Writers strikes are not uncommon in Hollywood: Viewers old enough to remember repeats should recall the 2007-2008 Writers Guild of America (WGA) shutdown. But when WGA went on strike on May 2, 2023, it joined a rising tide of developments in the recent American labor movement. For the past three years, a surge of private sector labor organizing campaigns have invigorated conversations about work in the U.S., including within arts and culture organizations. Everyone from Bob Odenkirk to Jennifer Coolidge has lent their solidarity to the more than 11,000 striking writers currently fighting for fairer wages and working conditions from the studios—these shows of support are hardly controversial.
For their colleagues across the aisle in music, actions like the writers strike would be all but impossible to execute. In many cases, it would be illegal. “It’s something we need to work toward,” says Joey La Neve DeFrancesco, a New York-based musician and organizer with the United Musicians and Allied Workers (UMAW). “But unlike the WGA, musicians for a variety of reasons are simply not in the same level of organization right now. That’s the fundamental barrier.”
Solidarity unions, non-profits, and musicians’ organizations are trying to reverse this trend and bring music industry workers to the same level of coordination and power as seen in film and television labor unions. But to do it, they’ll need to face a complicated web of political and legal decisions, including an American labor ruling from 1984 that has slowed the course of music organizing for the past 40 years.
As he’s watched the WGA strike unfold, DeFrancesco has been reminded of another action carried out by creatives nearly 80 years ago. From 1942 to 1944, more than 100,000 musicians with the American Federation of Musicians (AFM) went on strike. Like WGA members, these artists were fighting for a fair cut against concentrated wealth, demanding that the surplus profits created by new technology like vinyl records be distributed to musicians, not just record executives. AFM members—including Duke Ellington—refused to make records, grinding the industry to a halt. After more than two years, the union won. Record labels had to pay a percentage of record sales into a trust fund for musicians, which for years was the largest buyer of music in the world.
But by the early 1980s, labor wins achieved through the first half of the 20th century were under threat from the anti-union Reagan administration. After a prolonged and costly strike scattered a previous music workers’ union, a group of composers and lyricists, who were then not part of performing musicians’ unions, petitioned the WGA to join their ranks. Fearful of drawing unwanted attention, the WGA declined, and the Society of Composers and Lyricists (SCL) was founded in 1983 with the goal of achieving independent union status.
They took their case to the National Labor Relations Board (NLRB) the next year. After a week of hearings in October 1984, the NLRB ruled that composers and lyricists were independent contractors, not employees, and therefore weren’t legally entitled to organize a union. Songwriters fumed at what they saw as a blatant attempt to crush their organizing ability. “Studios are able to, and choose to, talk out of both sides of their mouths,” said composer and SCL member David Raksin. “When they want to control our rights, then we’re employees. When they want to make sure we can’t band together, they call us independent contractors.” Both an appeal the following year and a bid in 1993 to revive the union question were unsuccessful.
In today’s music industry, the distinctions between songwriter and musician are even blurrier than they were in the 1980s. Independent contractors are excluded from the protections offered by the National Labor Relations Act (NLRA) of 1935. Labor lawyer Leo Gertner explains that the independent contractor classification was carved out in the 1947 Taft-Hartley amendments to the NLRA, which also banned solidarity and wildcat strikes and passed right-to-work laws. “A lot of this stuff is just anachronistic,” says Gertner. “In the modern economy, and especially in industries like music where technology has played a huge role in atomizing the workers and allowing people to do little pieces of work and then get paid very little, I think the law has lost sight of that.”
Guitarist Marc Ribot, who has been an AFM member since 1977, notes that it’s not just workers that have been atomized. When the AFM won in the 1940s, they negotiated contracts with major labels guaranteeing fair pay for all member musicians that are still in place today, protecting recording artists on those labels. But for decades, those companies have been outsourcing production and working relationships to smaller indie labels, which aren’t subject to union contract terms. Another Taft-Hartley piece, which prevents workers from taking organized action against anyone but their immediate employer, insulates the wealthiest labels from financial responsibility. “You can’t go after the money anymore,” says Ribot.
Phillip Golub, a jazz musician and member of the Music Workers Alliance, founded in 2019, agrees. “Ford, GM, and Chrysler figured out that if they bought their parts from a third-party parts manufacturer that was a small company, then they wouldn’t have to deal with the union in their shop,” says Golub. “The major labels did the same exact thing.”
Most musicians today would likely be classified, like the songwriters, as independent contractors. That weakens their organizational power under the NLRA, but because antitrust laws consider organized rate demands from independent contractors to be price-fixing, it also means that any coordinated action targeted at better pay could invite a lawsuit. After music trade groups tried to warn musicians about unfair contracts from Sirius XM in 2011, the radio giant sued the groups on antitrust grounds, alleging that they were interfering with free market competition.
Kevin Erickson, director of the Future of Music Coalition, says that this interpretation of antitrust means that even though many musicians own the copyright to their music, they can’t organize against Spotify since they don’t have an articulated working relationship with the company. “If these musicians worked together to collectively bargain with Spotify or threatened to pull their music to push for better rates, they would risk being sued as an illegal cartel,” says Erickson.
Even in instances where musicians are classified as employees, Golub points to a Reagan-era court ruling that decided that band leaders, not venues, are considered the employers. Golub says this has effectively made it impossible to organize at gigs or recording studios. “[In a lot of bands] you’re talking about five people who work for a friend,” he says. “You’re not going to create a union of five people against your friend.”
While some arts unions like SAG-AFTRA have taken a big-tent approach that has welcomed and addressed the concerns of everyone from A-listers to extras, music organizers say musicians’ unions have failed to incorporate the vast majority of new music workers. DeFrancesco says this retreat into “narrower guild unionism” has supported working conditions for the union musicians who have a single employer, like an orchestra. “But when you have musicians like my band [Downtown Boys], you have four different record labels, each venue you play is technically a different employer,” says DeFrancesco. “Given current labor law, it’s difficult to organize—but not impossible.”
Erickson says there are a few policy prescriptions that could help the situation. One of them is the Protect Working Musicians Act, a bill introduced in 2021 that would create “an explicit, narrowly targeted exemption in antitrust law” to allow for musicians to collectively negotiate with massive music streaming services. The bill is aimed at updating antitrust “to align with workers rather than targeting workers,” says Erickson. But aside from a Democrat co-sponsoring the bill in April 2022, it hasn’t progressed.
At the same time, the confusing web of legal and political frameworks at play indicates that there’s no single catch-all fix. “We have to simultaneously push for changes to copyright law, antitrust law, and potentially labor law, and also work to build up social safety nets,” adds Erickson.
While the WGA’s mobilization isn’t yet attainable for independent music workers, it’s still instructive and motivating. “I think a lot of us as musicians are looking to the WGA fight as really kind of an example of what we can do and what needs to be done,” says DeFrancesco. “We need to organize and fight these companies to share the profits created by these technologies rather than allowing these giant companies to get it all.”
Even without legal and policy fixes, organizers say the emergence of strong organizing groups like the Music Workers Alliance and UMAW suggest that musicians are ready to fight again. Years ago, Ribot opined that if unions don’t stop the siphoning of profits by tech and streaming companies, rank and file music workers would revolt, within or without the constraints of labor classifications. “That rank and file revolt,” says Ribot, “is happening right now.”
