It was just after noon on May 9, 2009, in Washington, D.C., and while it may have been a beautiful (or a stormy) day, the members of the AFM negotiating committee had no way of knowing. After a year and a half of tough negotiations, culminating in three long days (and nights) with the Managers’ Media Committee in a cramped Washington hotel meeting room, we were on the verge of concluding a revolutionary new media deal. We had tentative agreements in place in virtually all the critical provisions that met some important union goals (described below) and also solved problems the managers had been complaining about for years. They covered nearly all forms of media, simplified media terms, provided greater and more flexible rights, and reduced many rates. Win-win, right?
Instead, at 12:15pm, the Managers’ Media Committee walked away, calling a halt to the multi-employer negotiations and leaving each orchestra institution to fend for itself in the media maze.
Why did they do it? We obviously can’t speak for them, but we can tell the tale of how a dedicated team of ICSOM Media Committee and ROPA Media Committee members, backed by the Federation and their local officers, spent a year and a half trying to redesign and simplify the world of media in ways we came to believe would benefit the whole field.
Our redesign was full of trade-offs made during tough but fair labor negotiations, while two opposing sides both accomplished some things they wanted. We firmly believe our particular redesign—as expressed in the terms and conditions agreed upon just after noon on May 9—met the needs of the great majority of orchestra managements and orchestras in the country. And it met significant goals we had set, as well. So, what did this newly redesigned agreement look like and how did we get there?
The story really begins with the previous two rounds of Symphony, Opera & Ballet Audio-Visual (A-V) Agreement negotiations. The A-V Agreement has covered television and non-TV A/V products for more than 25 years, since the early 1980s. In the early 2000s, managers began to complain bitterly that the Agreement needed fundamental change—but since no one really had the heart or the desire for the job at that time, those rounds of negotiations each ended quickly in extensions.
However, when the new round of A-V negotiations began in November 2007, the Managers’ Media Committee made it clear that they were determined this time to overhaul the audio-visual media field—to throw out the old agreement and begin again from scratch. They complained that rates had become too high for the current era in which television sponsorship money was scarce or non-existent (and television interest in our product was equally scarce), and that the Agreement was way too complicated and confusing to use. They also pointed to inconsistencies in the Agreement—like having to pay one up-front payment for a program that comes out first as a TV broadcast and later as a DVD but having to pay twice if the DVD release comes first.
Over the course of several meetings, we agreed it could make sense to address some of the specific problems the managers identified, and even give them some more flexibility in A-V media. We were concerned that managers had failed to take advantage of favorable changes agreed to in previous agreements and hoped this would change in a new agreement that would be designed to deal with their issues and ours as well. We did not want to see the continuation of the trend in which managers attempt to use media as a leverage point in local negotiations; we did not want to see continued pressure on national radio rates in local negotiations; and we were not eager to continue managing and negotiating multiple national media agreements—the A-V Agreement, the Live Recording Agreement (LRA), and the Internet Agreement.
So, we made a proposition in February 2008: We would address the problems identified by managers and explore greater media flexibility for them if they agreed to stop dealing with media piecemeal and to negotiate in the context of an integrated media agreement (IMA) that included national radio broadcasts, live recording, Internet, and all forms of A-V. In particular, we made clear that radio coverage—albeit radio coverage that would allow local control when establishing radio rates—was a crucial goal for us. (This belief had been given voice by orchestra representatives around the country at a media summit the AFM held in Virginia back in November 2007.) The managers were reluctant but agreed to explore this idea in “framework” discussions from April to June 2008—when they finally agreed to negotiate an integrated media agreement to begin in the fall.
A key reason managers agreed to go forward was the concept of a “media buffet”—an option in which an institution could obtain greater rights and flexibility in media in return for committing to a “buffet payment” in the form of a guaranteed payment to each musician. The buffet option idea was inspired by the Metropolitan Opera deal—despite the fact that we never really reached any common understanding with the Managers’ Media Committee about what that deal was. We looked at the deal and saw that the Met had put together a business plan that included an extremely significant commitment to media, plus significant dollars guaranteed to musicians as an annual fee that increased each year for five years, in return for which the Met was given broad media flexibility. The managers saw only the new rights, and skipped over the money. We envisioned an agreement in which the bulk of the new agreement would contain traditional “à la carte” rates for projects that were done one at a time, but we agreed to explore the possibility of creating one or more buffet options that would provide more flexibility in return for a buffet payment.
With that understanding, the Managers’ Media Committee pulled together a multi-employer group to start negotiations for an integrated media agreement. Negotiations began in November 2008. It is fair to say that we were dismayed at the outset. We came to the negotiations with a well-thought-through “concepts” proposal that designed three buffet option tiers (with increasing prices and rights), and, because the economy was beginning to cause concern, we even included the possibility of ramping up to the full buffet price over time. Our proposal was designed to help managements ease in to a buffet. The managers brought only a bare-bones proposal that barely distinguished between the buffet options and à la carte rates—and most media in their proposal, including television, was to be done for the most token of up-front payments or no payment (and the hope of revenue to share).
Meetings in December did not fare much better. At this point we had agreed that, for the immediate future, both groups would meet as subcommittees to allow for greater ease when scheduling meetings. (Ours included AFM counsel and staff plus five ICSOM and two ROPA representatives. The larger group included all 10 ICSOM Media Committee members and a number of local officers.) The Managers’ Media Committee spent most of the time arguing about whether the availability of the buffet option should depend on musician approval—a position on which we held firm. January and February 2009 went by without a meeting. We can’t know for sure, but it is quite possible that the managers’ failure to schedule a meeting during that time was due to their hope that the San Francisco Symphony negotiations, which were occurring at that moment, would result in a local media agreement that covered national media issues. That failed to happen, due in no small part to the outstanding efforts of Cathy Payne and her colleagues on the San Francisco media and negotiating committees. (They were assisted by SSD Director of Symphonic Electronic Media Debbie Newmark, ICSOM Media Committee representatives Bill Foster and Peter Rofé, and Federation counsel, Trish Polach.)
Since we were so far apart regarding buffet option issues, our negotiating committee decided to focus on the à la carte rates and structure for the March 2009 negotiations. That finally led to productive dialogue, and we even came close to agreement on news and promotion provisions that allowed expanded uses in these areas.
Having finally made some progress, it seemed like the managers had a renewed interest in getting something done during our April meetings. In fact, we reached agreement on an audio-only buffet option that provided broad (but not unlimited) rights for audio-only products. In return for a payment of 3% of base annual wage (with a floor of $900), an institution electing the audio buffet option would be allowed to tape all performances and would be entitled, roughly speaking, to unlimited radio broadcasts and unlimited streaming of that captured material. They would be entitled to release 600 minutes of recorded product, with no more than 300 of those minutes in the form of CDs (the rest as download-only products). We might have preferred slightly stricter limits on CD and download releases, and we definitely would have preferred more money. But we were particularly pleased with the fact that the audio buffet put a cap on the amount of download-only product available on the buffet. All things considered, we believe that the agreed-to audio buffet option was a worthwhile option for some orchestras.
While heartening, we still had a long way to go. Unfortunately, the managers had structured their multi-employer group authorization to expire on May 10, which added additional pressure since they were unwilling to request an extension. We insisted that the managers meet with us for at least two solid days prior to expiration of their group authorization; they agreed to meet in D.C. from 9am on May 7 until noon on May 9. So we took a cold, hard look at the situation and came to some important conclusions about how to reach an agreement that we wanted and could recommend.
We reaffirmed our commitment to obtaining radio coverage and established a goal to achieve up-front payments for recordings sold only as downloads. Under the Internet Agreement, orchestras can go straight to downloads (with no CD) for no up-front payment, as long as certain conditions are met. We saw such digital-only products as the wave of the future and concluded that it was time to require up-front payments for both download-only products and streams, even if doing so required a trade-off that included a slight drop in the live recording rate for CDs.
We also needed to put an end once and for all to the managers’ push for television payments based on a percentage of weekly scale. We had insisted from the beginning that all orchestras—big and small— continue to earn the same amount for national television and not be penalized by a loss of income under this new agreement. Moreover, we had no interest in a precipitous drop in television rates, a position from which we never wavered in discussions with management. However, we agreed that, to achieve this goal, we needed an entire overhaul of television rates—one that abandoned the complicated structure of imprint payments (for each capture) and release payments, and established instead a clear and simple system that we could support and that managers could live with.
Our very clever negotiating committee devised a whole new system for television, based on per-minute rates, and we crafted a whole new A-V buffet proposal that gave greatly increased A-V (including television) rights with the per-minute rates as the foundation. To jumpstart the May meetings, we presented this proposal in advance.
And then, from our union caucus on May 6 through noon on May 9, we worked like demons. From the glacial pace of Fall 2008, we moved into comparative warp speed, with the result that by noon of May 9, we had reached substantial agreement with the managers on all the audio and audio-visual à la carte provisions as well as the audio buffet options. We had obtained our goal of national radio coverage (and protected existing local agreements for national radio syndication by grandfathering them), obtained our goal of establishing up-front payments for download-only products and streams, established our per-minute television rate structure, and reached negotiated agreements on the per-minute rates. The managers had gained a vast simplification of the media landscape, broader and more flexible rights in all categories, and price cuts in many.
So why did the managers walk away, instead of concluding a deal? Again, only they can say. But the only substantive issue dividing us at that point was the potential A-V buffet option and certain approval issues. Perhaps with more time we would have been able to work through the A-V buffet issues, and we offered alternative options to address the approval concerns, but the managers declared that we were too far apart and left for the airport. Frankly, we were angry. But we were also extremely puzzled. It had been clear to us for months that very few orchestras would be interested in an A-V buffet option, and from personal experience we knew that orchestra approval was not a universal concern among orchestra managers. Not every orchestra is all that interested in television or has ready television opportunities; moreover, many orchestras right now are focused on issues other than media. It simply did not seem to us that the A-V buffet option or orchestra approval should hold up a deal, or that managers across the country should be left in a lurch, deprived of all the benefits just negotiated.
So where do we go from here? Under the labor laws, the Federation remains the bargaining agent for national media issues. Each and every orchestra institution that is a signatory to the A-V Agreement, the Internet Agreement, and/or the Live Recording Agreement has an obligation to bargain with the Federation for successors to those agreements. Therefore, any musicians who receive a media proposal (or a hint of a media proposal) should call the Federation as soon as possible.
Furthermore, as a negotiating committee we are convinced—despite our disappointment with the Managers’ Media Committee—that institutions across the country should not be deprived of the benefits of the IMA. So, you will be hearing more about this groundbreaking agreement as we reach out through the country speaking to orchestra committees, negotiating committees and musicians about the details.
The dedicated ICSOM subcommittee members included ICSOM Electronic Media Chair Bill Foster (National Symphony), Peter Rofé (Los Angeles Philharmonic), ICSOM Governing Board Members at Large Cathy Payne (San Francisco Symphony) and Matthew Comerford (Chicago Lyric Opera Orchestra), and ICSOM Secretary Laura Ross (Nashville Symphony). The subcommittee could not have done its work without the extremely valuable ideas, opinions, and input from the rest of the ICSOM Electronic Media Committee during full committee meetings and countless phone calls. Those committee members are Paul Frankenfeld (Cincinnati Symphony), Fiona Simon (New York Philharmonic), Roger Ruggeri (Milwaukee Symphony), ICSOM President Brian Rood (Kansas City Symphony), and ICSOM Chairperson Bruce Ridge (North Carolina Symphony).
ROPA was ably represented at these meetings by ROPA President Carla Lehmeier-Tatum (New Mexico Symphony) and ROPA Vice President Paul Austin (Grand Rapids Symphony). ROPA Secretary Larry Gardner (Fresno Philharmonic) and former SSD Director Laura Brownell were involved in much of the discussion that led to the IMA. SSD Director of Symphonic Electronic Media Debbie Newmark was a terrific asset during the process. Many thanks go to Patricia Polach for her assistance in preparing this article. Trish is the Federation’s Associate General Counsel, and in that role she served as the negotiating committee’s chief spokesperson. Finally, many thanks to the Federation and all the local officers who supported our efforts, both by committing substantial financial resources to the negotiation and by standing staunchly by our media vision. Special thanks to Federation President Tom Lee and to local officers Mary Landolfi (L. 802), Gary Matts (L. 10-208), Billy Linneman and Dave Pomeroy (L. 257), Hal Espinosa and Vince Trombetta (L. 47), Teresa Gafford (L. 171-710), and Robert Levine (L. 8), who worked with us in the discussions and negotiations during the past 11⁄2 years.
