticker) for venues that choose to abide by the same standards. Obviously, nobody is going to walk inside and say, “Look, they don’t have the sign. Let’s go somewhere else,” and the owners know that; offering tax breaks and fee waivers for obtaining the seal can provide an incentive. A comparable idea was pitched by former New York City Council member Alan Gerson in 2009, allowing music venues up to 30% tax refundability for qualified business expenses including musician salaries, promotion, sound, and lights. Although this never passed, such a measure would be particularly helpful in current times when venues are burdened with extra safety expenses (plexiglass, outdoor heaters, etc.).

The new Democratic super-majority in the New York State Legislature opens up a possibility of real pro-musician labor reform, including “sectoral bargaining”—the establishment of a state commission to determine, with working musicians’ participation, fair minimum wages in different sectors of the industry. For example, one of the primary reasons that there are venues in which only the musicians are paid an ambiguous amount of money is that in any form of nightlife, the venues’ primary source of direct income is liquor and/or food; music serves as the bait for customers to buy one place’s marked-up consumables over another’s. With this in mind, one idea is a tiered minimum-wage system along the lines of:

Level 1—a listening room.

Level 2—an environment where background music is a significant attraction.

Level 3—a themed venue (i.e., a Greek bar or an LGBT club) where the attraction is split between the culture and the music.

Last on this list of starters: strengthening the National Endowment of the Arts. Expanding arts representation to the presidential cabinet level—as already has been announced for the science adviser—is also highly encouraged. Republicans supporting the 1994 congressional election campaign’s “Contract with America” infamously advocated abolishing the NEA entirely, and although that never happened, 1996 saw a 39% budget cut and 47% staff cut. The same year, Congress passed regulations against the NEA’s providing grants to individuals (with the exceptions of Literature Fellowships, National Heritage Fellowships, and Jazz Masters awards), recipient organizations sub-granting to third parties, and the writing of general operating or seasonal support grants. More than enough time and turnover in legislators have transpired for the NEA’s budget and policies to be up for reconsideration. Furthermore, whether subsidized publicly or privately, the IRS ought to be forbidden from touching one penny of any arts grant.

We all know that Biden and his staff hold a genuine interest in ensuring that all performing-arts workers have the opportunity to pursue dignified and prosperous careers. Why? Because they’re fans of music. And how do we know that? Because everybody is a fan. It’s simply inhumane not to be moved by any form of music. The pandemic has made it clear how absurd the notion is that musicians are non-essential workers. This art is essential to people’s mental health, particularly during times of adversity. Musicians who have recently been performing in parks and on the streets have been met with impromptu crowds savoring every moment of the experience. It’s a reminder that the creation of music is one of the most noble acts of humankind, cutting across all of society, fully encompassing the entire world.

Melissa Aldana, Pablo Menares, and Kush Abadey
L to R: Melissa Aldana, Pablo Menares, and Kush Abadey performing in New York’s Central Park in the fall of 2020 as part of Giant Step Arts‘ “Walk with the Wind” concert series (photo: Jimmy Katz)

Inevitably, some musicians will post this article on social media and list the points that have been missed. To those people, I’d like to say thank you in advance. It’s important that

  • voices and perspectives are expressed from all facets of the performing arts industry
  • non-musicians be vocal as allies
  • all are heard and this becomes a high-ranking priority to the decision-makers in power.

In the meantime, anybody reading this who may be interested in contributing to a musicians’ benefit charity can find a comprehensive list at https://www.arts.gov/about/nea-on-covid-19/resources-for-artists-and-arts-organizations.

Applause to everyone for persevering through the many challenges this last year has thrown at us. We’re going to make it through this.

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.