For good or ill, the use of electronic media has never been more central to our art than at the current moment. Streaming is a far from perfect way to consume music: even enjoyed through the finest playback equipment, a streamed performance lacks the vitality and immediacy of being in the same shared acoustical space with the performers. But since mid-March, streaming has been our primary means of connection with audiences and donors. And streaming is almost certain to play an essential part in the distribution and consumption of our work during the 2020–2021 season.
Recognizing that, the AFM collaborated closely with the rank and file members of the ICSOM and ROPA media committees to develop a framework for the streaming of content in the coming season. That framework waives traditional media payments but creates tiers providing generous amounts of free streaming in exchange for an employer’s commitment to maintain compensation and benefits to musicians at a given percentage of pre-COVID-19 levels. The framework incentivizes better treatment for musicians: a greater compensation commitment for 20–21 equals more minutes of free streaming.
Managers who have seen the framework love it—so much so that we sometimes ask ourselves if it is too generous. Managers of orchestras signed to the individual employer IMA have been quick to sign on to the side letter and are using it now to plan their seasons. Many managers of orchestras that are members of the EMA (the Symphony, Opera, and Ballet Employers’ Electronic Media Association, which is the multi-employer group that bargains the IMA with the AFM) also love the framework and tell us they would like to sign on. But in a bizarre twist, the EMA is now prohibiting them from signing it and from bargaining directly with the AFM, giving them no viable alternative to the AFM framework and impeding bargaining over local agreements to cover the 20–21 season.
To understand how we got to this odd and frustrating state of affairs requires a look back at the way media agreements unfolded through the course of the pandemic. First, some basics: the AFM bargains the Integrated Media Agreement (IMA) with a multi-employer bargaining group—the aforementioned EMA. The EMA consists of over 100 symphony, opera, and ballet institutions in the United States. Not all ICSOM and ROPA orchestras are members of the EMA, and an orchestra need not join the EMA in order to become signatory to the IMA. The AFM maintains two versions of the IMA that contain virtually identical substantive terms: one for EMA employers and one for those who have chosen to remain independent. The subject of electronic media, with very limited exceptions, falls within AFM, rather than Local, jurisdiction and must be bargained by the Federation.
On March 9, as the pandemic erupted in the United States, we began a conversation with the EMA’s consultants, Joe Kluger and Michael Bronson, about what media accommodations we might make to allow orchestras to remain connected with their communities during a period when regular performance was compromised or impossible. On March 12, the AFM entered into a side letter with the EMA to allow an orchestra to stream one concert per week in exchange for a commitment to pay all musicians for all work scheduled as of the date of the agreement during the 30-day period after the launch of each stream. The streams were to be kept “behind a curtain” and made available only to ticket buyers, subscribers, and donors. The idea was to replicate, digitally, the weekly concert experience an audience would have had in the hall, but for COVID-19. An employer could only use the agreement if it was ratified by the musicians of the orchestra and any streamed content was to be approved by the OC. AFM International President Ray Hair signed the side letter on his way out the door of the AFM’s New York office, headed to the airport to fly home to Texas. Bill Thomas, then-Executive Director1 of the New York Philharmonic and chair of the EMA’s negotiating committee, signed the agreement on behalf of the EMA.
On March 18, we revisited the side letter, expanding the range of archival content that could be accessed for streaming purposes, lengthening the period each stream could be available from 7 to 45 days, and creating “expanded volunteer promotional recording” opportunities. This document was also signed by Ray Hair and Bill Thomas, this time from their respective homes as the country engaged in a partial lockdown.
Two days later, the New York Philharmonic Orchestra Committee received a media proposal from Bill Thomas. The March 20 proposal sought virtually unlimited streaming of a vast swath of archival material with no media payments to musicians. To say it went far beyond the deal Thomas had signed with the AFM only two days earlier would be a gross understatement. Together with Fiona Simon (member of both the Phil OC and ICSOM media committee) Debbie Newmark set about analyzing the Phil’s wish list of material to determine what variances would be necessary to give them what they wanted. After hours of work, we concluded that about two-thirds of what the Phil wanted could be done by granting minor variances, some of which were within the authority of the OC to grant. The Phil declared this insufficient and demanded complete acquiescence to its proposal—carte blanche to distribute not only the items on their wish list but anything else they later deemed desirable. And hanging over the musicians’ heads was the Phil’s threat to invoke Force Majeure, laying off the musicians and cancelling their health insurance.
We’ve talked to a lot of musicians in tough spots, but the musicians of the NY Phil, on those days in March, at the epicenter of the pandemic in the US, were staring down the barrel of a gun like perhaps no other musicians in our collective history. With the musicians (some in treatment for cancer, some pregnant, others vulnerable to severe complications from COVID-19) in an unfathomably precarious position, the AFM had little choice but to agree to the Phil’s extortionate demands or risk the lives of the Phil musicians. The situation was further complicated by the fact that unlike in most cases where media is at issue, active negotiations almost completely bypassed the AFM, with the AFM asked to sign an agreement it had never seen just 90 minutes before it was due to be ratified by the musicians. The deal was inked on March 23, by Bill Thomas.
Later that same day, EMA consultant Joe Kluger proposed to us that the AFM agree to bargain side letters with any EMA member employer who wanted one, to cover the pandemic period. The EMA’s stated concern was that some of its members would be unable to maintain the 100% compensation requirement built into the March 12/March 18 agreements but would still want media flexibility beyond that provided by the IMA itself. With some inkling of the economic challenges ahead, the AFM agreed to this request and collaborated with the EMA on guidance to its employer members about how to conduct such individual bargaining.2 Over the next three months, we bargained dozens of side letters with EMA member orchestras. By agreement with the EMA, those were bilateral deals between the AFM and each individual employer; the EMA itself was party to none of the agreements.
In addition to the obvious challenges of bargaining media in a pandemic, the existence of the NY Phil deal created particular challenges for us as we bargained side letters with individual employers. Employers had heard about the Phil deal and viewed as a model what we saw conversely as a terrible aberration. Taking guidance from the EMA, employers tried to persuade musicians they needed completely free rein with media if the orchestra was to survive and then to deputize orchestra committees to argue the employer’s case with us.
In the face of this assault by the employers, our concern was to preserve, as much as possible and for as long as possible, the musicians’ compensation and the value of their recorded product. With ordinary performance impossible, we could foresee a time at which the musicians’ chief stock in trade would be extant archival content and we urged musicians to resist the impulse to “trade away their seed corn” just as the crisis was beginning to unfold.
Each of the completed individual side letters required the employer to maintain CBA wages or some lesser compensation agreed upon by the musicians/local and the employer. In exchange, the employer got an amount of streaming that was identical to or, in some cases, a bit more generous than what was permitted by the original side letter/MOU. Where additional streaming rights were granted, it was to accommodate a particular project or specific plans the employer had to reach a particular segment of its audience. Ironically, many of the employers who argued most vociferously that they needed absolute freedom with media have used very little of the media flexibility they attained.
As we bargained these deals with employers, we heard a common request that became an increasingly desperate plea: managers needed a media framework for the 20–21 season. They were trying to plan concerts. They wanted to sell subscriptions and tell patrons they could access a stream of a concert they could not attend in person. They needed to budget for what would likely be some extraordinary hybrid of in-person and digital events.
Initially, we resisted this plea. Getting each orchestra signed to its own side letter took time and there was immense pressure to get each deal done quickly. In April and May, it felt too soon to predict what would be needed in September, with the curve of the pandemic showing (short-lived) promise of flattening. But by May the flurry of initial side letter requests subsided (a little) and we began to engage the media committee in discussions about how to handle media for the coming season.
The committee spent many hours discussing how best to meet the anticipated media needs of the wide range of institutions that are signed to the IMA and their work deserves the highest commendation. One “must have” in this process was a document that would be adaptable to the widest possible range of circumstances. The result was the media tier framework, which provides some amount of free streaming content except in the most dire of situations, as where musicians have been furloughed without compensation or health insurance through a declaration of Force Majeure.
As the committee began its work, we received a letter from the EMA proposing to create a new multi-employer agreement for what the EMA described as “COVID-19 Phase II.” In this letter, the EMA laid out a set of “guiding principles” for the “Phase II” agreement. Among them were these particularly stunning “principles”:
- All electronic media agreement restrictions and payment requirements for electronic distribution of any archival and/or live performance capture should be suspended
- The agreement should not be contingent on the amount of compensation and benefits, if any, paid to musicians under the applicable CBA with the AFM Local
The EMA would have the AFM waive, on behalf of hundreds of out-of-work musicians, any and all payments for distribution of electronic media, whether archival or newly captured by musicians who were literally risking their lives to go to work. And they wanted us to do so without even the slightest suggestion that those musicians would, in return, receive any salary or benefits at all from their employers. The EMA’s letter, which could only be read as a request to re-open the 2019–2022 Integrated Media Agreement, got a chilly reception from the media committee.
In subsequent phone conversations, Ray Hair informed Bill Thomas that while the AFM had no intention of re-opening the 2019–2022 Integrated Media Agreement, it was willing to listen to the EMA’s specific requests for media in the 2020–2021 season and to give them due consideration. This is essentially the same approach every local is currently taking as employers seek mid-term accommodations for the 20–21 season. Thomas’s response was that the EMA was unwilling to engage in any discussions without reopening the agreement.
About contract re-openers: An employer’s request to re-open a CBA mid-term should be handled with care. Agreeing to re-open creates the possibility of bargaining on all terms of the contract and, if the parties reach impasse, implementation of an employer offer. Genuine impasse is nearly impossible to reach, but the better course is to avoid ever having to figure out whether you’re at impasse or not. So we generally decline the request to re-open, agree to listen to the employer’s concerns, trade “supposals,” and memorialize whatever agreements we reach in a side letter to the CBA. The CBA itself remains unchanged except as specifically modified in the side letter. And if the parties can’t reach agreement, we collectively shrug our shoulders and default to the terms of the still-intact and fully enforceable CBA.
We issued our invitation to the EMA to present its specific requests on May 27. By mid-June, the media committee had finished its work on the COVID-19 framework for 2020–2021 and it had been hammered into its side letter format.3 When the International Executive Board of the AFM gave the framework its blessing on June 18 we were still waiting to hear the EMA’s specific requests, but given the EMA’s insistence that discussions could only occur if we agreed to reopen the IMA, we were not holding our breath.
Before the ink was dry, we had our first customer for the 20–21 side letter: the Los Angeles Philharmonic. ICSOM media committee chair Peter Rofé was also working on negotiations for the LA Phil’s 20–21 season and he believed the framework would appeal to his employer. As we ironed out the details of getting the LA Phil (an EMA member employer) signed, we began to circulate the deal to other employers as well. Because the framework was intended to function as an incentive to compensation for musicians in the 20–21 season (“keep paying musicians and get free media!”) getting it into employers’ hands as soon as possible was key. And in doing so, we were following through on the agreement we had made with the EMA to bargain individual side letters with employers during the pandemic period.
Unfortunately, the EMA had apparently changed its mind about that individual bargaining. On June 22, Bill Thomas wrote to express the EMA’s displeasure upon receiving a copy of the side letter from one of its members, accusing the AFM of attempting to “impose a media agreement on an individual EMA member orchestra” and violating what it asserted was our duty to bargain in good faith with the EMA. Thomas’s email also advised us the EMA was informing its members that “any amendments to the IMA must be approved by the EMA.” In other words, the EMA was now prohibiting its members from engaging in the same individual bargaining with the AFM that it had asked us for just three months earlier—and threatening the AFM with legal action if we continued to abide by that agreement.
Although the EMA has since tried to place a fig leaf over its actions by claiming there was no agreement between the AFM and the EMA to engage in individual employer bargaining, the documents tell a different story.4 In a June 23 email, Bill Thomas admitted the agreement, writing that “at the height of the crisis, the EMA did agree temporarily to permit its members to bargain individually with the AFM over COVID-19 related media matters.” The problem, Thomas wrote, was that “the outcome of that process was not satisfactory” to the EMA. Which is an interesting complaint, given that in its individual COVID-19 side letters with EMA member employers the AFM did precisely what the EMA asked us to do on March 23: allow an orchestra that could not meet the 100% compensation requirement of the original March 12/March 18 agreements nonetheless to obtain some free streaming in excess of that allowed in the IMA proper.
No employer was turned away, no employer received less flexibility than that provided in the March 12/March 18 agreements. What we did not give those employers was carte blanche to stream unlimited content without any compensation—for media or otherwise—to musicians. And that, it turns out, is what they actually want.
On July 16, nearly two months after we invited the EMA to share with us its specific requests for media in the 20–21 season, the EMA finally sent a proposed side letter to the AFM. That proposal converts the “guiding principles” articulated in the EMA’s May 12 letter into the form of an agreement. A few days later, the AFM met with the ICSOM and ROPA media committee to discuss the EMA’s proposal. A subsequent communication from us to the EMA’s lawyer summed up the reactions of the committee:
Setting aside various details of the proposal that are deeply problematic, the proposal is built on a foundation that is utterly repugnant to the AFM and the musicians we represent: complete abandonment of any commitment to compensate musicians while giving employers carte blanche to distribute media content gleaned from the musicians’ creative work. The EMA’s proposal openly contemplates that musicians may be called upon to produce content (only some of which is actually labeled “volunteer”) for their employer even if that “employer” has completely stopped compensation and health insurance for musicians. The proposal would entitle this same “employer” to exploit unlimited amounts of existing content, without a penny paid to musicians. This total and complete decoupling of musician compensation from media rights is a radical departure from the principles that historically have undergirded our agreements and cannot form the basis of any agreement going forward.
We are not privy to the deliberations of the EMA or its individual employers. However, it is clear that Bill Thomas bargained a far richer deal for his own institution than he had bargained days before on behalf of the entire field, including institutions considered to be direct competitors of the NY Phil. If an EMA member believed that Thomas’s actions thereby reflected a conflict of interest, then resolution of such a conflict and redemption of Thomas himself would require the EMA to obtain, on behalf of all 100+ EMA employers, a deal similar to the one the NY Phil arm-wrestled from its musicians and the AFM. It is perhaps no coincidence that the EMA’s current proposal attempts to do just that.
In the meantime, EMA employers have told us they want nothing more than to be able to use the framework we’ve developed but that they are “shackled,” “handcuffed,” or even “strangled” by the EMA’s ban on their agreeing to the AFM’s 20–21 COVID-19 side letter. Those employers are not without choices, however. As we know, one EMA member employer (the LA Phil) has signed the side letter framework, apparently after obtaining the blessing of the EMA. Presumably, other EMA employers could seek similar permission from EMA leadership.
The other option available to employers is to resign their membership in the EMA. Resignation from a multi-employer bargaining group is permissible at any time except during the period when bargaining for a new multi-employer CBA has begun. The IMA remains in effect until June 30, 2022, so there is no such bar here. As it does with any employer that otherwise satisfies the criteria to become signatory to the IMA (Local AFM symphonic CBA, tenured orchestra roster, orchestra committee), the AFM would offer any former EMA member employer the opportunity to sign on to the individual employer IMA,5 subject to ratification by the musicians of the bargaining unit.
The AFM has repeatedly called on the EMA to work together constructively to allow symphony, opera, and ballet institutions to creatively meet the challenges of the coming season while also promoting and protecting the well-being of the musicians. That call has thus far been met with bullying tactics aimed at extracting complete freedom to exploit musicians’ creative work while providing those same musicians no assurance of compensation or health insurance. Your rank and file representatives on the media committee have ably represented you in demanding that any exploitation of media must be accompanied by a commitment to maintain some agreed-upon level of compensation and benefits pursuant to your local CBA, even if traditional media payments are waived. Our ability to hold that line will depend entirely on maintaining solidarity as orchestra musicians, united in our commitment to care for one another during this period of incomparable challenge.
Notes: Rochelle Skolnick is the AFM’s Director of Symphonic Services and Special Counsel. Deborah Newmark is Director of Symphonic Electronic Media for the AFM.
1. Bill Thomas’s current title is “David Geffen Hall Project Executive.”
2. That guidance, from the EMA, began with this statement:
We are aware that many EMA members have been unable to use the COVID-19 IMA Side Letter to release additional electronic media content, due to the parameters of paragraph 5 (which requires Employers to continue full payment to all musicians for at least 30 days following each release of material). The AFM continues to prioritize continued compensation for musicians but has now indicated willingness to negotiate a separate Side Letter with any EMA Employer that wants to release more content than is allowed under the basic IMA, but is not able to comply with the uniform terms and conditions of the updated EMA-AFM IMA Side Letter.
3. A copy of the side letter is available in the SSD Resource Center.
4. The entire correspondence between the AFM and the EMA, along with a copy of the 20–21 COVID-19 media side letter, is available in the Coronavirus Resources section of the SSD Resource Center on the AFM website. These materials can be found in a subfolder entitled “COVID-19 Electronic Media/EMA IMA.”
5. A copy of the individual employer IMA is also available in the SSD Resource Center.