I got an email from a friend who is on the orchestra committee of a regional orchestra here in CT. He asked me if I knew anything about royalties or extra/recording pay for orchestra musicians, as the Board of Directors of the orchestra wants to do podcasts. There are two separate issues here; payment to performers for the recording and royalty payments for downloads of the podcast. I’m no expert but here’s what I found out.
If the orchestra is covered under an AF of M contract the answer is simple, leave it to your union reps to work it out with the Board. More information can be found at the American Federation of Musicians website.
Extra recording pay is really up to the performers or in this case the players committee that represents the entire orchestra. Orchestras usually record their performances for archival purposes. Sometimes Boards have a blanket agreement with orchestral players/committees that allow archival recordings to be used for promotional purposes with stipulations to length of excerpts. If the podcast is an audio recording and is within the parameters of this agreement, there probably is no issue; a podcast is basically for promotional purposes as long as it doesn’t cost anything to download.
Video podcasts, vidcasts or vodcasts, might be a different issue. Since orchestras can sometimes think and function in the same century as most of their repertoire, video may still not be included in the promotional agreement. A simple inclusion in this agreement might do the trick. A word to the orchestra committee: check with your players to make sure this is cool with them. Some players may not want to be on video for personal or religious reasons and others might want a constraint on how close the camera can zoom in on them or the section. (Hey, YOU wanted to be on the committee!)
I checked with a friend who just happens to be high up the IT “food chain” for a MAJOR record label and specializes in… you guessed it… royalties. Although I got a primer on the VERY complex calculations that go into royalty payments to artists and for copyrighted material; I’ll stick to the basics. First and foremost, royalties only get paid out IF someone pays. If nothing is being paid, there are no royalties to be paid. If money is exchanged either on a per download, monthly or yearly basis (subscriptions), royalty calculations are extremely complex. Although there are some standards, everything is negotiable. The answer here is simple; get a lawyer who knows this area.
The only other issue to consider is that podcasts are “housed” on websites and in this case, the orchestra’s website. If the website is commercial in nature, royalties must be paid even if the download is free. Take the case of YouTube. If Joe Citizen posts a video on YouTube and by chance a Madonna tune is heard faintly out of a passing car on that video, YouTube is responsible for paying all the related royalties because YouTube is a commercial site in that it sells advertising space and makes money. Personally, I think considering most local and regional orchestra sites “commercial” is splitting hairs. Sure, the site sells tickets and maybe advertising space but come on… and any player that wants to split hairs on this issue can have a discussion with me about the union “work dues” that gets taken out of our check. You know, that dollar or two that gets taken out of my check and kicked back to the local union that doesn’t even negotiate our contract and is paid by every player whether they are union members or not. Did I say kicked back? Hey, I am a union member and very pro union but… don’t get me started. I digress…
In the end, it is up to the players to decide if they want payment for recorded material that is intended for promotional use. Since I happen to be a member of the orchestra that is the subject here, I intend to tell the players committee to let it slide. Think about it; we are employed by the Board, no one wants to get ripped off and everyone wants a financially stable orchestra so we can keep playing. Isn’t it in the best interest of the players to allow the Board all possible means of advertising within reasonable parameters? Kudos to this Board for stepping into the 21st century.