{"id":3235,"date":"2020-08-03T19:58:09","date_gmt":"2020-08-03T23:58:09","guid":{"rendered":"https:\/\/www.icsom.org\/senzasordino\/?p=3235"},"modified":"2020-08-05T15:59:49","modified_gmt":"2020-08-05T19:59:49","slug":"electronic-media-for-a-covid-season","status":"publish","type":"post","link":"https:\/\/www.icsom.org\/senzasordino\/2020\/08\/electronic-media-for-a-covid-season\/","title":{"rendered":"Electronic Media for a \u201cCOVID Season\u201d"},"content":{"rendered":"

\"\"F<\/span>or good or ill, the use of electronic media has never been more central to our art than at the current<\/span> 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\u20132021 season.<\/p>\n

\"\"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\u2019s 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\u201321 equals more minutes of free streaming.<\/p>\n

Managers who have seen the framework love it\u2014so 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\u2019 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\u201321 season.<\/p>\n

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\u2014the 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.<\/p>\n

On March 9, as the pandemic erupted in the United States, we began a conversation with the EMA\u2019s 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 \u201cbehind a curtain\u201d 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\u2019s New York office, headed to the airport to fly home to Texas. Bill Thomas, then-Executive Director1<\/sup> of the New York Philharmonic and chair of the EMA\u2019s negotiating committee, signed the agreement on behalf of the EMA.<\/p>\n

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 \u201cexpanded volunteer promotional recording\u201d 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.<\/p>\n

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\u2019s 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\u2014carte blanche to distribute not only the items on their wish list but anything else they later deemed desirable. And hanging over the musicians\u2019 heads was the Phil\u2019s threat to invoke Force Majeure, laying off the musicians and cancelling their health insurance.<\/p>\n

We\u2019ve 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\u2019s 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.<\/p>\n

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\u2019s 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<\/sup> 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.<\/p>\n

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\u2019s case with us.<\/p>\n

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\u2019 compensation and the value of their recorded product. With ordinary performance impossible, we could foresee a time at which the musicians\u2019 chief stock in trade would be extant archival content and we urged musicians to resist the impulse to \u201ctrade away their seed corn\u201d just as the crisis was beginning to unfold.<\/p>\n

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.<\/p>\n

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\u201321 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.<\/p>\n

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.<\/p>\n

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 \u201cmust have\u201d 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.<\/p>\n

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 \u201cCOVID-19 Phase II.\u201d In this letter, the EMA laid out a set of \u201cguiding principles\u201d for the \u201cPhase II\u201d agreement. Among them were these particularly stunning \u201cprinciples\u201d:<\/p>\n