Most musicians make their livings through gigs — a word coined by jazz musicians in the 1920s to describe their freelance engagements.
Now that California is clamping down on gig work through AB5, the new law that took effect Jan. 1, musicians have assembled to say that it could have “a devastating and catastrophic impact” on them, in the words of a petition signed by more than 180,000.
“We are the originators of the gig economy,” said Jordan Bromley, a music industry lawyer who is a board member of the new Music Artists Coalition, backed by industry figures Dave Matthews, Don Henley, Anderson .Paak, Maren Morris, Meghan Trainor, Shane McAnally and others. The group has joined with the Recording Industry Association of America, American Association of Independent Music, the Recording Academy, Independent Music Professionals United and others to negotiate with labor on a way to make AB5 work for the industry.
“We’ve built an industry based on everyone figuring out a way to work independently and entrepreneurially,” Bromley said. “AB5 attempts to define the roles of employer versus employees where frankly sometimes it’s impossible.”
California is the acknowledged center of music creation. With the industry still recovering from digital disruption, many fear that business could migrate to Nashville or New York if the climate here becomes too inhospitable.
“This law could single-handedly end the music industry in California,” Ari Herstand, a singer-songwriter and organizer of Independent Music Professionals United, wrote in a viral blog post.
“Our whole industry is in a panic right now,” Herstand said in an interview. “I don’t know any independent musician who can afford the additional costs” of hiring others as employees. “Not to mention that if I become an employee for the gigs I play at music venues, I can no longer itemize my expenses under the Trump tax code. I had $50,000 in business expenses last year — equipment purchases and rentals, software and hardware, recording studio rentals, travel to/from gigs, lodging.”
Behind the scenes, intense negotiations are occurring among music unions, major labels, indie labels and consortiums representing artists both famous and obscure. The parties say they are within days of hammering out language to clarify musicians’ treatment under the new law — and hope to maintain much of the status quo. AB5 author Lorena Gonzalez, D-San Diego, hopes to include that language in a cleanup bill in March once a consensus is reached.
AB5 sets stricter standards for claiming that someone is an independent contractor rather than an employee. The problem, musicians say, is that their work is so fluid that they continually switch roles, working as performers by themselves or backing up others, doing live gigs and recording sessions, teaching, producing, composing and booking acts, for instance.
“Musicians rely on a wide variety of income sources,” said Berkeley’s Maurice Tani, who makes his living as a bandleader, singer, songwriter and instrumentalist. “I have serious concerns regarding how AB5 is going to affect my ability to hire individual musicians on a one-off basis, as well as my own ability to be hired by venues.”
Each gig requires a different arrangement, he said. He might contribute to a recording session in a studio, headline a live performance at a club, or play in a band at a corporate party. He might organize other musicians to join him or he might play in someone else’s group.
“If I pay someone $180 for two gigs and have to make them an employee and go through all the paperwork and bookkeeping involved, the whole thing becomes immediately untenable,” he said. “These people don’t work for me; I split the money with them.”
John Acosta, president of Local 47 of the American Federation of Musicians, which represents 7,000 musicians in Southern Cailfornia, says he sympathizes with musicians’ pain over the issue — but also thinks that many could benefit from the protections and benefits of being employees, such as workers’ compensation and unemployment coverage.
Even among his members, only a minority have full-time salaried music jobs, while most piece together part-time music jobs, freelance gigs, teaching and other day jobs.
Music insiders and press reports say that the federation of musicians blocked the industry from getting an exemption when AB5 was written, but Acosta, who’s heavily involved in the ongoing negotiations, says he wants to take everyone’s concerns into account and reach a compromise.
“Our ultimate goal is to ensure a healthy ecosystem for musicians throughout the state whether they’re in the union or not,” he said. “We’re trying to make sure we can maintain whatever improvement AB5 gives our industry while addressing concerns that are legitimate.”
For instance, two musicians who collaborate on a recording or a band performance should not have to form an employment relationship, he said. Nor should a garage band or struggling indie artists.
Where he thinks the law should require musicians to be classified as employees is in orchestras and theaters, as well as in some clubs and established labels. He wants to end exploitative practices like “pay to play,” where clubs require musicians to sell a certain number of tickets to land a gig. And for steady engagements at the same venue, “maybe there’s an argument to be made that (the venue is) an employer,” he said.
But many small theaters say they operate on a shoestring and simply can’t afford the increased costs of turning freelancers into employees. Small theater and opera companies in the Bay Area and Los Angeles already have had to cancel or postpone productions as they grapple with AB5. Gonzalez proposed $20 million in the 2020-21 state budget to help nonprofit arts organizations comply, but it’s unknown if that funding will be approved.
Some musicians who have already become employees fear that they could lose business.
Jeff Sherman of Petaluma has played the bass in a 10-piece dance band for 25 years. “The bandleader actually made us all employees to comply with AB5,” Sherman said. “He has had to raise the price of hiring our band by $650 a gig to cover payroll costs, payroll taxes, workers comp, etc. We have a few gigs that were booked prior to Jan. 1, but I anticipate our workload will decrease dramatically due to the increase of price.”
For many musicians, making sure that hiring entities are confident that they won’t be at risk is paramount.
“It’s largely so employers don’t get cold feet,” said Tad Piecka who plays guitar in the Los Angeles RAQIA Acoustic Trio. “If they’re concerned about the possibility (of being found in violation of AB5), they may just not hire anybody.”
Carolyn Said is a San Francisco Chronicle staff writer. Email: firstname.lastname@example.org Twitter: @csaid