We Cannot Direct the Wind, But We Adjust the Sails
[Republished from the 102nd AFM Convention Program book]
Since the dawn of the 21st century, the AFM has adjusted, adapted, and battled in countless ways to continue to support its members. As our industry has evolved, every aspect of it has been affected by challenges, from rapid technological advances to globalization to lockouts and disasters. Looking back on how we’ve dealt with these challenges, we can be proud of the steps our union has taken to continue to ensure musicians live and work in dignity, are compensated fairly, and have a meaningful voice in decisions that affect them.
In the early days of recording, the AFM could not have imagined the challenges it would face. A Wall Street Journal article from February 2000 gave an astoundingly accurate prediction: “Recording industry watchers have long envisioned a not-too-distant day in which music lovers could download their favorite songs and easily transfer that music to their homes, cars, and portable stereo systems. While the digital delivery of prerecorded music may still be an experiment, it’s a thriving one.”
While modern technology has allowed musicians to share their music in ways we never thought possible, it has also challenged the AFM to ensure musicians continue to be fairly compensated for their work and that laws governing copyright and fair use keep up with technology and globalization.
In 2000, the AFM clearly saw the challenges ahead. Napster and other P2P platforms allowed the illegal transfer of copyrighted recordings at the click of a button. The AFM worked to battle against this new form of piracy in the US and Canada, joining an unprecedented alliance of musicians, songwriters, music organizations, and record companies in a campaign to increase public awareness and protect copyrighted materials.
Gradually, things improved. By 2004, sales of legally downloaded songs had shot up more than tenfold, with 200 million tracks purchased online in the US and Europe. Digital music downloads were included in the US singles charts for the first time in 2005. Illegal use continues to be a problem, but ever-improving technologies flag such use and discourage would-be thieves.
Today, digital music is the norm. Consumption has transitioned from downloads to streaming, with most people using legal sites for listening. However, the battle to ensure musicians are fairly compensated continues. In 2021, record labels made two-thirds of their revenue ($9.5 billion) from paid interactive subscription services like Pandora, Amazon Music, Spotify, and Apple. But, the per-stream payout to rights holders (labels) that year was a paltry $.0033 to $.0054, shareable with the featured artist per the artist’s deal with the label. Meanwhile, YouTube is a prime beneficiary of a loophole in the US copyright act and, therefore, as a user-generated content platform, has no obligation whatsoever to pay artists and copyright owners for works streamed.
Agreements and Adaptions to Digital
Through lobbying efforts to amend copyright law and generate new, innovative agreements, the AFM continues its work to protect and compensate musicians in the increasingly digital world. The Digital Performance Rights Act of 1995 and the Digital Millennium Copyright Act of 1998 amended the original Copyright Act to provide performance royalties in digital media to copyright holders, featured performers, and nonfeatured performers (session musicians).
The AFM & SAG-AFTRA Fund was created to administer and distribute statutory noninteractive digital performance and audio home recording royalties established under copyright law and royalties from various foreign territories. In 2020, more than 42,000 session musicians and vocalists in all 50 states and Canada shared $62 million in royalties collected by its Intellectual Property Rights Distribution Fund. The performance rights organization SoundExchange was established to collect and distribute performance revenue from noninteractive digital services, including those on cable, satellite, and internet webcasts. It works on behalf of 650,000 creators and has paid more than $10 billion in distributions to date.
As music consumption continued to transition away from physical products and downloads, the AFM worked to connect its residual pension funding to streaming. In January 2017, AFM President Ray Hair announced that the AFM’s negotiating team had reached a new Sound Recording Labor Agreement (SRLA) with the major recording companies. For the first time, the companies were obligated to contribute a portion of interactive streaming revenue to the Sound Recording Special Payments Fund (SRSPF) and the Music Performance Trust Fund (MPTF). New provisions also require the companies to make substantial guaranteed annual payments from interactive streaming to the AFM and Employers’ Pension Fund (AFM-EPF).
In January 2023, Hair announced an agreement with the recording industry for a successor SRLA that ensures the SPF, MPTF, and AFM-EPF will continue to receive sizable payments, securing a portion of the industry’s revenues through the exploitation of music from digital streaming and licensing.
Easing Global Travel
The globalization of the industry has also increased the need for musicians to cross international borders for work. Among the challenges musicians face are regulations regarding the safe transport of instruments on planes and through customs. Disparate airline policies regarding the transportation of instruments long plagued musicians. This problem worsened after the 9/11 attacks and stricter security checks that followed.
The AFM spent more than a decade trying to clarify and improve the ability of musicians to fly with instruments as carry-on baggage. These efforts resulted in the FAA Modernization and Reform Act of 2012, which was implemented in 2015. The law states that if the instrument fits in the airline luggage bins and the owner boards early enough to have available space in the bins, a musician cannot be forced to check their instrument.
Complicating international travel are regulations concerning the transport of instruments that may contain components of endangered species. When the US strengthened trade controls under the Endangered Species Act in 2012, the AFM went to work lobbying to develop a “passport” to help musicians who own instruments containing those materials. Without a waiver, they were at risk of having their instruments—their work tools—confiscated while going through customs.
To that end, the AFM has worked with the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) to create a Musical Instrument Certificate to permit international travel with musical instruments that contain endangered Brazilian rosewood, tortoiseshell, reptile skin, ivory, or other protected material. Earlier this year, the AFM worked with its International Federation of Musicians (FIM) allies to successfully lobby Brazilian government representatives against putting stronger restrictions on the cross-border transport of Pernambuco, which is the main component of many professional instrument bows.
Another cross-border issue in which the AFM is involved is securing visas for musicians who wish to work in the US. The 9/11 terrorist attacks resulted in stricter travel policies. Overnight, there were long delays for Canadian members and other foreign musicians seeking visas to enter the US for performance.
When the US launched a $1,000 Premium Process visa service in 2001, the turnaround time for ordinary visas for Canadian members was extended to more than 120 days, and Canadian musicians lost gigs. In 2004, the AFM began an aggressive campaign to get the Citizenship and Immigration Services (USCIS) to make it easier for Canadian members to work in the US. The recommended processing time for Canadian member visas is currently 90 days, though some are processed within 60 days.
While the AFM’s Canadian Office manages work permits for Canadian musicians, the AFM’s New York office writes letters of recommendation for other foreign musicians wishing to work in the US. This work with P-2 visas is an area of constant change and monitoring by the AFM. For example, just as our industry is recovering from the pandemic, the USCIS has proposed a 251% fee increase ($460 to $1,615) for P artist visas and a 260% increase ($460 to $1,655) for O artist visas. The AFM lobbied against the fee increase with a letter to the House Homeland Security Committee on behalf of working musicians everywhere.
Another concern in our increasingly global marketplace is the offshoring of work to avoid fair pay and residual payments. The AFM has called out film productions that receive US tax breaks only to send their scoring work overseas to avoid paying musicians fair wages. The AFM has worked hard lobbying for legislation to close these types of loopholes.
An Ever-Growing Freelance Scene
With the increase in do-it-yourself music technology, the number of independent working musicians has exploded. To assist these members who carve their own paths in our industry, the AFM launched its Freelance Services Department in 2004. This year, Freelance Services overhauled and relaunched the AFMentertainment.org online talent booking portal–the first Federation-run booking service representing thousands of acts throughout the US and Canada. AFM Entertainment guarantees that net wages will be at or above the local union’s scales, and locals will receive both work dues (if applicable) and copies of contract documents. AFM Entertainment handles all communications with potential purchasers and ensures every gig booked is a union gig.
Not only are musicians working differently, but they are finding new markets for their music. While music production was once a tightly controlled industry where studio time came at a premium, music production is now affordable to the average musician. They can quickly and easily post recordings and videos to get their music out into the world. The AFM has created new agreements and revamped old ones to protect these entrepreneurs.
The Joint Venture Agreement is the simplest of all AFM agreements and offers vital protections to musicians who create their own media. It now has a video component, simplifying the protection of self-produced online media. Recordings may be solicited for exhibition over the internet, if all musicians on the recording consent to it. If they hire other musicians to be on their album, but likely won’t reach the 10,000-unit sale threshold, musicians can use the Local Limited Pressing Agreement.
Alliances and Coalitions
Never before has it been easier for unions to reach out, garner support, and organize. The Federation has creative marketing experts who leverage social media to get the word out on the issues that matter to musicians. This rise in awareness has also led to the AFM working with national and international coalitions to amplify its power and messaging. Through these types of partnerships, the AFM also gathers valuable insight into common challenges by listening to viewpoints and ideas from across industries and worldwide.
The AFL-CIO Department for Professional Employees—Arts, Entertainment and Media Industry (AEMI) Coordinating Committee has been a powerful lobbying ally, allowing us to work with and coordinate our efforts with other artist unions. Our work with them includes lobbying efforts related to arts funding, copyright protection, and restoration of tax deductions for artists.
In 2007, the AFM partnered with individual artists and other music industry organizations committed to fairness in radio to launch the musicFIRST Coalition. The coalition aims to correct the US Copyright Act so that performers will be paid when their work is broadcast on the radio. The AFM is also a member of the Future of Music Coalition, founded in 2000, to ensure musicians have a voice in issues that affect their livelihood. It also provides an important forum for discussing matters intersecting music, technology, policy, and law.
One of the AFM’s most important alliances in the global industry has been the International Federation of Musicians (FIM), which includes 70 musician unions from 60 countries. In March 2023, the AFM hosted the FIM Presidium at its New York City headquarters with AFM President Ray Hair who served as a vice president of FIM.
AFM Faces Its Biggest Challenge
One of the greatest assets of a union is the ability of its members to support each other in times of crisis. AFM musicians have aided one another through many work stoppages and disasters. The empathy and generosity of our brothers and sisters is a tribute to our union. There are countless examples of AFM musicians collaborating to share music and resources while demonstrating support.
During 2013 and 2014, the Minnesota Orchestra endured the longest symphony lockout to date. Musicians provided much-needed financial and moral support. More recently in San Antonio, symphony musicians worked together to donate their time and music to the Musicians of the San Antonio Symphony (MOSAS) Performance Fund to help support musicians through the strike and subsequent bankruptcy of their symphony.
Following 9/11, AFM locals around the country donated to New York City Local 802’s relief fund. Broadway theater musicians stood with union actors and stagehands as they voluntarily reduced their salaries by 25% for four weeks to keep the theaters from going dark.
Our symphony orchestras are always quick to gather and respond to disasters, encouraging with music and organizing benefit concerts in troubled times. Musicians from the US and Canada held benefits to support victims of the Southeast Asian tsunami in 2004, and more recently orchestras held concerts to support the people of Ukraine. Closer to home, benefits have supported musicians affected by numerous weather-related disasters, from hurricanes to wildfires. Following many one-off collection campaigns, a permanent AFM Emergency Relief Fund was created in 2018 to collect donations aiding members adversely affected by catastrophic events.
In early 2020, the AFM faced what would become its biggest challenge yet, when the pandemic and subsequent quarantines put thousands of musicians out of work and careers on hold. The AFM quickly adapted agreements to allow live streaming of concerts and recording work to be done at home instead of in-studio. Musicians gathered online, buoying each other and their communities with their music. Now our musicians have emerged more vital than ever.
Through all the challenges of the last 23 years, the AFM has remained steadfast in its support for musicians and willingness to adapt to better serve their needs. ✦
By Cherie Yurco, International Musician staff writer