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To Pay or Not to Pay: That is the Question: Local Performers and the Shadow Economy

Should musicians be willing to work for free?

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A fairly robust online conversation regarding local music venue The Shredder broke out May 5, 2012.

"We are starting an official boycott of The Shredder," Bruce DeVino Jr., drummer in local band Killing for Peace, posted on Facebook. "The last thing Boise needs is another bar that refuses to pay local bands and charges local bands full price for a beer. ... Who's with us? Let's shut him down."

DeVino then wrote that he was in the process of starting his own rival venue, one that not only would compensate all performers, but also offer assistance loading gear.

The ensuing conversation ran to nearly 100 comments and included several ethnic slurs. But despite his personally motivated gripe, DeVino raised a consistent and relevant question venues face when booking performers: to pay or not to pay?

Survey says: We're broke

An online survey by Boise Weekly of 40 local musicians and comedians found that 90 percent of them performed weekly or monthly, but only 30 percent of them were paid consistently. Another 17.5 percent reported being paid "most times," and 52.5 percent reported being paid only "sometimes" or "rarely."

BW's survey also found that the average amount performers earn from a gig is $81.58. That may not sound so bad for what might be seen as an hour of work, but that one hour of stage time can require several hours of equipment loading time, thousands of dollars in equipment costs and hundreds of hours of practice time.

Then it needs to be split among the number of performers on the bill, and often only after paying out whoever is working sound. Then there is the possibility of a radius clause in performance contracts stating a performer cannot book other gigs within certain time frames or geographical distances.

The bigger the gig, the bigger the clause. Though they generally pay better, for large-scale festivals, performers can find themselves banned from stages across multiple states for months.

Performers used to be able to make up the difference selling merchandise but as digital media has decimated record companies, so has it decimated the ability of independent acts to get by on the pay they receive for performances.

The average is also heavily skewed by the few performers who pull decent pay.

More than two-thirds of respondents to BW's survey said they are paid less than $50 for a performance, with 35 percent reporting less than $25 per performance. Only 9 percent reported making more than $200 at a gig.

And it isn't just a local issue. Amanda Palmer, singer for Boston band The Dresden Dolls, ran head on into the controversy after placing an ad on her website searching for musicians to play in an orchestra at various tour stops. The catch: Artists had to be willing to be paid in beer, hugs and high fives.

When the ad received heavy criticism, she wrote a roughly 3,000-word blog post in her own defense. She detailed her financial history as a musician, including free shows on beaches, richly rewarding performances in symphony halls and how much money her band lost on tour opening for Nine Inch Nails.

"Good lord, were we grateful to lose that money," she wrote. "It won us a huge bunch of fans."

Palmer discussed paying her opening acts by passing a hat, paying David Byrne of Talking Heads with beer--though she didn't even know if he drank--and once rehearsing and performing a guest spot gratis with the band opening for her at a college show.

"You don't have to play for free," she wrote, "but I hope you won't criticize me for wanting to." Palmer then discussed how every member of her band is paid differently, and how in larger markets, there wasn't a supply of orchestra musicians who could fill the bill without payment. That's why some would be paid high fives instead of fivers.

She also pointed out how her tour opener was being paid to open, but not for the slots they were filling in the orchestra, and how they were traveling in her tour bus so as to avoid having to follow in a van and so on and so on.

"Does the math all work out?" she wrote. "Who knows. But we're all happy with the situation."

More than just a way to stretch a tour budget, Palmer envisioned it as a fun way to involve her audience more in her music, an idea she further fleshed out in a TED Talk called, "The Art of Asking."

"It's sometimes messy, sometimes not. Sometimes slightly risky and therefore, in my opinion, fun," Palmer wrote.

After the incident was written about in everything from Spin to The New York Times, the Pitchfork-reading masses gathered at her gates. Palmer eventually backed down, made agreements to pay the musicians and pulled down her blog post. But Palmer's management of a PR crisis didn't change the underlying facts: Even at the highest levels, musicians and performers work in an industry in which there is no shortage of money being made, but there are few guarantees they will see any of it.

Were other laborers in clubs such as servers and bartenders paid so randomly, the outrage might run red in the streets. But the underlying Bohemian ethos of working musicians keeps much of it in check.

And then there is the spurious allegation of "sellout" thrown at a performer who dares to sign a record or management contract.

A panel at this year's SXSW conference on constructive and disruptive technology in the music industry addressed that ethos fairly directly.

"There's a stigma musicians have about being on top of their shit," said panelist Brooke Parrott, a musician and artist ambassador for touring website SongKick.com. She felt that stigma was holding back musicians' ability to take control of their careers from an industry that has historically exploited them.

The panels' moderator, Jim Carroll, a journalist for the Irish Times, agreed.

"That thing about not being a suit," he said. "You have to get over that."

Shadow Economy

Scraping by gig to gig--often ending up with nothing to show for it--is not ideal, but it's all kosher from a legal perspective.

Grant Burgoyne, employment attorney, Boise Democratic representative in the Idaho Legislature and amateur guitarist, said that--to massively simplify complex labor laws--pretty much the moment a performer brands him or herself with something like a website or a Facebook page, he or she is considered an independent contractor, not a standard employee.

That means clubs can offer as much or as little as they like and performers can take it or leave it--and it is all perfectly legal. If the amount agreed upon happens to be a pittance, or the numbers don't work out quite as planned. There isn't much a lawyer or courts can or will do about it.

"There are certain things about the law that are impractical to enforce," Burgoyne told Boise Weekly.

Many lawyers aren't likely to take on cases in which less than $3,000 is in dispute and the constant crossing of state lines that is part of working as a performer means the law and those practicing it differ from place to place.

Though performers are paid in as many ways as there are types of club owners and acts, one thing remains consistent: They're mostly outside the traditional employer-employee model of bookkeeping.

The result is what economists refer to as a shadow economy, a largely unregulated industry whose employers and laborers' adherence to tax and labor law is as solid as Swiss cheese. Some do, some don't. Either way, it's less than ideal.

Strange as it may sound, being an independent contractor is actually better for performers than being a time-card puncher.

Burgoyne told BW that hiring artists as employees not only involves enough paperwork to discourage most clubs from ever having live performances, but performers would only be guaranteed minimum wage for the time they're on stage. If they hit 40 hours a week, then they could be eligible for health care and overtime, but performance jobs like that are about as common as sasquatches.

"I don't think it's unfair or exploitative for people to give away their services to give it a try," Burgoyne said. "I'm also not trying to make it as a guitarist," he added.

Burgoyne compared it to the old adage that the best way to get a job is to volunteer. But he also made his feelings explicit.

"If there's a cover charge, it's sure going to raise my alarm if the performer isn't getting paid. Performers deserve to be paid. Especially when the people hiring are making money off their services."

In many larger markets, clubs actually go one step further and reverse the process altogether, making performers pay for stage time through stage rental fees or "pay to play," pre-sale ticket schemes. In that respect, Boise performers can be better off than those in larger markets.

Many performers turn to busking--street performing for tips--to make money. However, the patchwork of regulations on everything from amplified sound to the legality of putting out a hat--some cities consider this panhandling--can make busking as much a challenge as performing in a venue.

The most common forms of payment reported in BW's survey were flat fees, cuts of the door and percentages of bar sales.

Asked if they thought there was a better system, local performers gave BW a range of answers, from improved labor laws to promoters working harder to promote shows rather than relying on performers to do all the work. One respondent simply said "socialism." It's not as glib as it sounds. Some Scandinavian countries provide large cash subsidies to performers and venues, making it one of the most lucrative places to be a performer and an affordable place to be a music fan.

"I think the door take and percentage of bar sales should both be tabulated and the performer should get whichever total is higher," one survey respondent wrote.

"I'd just be happy to get health insurance," wrote another.

But some also thought things were fine as they stand.

"Every artist has the opportunity to negotiate fair compensation and can reject or accept every offer," reported yet another survey taker.

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