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

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.”

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.

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.

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 (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 - Nyack, NY - Feb 28, 2020 - Maureen's Jazz Cellar

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.

This article first appeared on JazzTimes on January 18, 2021, at this link: https://jazztimes.com/features/columns/what-will-biden-administration-do-to-protect-performing-arts/

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