Help Independent California Music Professionals Secure Exemption Under AB5

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Ari Herstand
Ari Herstand signed this petition

To the esteemed members of the California Assembly and Legislature:

AB5 will have a devastating and catastrophic impact on independent musicians, their livelihoods and the music industry in general in California. Musicians’ businesses operate in a substantially different way than many other types of industries, and the changes brought by AB5 are not sustainable with our business model.

Each year, a musician may be booked by numerous entities or individuals and may also contract numerous individuals. Musicians often wear different hats; as performers on their own and other musicians’ recordings and live performances, as session musicians, as instructors, as producers, as composers and songwriters, as bookers and as bandleaders.

For example, in a given week, a musician might:

  • Perform one live gig under their own name and two in other bands
  • Teach eight private lessons
  • Produce three songs for a client, involving booking a studio and session musicians
  • Record their own songs with other live musicians
  • Subcontract musicians and play at a wedding

In just that one week, the musician would be both employer and employee numerous times over in the AB5 model. This is exponentially true over the course of a year. Using the Uber and Lyft model that precipitated AB5, imagine there are thousands of different rideshare companies. A driver might work for multiple companies for only a few hours every year, and drive with multiple others a couple of hours each week or month. That same driver also owns a rideshare company that uses other drivers. This imagined scenario closely resembles musicians’ situations. Under AB5, independent musicians will be misclassified as employers/employees when they are in fact not and do not wish to be.

Most professional musicians in California do not have assistants, lawyers, agents or business managers. Most of us make a modest income in order to pursue our craft. The costs associated with AB5 would be crippling. Incorporating or becoming an LLC is prohibitively expensive, and payroll companies do not work with our business model. If one musician is contracted by another to perform on one song on a record, and the booking musician must go through a payroll company, they must pay fees for that one musician for the entire year. Multiplied by the amount of times one musician can contract other musicians throughout the year, the costs and logistics become overwhelming for an individual.

Most musicians in California are not celebrities. We are members of the working class. We have worked diligently to pursue our art, build up clients and nurture professional relationships so that we may continue to create and entertain. We work for and with each other on projects. There is no company or corporate structure. Our work is on a per-project basis and frequently the person booking us is a fellow musician. If a musician is contracted to play on one song on an album, they recognize that there is no promise of future employment. They cannot claim unemployment against their colleague that booked them.

Being a professional musician is, by definition, a freelance occupation. The term “gig” was coined in the 1920’s by jazz musicians. Musicians cannot stop freelancing and work at “Blank Music Company” since it doesn’t exist. Music organizations that do offer secure, full- time employment and benefits, such as symphony orchestras, are blindingly difficult to get into. First-call union session musicians in Los Angeles can enjoy an excellent living and benefits, but the lines for those recording sessions are long and few musicians will ever make the bulk of their living this way. Most of us piece together our living from numerous opportunities throughout the year, which we welcome and want to do.

We are, frankly, terrified of AB5 as it applies to us. The ABC test is so strict and the fines are so high that many entities will simply stop using California musicians altogether. Clubs will switch to recorded music rather than use payroll companies, composers will use sampled instruments rather than live players and much of our business will simply move to Nashville, New York or Atlanta. The Los Angeles jazz scene has, in the past several years, surpassed that of New York in terms of creativity and visibility, but it is not a money- making venture and is vulnerable in that respect. Jazz clubs, with their limited resources, could become so overburdened that they may be forced to close, which would be a great loss to the state of California, both economically, artistically and in terms of its newfound reputation as a hub for creative music.

We are aware that exemptions for musicians were discussed and ultimately negated by the AFM, but the AFM represents only a fraction of musicians in California and does not speak for the majority of us. Most independent musicians were not aware of the existence of AB5 or how it could impact them until after its passing, and most are still not. We appreciate your efforts to go after billion-dollar conglomerates such as Uber and Lyft, but the reality is that independent musicians are much closer to the drivers economically. Many of the individuals in the professions that were granted exemptions – doctors, lawyers and architects – make many times over the salaries of average working musicians. Why not grant independent musicians, who need it even more, the same exemption?

We are proud to call ourselves independent California musicians. We want to continue as independent contractors so that we may continue to pursue our craft in the best possible way for us. We would be grateful for an exemption that recognizes the unique nature of our field and allows us to continue to make the best music we possibly can.