In ‘Lab’ Strike Against B’way, Is Actors’ Equity Overreaching?

Writers disrespected...non-union actors bullied...Broadway pros offer a sharp critique.

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In the original production of "A Chorus Line," the performers contributed materially to the show's development through a workshop process. Initially they sold their personal stories, which fueled the musical's narrative, for $1. Later they received more. Does every show created via Lab" owe every actor a profit share? Photo: "A Chorus Line" at the London Palladium. Photo: Manuel Harlan.

Actors’ Equity Association (AEA), the nation’s largest union for theater actors and stage managers, authorized a strike recently against the Broadway League, the trade association for commercial theater in NYC and beyond. The dispute largely concerns the Developmental Lab Agreement that is often used to workshop new musicals, plus other contracts and guidelines (“Workshop Agreement,” “Staged Reading”) used by League producers to try out new material. AEA members are now barred from working for League producers who want to hire them under any of these agreements. AEA’s famous “Do Not Work” list displays the names of these producers.

AEA accurately argues that Lab Agreement wages have not risen since 2007. But it’s the union’s negotiating stance beyond wages that has many industry professionals increasingly uneasy. AEA asserts that actors working under a Lab Agreement must also be entitled to a percentage of the profits if, say, a show that is workshopped under that agreement arrives on Broadway and becomes a hit. The union’s position is based on a subjective assumption: each and every actor, merely by having a pulse and walking into the rehearsal room, will endow the show with such indispensable value as to make a profit share an inherently fair request.

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With this strike — and a rollout of PR tactics that range from the benign to the alarming — AEA and Executive Director Mary McColl are playing for real stakes. If AEA can successfully persuade anyone — writers and directors, producers and investors, the public — that all actors contribute crucially every single time to the final version of every single hit that is cultivated through a Lab Agreement, the union will potentially generate a windfall for its members, not to mention its own coffers. But here’s the question: What exactly does an actor contribute to a show when material is simply being tested out? And in general, who owns and ought to profit from the artistic contributions to a show? And who gets to decide?

Last week, across my social media feeds (Facebook, Twitter, LinkedIn), I observed a rising concern with AEA’s approach to their strike. Certainly the wage issue is a no-brainer. Even if you haven’t the faintest idea how Broadway shows are created and really couldn’t care a whit, you can still imagine that if you have a group of workers whose wages haven’t risen in 11 of 12 years, the time to fix that is now. Right now.

But the many people who agree with that assessment are astonished by the lack of public acknowledgement by AEA and McColl that if a show does indeed become a hit, perhaps the writers of the show, perhaps the director, might possibly have had something to do with it as well — perhaps more than just “something.” AEA and McColl would have every person, from industry insider to red-faced rube, think that it’s actors — only actors — whose work under a Lab Agreement catapulted the show from flop to Hamilton. Yes, there are times in which an actor’s dramaturgical contributions enhance and elevate a show; A Chorus Line is the best-known example. And unfortunately it did take legal maneuvers for the performers who directly helped to create A Chorus Line to receive something beyond a single dollar for their efforts. But to argue that each and every actor contributes crucially and materially to each and every show developed under a Lab Agreement is absurd.

McColl knows perfectly well what writers — and directors and designers and others — do. She also knows what producers do: she served as the Broadway League’s Director of Labor Relations from 2008 to 2010, well within the timeframe in which the Lab Agreement was being promulgated throughout the industry. In a 2010 interview with my former employer, the trade publication Backstage, McColl acknowledged that her League work would “inform” her work at AEA.

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But it’s not in McColl’s interest, it seems, to respectfully acknowledge any stakeholders in the creative process other actors, even if it’s wholly contrary to the collaborative spirit of theater making. As I started to engage with some of the industry professionals whose comments were flowing through my social media feeds, one person — a member of AEA and also a writer — made a stinging observation. McColl is a) pandering to her base; b) saying, in effect, “Screw writers! I’m fighting for actors!”; and c) demonstrating not only a willingness to strike but to take down the entire industry. If you monitor the news at all, you might find this a familiar scenario.

DG
The rather ironic logo of the Dramatists Guild.

Some labor unions are publicly supporting (or not publicly opposing) AEA’s strike. But here’s one organization offering “no comment“: the Dramatists Guild (DG). It happens to represent the legal, professional and fiduciary interests of playwrights and librettists, and composers and lyricists. This is also the group from which the share in profits will likely come, should AEA’s strike prove successful. Let’s at least give AEA and McColl credit for stabbing DG members in the front.

Four industry professionals agreed to provide CFR, under condition of anonymity, thoughts on AEA’s strike. One is a character actor and AEA member currently in a Broadway hit. One is a director who has worked regionally and in NYC, and has had contractual arrangements with AEA. One is an AEA actor who writes and directs and served as an artistic director in NYC. One writes musicals and belongs to the DG. Their words run at the end of this article.

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Unlike the ongoing political disagreement in Washington, DC, where one Russian asset malignant narcissist cares only for winning and losing and is willing to hold 800,000 US citizens hostage in his maniacal quest to prove the victor, I would stress one more time that AEA has a legitimate beef. But it must also be stated that producers do assume the largest financial risk of any stakeholder in a show. It was, after all, the late playwright Robert Anderson who said:

You can make a killing in the theatre, but not a living.

This is not to propose a pity-party for producers, who can enjoy monumental windfalls. At the same time, these people do front $5 million or $15 million or $25 million or more to put on a show, and it’s a standard rule-of-thumb that only 20% of shows ever turn a profit. If there’s a less expensive way for a producer to create the next Broadway juggernaut, you can bet your bottom dollar they’ll find it. So would you.

So when AEA claims that a Lab Agreement has been used “75 times since 2016” and that 51% of all shows developed under the agreement have gone on to further mountings, it seems fair to demand that the Broadway League step up. When AEA declares it has spent “nearly two years trying to negotiate a replacement for the Lab Agreement” I can imagine their loss of patience.

Here’s an official statement from AEA President Kate Shindle:

It’s unconscionable that Equity members who go to work developing some of the biggest hits on Broadway have gone more than a decade without a raise, especially when we regularly read about many of those same shows smashing box office records and generating billions of dollars in revenue.

But some of AEA’s tactics are little more than noisy and annoying PR stunts. One tactic is a digital ad war targeting ticket buyers:

…Users who click the ads will be taken to a landing page where they can sign a petition in support of Equity’s campaign for a new Lab Agreement.

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AEA members Erika Henningsen and Josh Daniel talk to Broadway ticket buyers about the strike. Photo: Actors’ Equity.

Of the millions of Broadway ticket-buyers, some will surely be motivated by AEA’s ads. Shindle’s rhetoric in fact trades on America living with the worst gap between rich and poor in its history — the very same gap that bequeathed us Trump. Some of those millions of ticket-buyers couldn’t care less. Still others, following a search online, might discover that the unemployment rate for AEA members stood at 90% not too long ago. In its own annual report for a recent year, even the union itself had to concede that its employment rate is anemic. When 18,000 out of 50,000-odd members ever worked in a given year, and worked, on average, just 16.4 weeks during that year, that’s more than just unimpressive. That’s a crisis. No wonder AEA is pushing this profit-sharing scheme: most of its members don’t work (much).

Last week, AEA unveiled a new tactic: “greeting” ticket buyers outside the TKTS booth at Duffy Square, beseeching them to wear #NotaLabRat buttons as they watch a Broadway show. But what really appalled my industry colleagues last week was what AEA did next.

The union has issued a grave, dire warning that all non-union actors and stage managers “will be prohibited from joining the union in the future if they agree to take work that is subject to Equity’s strike.” Explaining the little-understood process by which US actors join AEA would require more space than available here, but it’s widely acknowledged that many actors prefer not to join AEA until professional opportunities require them to do so.

Demanding that union members act in solidarity is a longstanding norm. What is unusual is AEA reaching beyond its actual constituency, assuming a legally questionable professional jurisdiction over workers who may or may not ever become, or wish to become, members:

‘When we launched our public fight for a replacement for the Lab Agreement, we focused on bringing Equity members together. Now we are expanding that campaign by taking it to more than 13,000 Equity Membership Candidates across the country,’ said Brandon Lorenz, National Communications Director for Actors’ Equity Association.

The actors and stage managers who are part of the Equity Membership Candidate (EMC) program were advised today that — following a vote of Equity’s National Council — non-members who take developmental work with the Broadway League during the strike will lose their eligibility to join Equity permanently.

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If any settlement is reached with the Broadway League that entitles every actor in every show developed through every Lab Agreement to a share of the profits, I sure pray that the Dramatists Guild will find its voice and challenge this in court. If AEA, however, could make transparent and explicit a more nuanced position — perhaps offering a metric or standard by which writers and directors and producers could fairly assess the material contribution of an actor — then it would have a much stronger case. This is about creating theater. The process deserves something more respectful than one-size-fits-all blunt-force trauma.

Final note. In the fake-news era, I understand the risk of publishing the words of not one but four anonymous sources. Ultimately, I concluded that it’s far better for the thoughts of artists to appear anonymously than for fear to prevent them from being expressed at all.

Anonymous 1

I support the movement generally, I signed a card (mostly because the minimums have been frozen for almost a decade), and there have been some abuses. But if AEA really wants to be a ‘national’ union, it should recall that outside NYC, the availability of union work is heavily dependent on our respectful co-working with our non-union fellow artists. They are our friends and colleagues and co-creators; and the kind of high-handed, tone-deaf warning recently issued is, to my mind, deplorable.

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Anonymous 2

I resent this recent action by Actors’ Equity Association in every way and from every perspective. In recent and even not-so-recent years, I have witnessed a serious attack on all theatrical output by the union. Since I’m a professional actress-playwright-director and artistic director with a very long history in the business, I have managed to find some ways around all these ridiculous restrictions on creating new work and, incidentally, on new future jobs for the theater. Now it has gone way beyond too far.

There once were developmental areas where we all benefited. It’s how I started my career and it has now become theater history. Great plays were created; great actors and directors and producers had a chance to make mistakes and genius advancements: all creative people involved contributed to the production. The purpose beneath it all was to carry an exciting experience to the audience. To nickel-and-dime who contributed what when AEA itself only allowed a $10 daily (if that) Showcase Code allowance so that union actors (forget the others) could be seen in order to get better jobs is outrageous, to say the least. Actors have always tried to rewrite — sometimes approved, sometimes not — to improve (?) a production. The Dramatists Guild stood by the final say of the writer, but that was manipulated as time went on by directors and producers and sometimes actors, who would simply refuse to allow the writers into rehearsals or even casting, and then would refuse to present the production otherwise.

There’s no longer a place to develop new work, and now compensation for (often uninvited) contributions are projected for developing new work, should AEA get what it wants. On top of that, for AEA to threaten future possible members is entirely unconstitutional. Another thing that grinds my gears is that the play development process has turned into a grand scheme — an investment of time and of money to create a final production if, indeed, there is a production at the end of it all.

I get notices all the time to submit to playwriting competitions and applications for residencies, generally accompanied by request for an application and/or a participation fee. There is rarely anything offered at the end if you are chosen. If there is something offered, it obviously comes from the application fees. There is no information about who is directing, acting, any producing credits or guaranteed audiences. You have to click and search even to find out where the production could take place! If you are invited to attend, it is for the final presentation, oftentimes far away from your place of residence, not for rehearsals. How many of your children would you send off like this, I wonder? And there is no offer of a Dramatists Guild contract of any sort, that would guarantee at least some points on which you might agree. It baffles me that playwrights submit their plays under such conditions. Is it for the exposure (no matter the outcome) to an audience and to participants with whom you have no acquaintance? How many of your children would you send off to strangers in a strange land? If anything, I believe that playwrights, and not actors, should be putting their feet down! And don’t even get me started on “devised” productions and colleges where they’re teaching that the playwright is irrelevant.

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Anonymous 3

While I completely cede Equity’s right to forbid current members to work on developmental labs until a new agreement is reached (I don’t know if I completely agree with the premise of their argument, but that’s not the point I’m making here), I find it the height of hubris and chutzpah to forbid non-AEA members from participating and threatening to bar them from future Equity membership if they do.

Equity members choose to be Equity. While many non-Equity actors would choose to be Equity if they could, there are a few out there who choose not to be or simply don’t think it’s the right time for them to be. (I had two opportunities to join AEA and didn’t for disparate reasons at the time, though I was a member of SDC for a long time.)

All union actors did non-union work before they became union. All worked in environments, venues or at companies that AEA deemed ineligible, or else they would have been at an Equity house. To judge a potential future union member based on the paying non-union work they did before they decided or had the opportunity to become a member is ridiculous and I don’t think it’s out of the realm of reason to question its legality.

Ultimately, joining a union is a choice and it’s a gift to the union. Unions maintain their importance by protecting and expanding their membership. Threatening people who are scratching at the door and dying to get that card just because they dared to take good-paying work doing what they love when they are not current members is unprofessional, cruel, and not doing their current or future membership any damned good at all. Bad form, AEA. Bad form.

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Anonymous 4

Recently, many of my actor friends (is that like saying my gay friends? can’t we all just be friend friends?) have entered into a worthy strike led by their union, Actors’ Equity Association, to raise their pay for developmental “Labs” for productions, and to ensure a percentage participation in any future earnings that come from the specific work of that lab. I don’t want you to know who I am because I have used the Lab Agreement and want to work again in this town one day. So, you can decide at this point whether you want to read on. I’m addressing this letter to several different constituencies.

Dear Actors Equity,

You were the ones who agreed to creating the Lab Agreement when producers slickly got rid of the Workshop Contract. Now you want to punish others for your decision? Don’t get me wrong: I am a very strong believer in providing a percentage of ownership to anyone involved with a show whose contribution impacts the art so greatly that the show would not exist otherwise. A Chorus Line is the age-old example of this. We know, historically, that the Workshop Contract was created as a result of that development. Over the years since A Chorus Line, producers have had few options for development that didn’t include prohibitive costs for salaries, pension and health and that percentage of ownership — all outlined in the Workshop Contract. So eventually, as I understand it, the Lab Agreement was created – to lower costs for the producer; to help evolve in a less encumbered fashion. (I plead innocent if my facts are slightly off from the specifics. I’m only repeating back the facts as I have experienced them).

Now it appears — as one could have predicted in the first place — that maybe producers are taking advantage of the Lab Agreement and using it in place of the Workshop Contract. Trust me, if it was your money on the line, and you had the option, you would do the same. This is what I will call the Trump argument: you take the loophole that’s good for business. Have you seen how much it costs to pay the guy to raise the curtain on your show even though there is no curtain in the set design?

Dear Dramatists Guild,

Where are you in this discussion? “No comment”? Give me a break! You have always shouted that the playwright is King! (Or Queen! Or They!) Your silence is deafening. Let me give you all a quick illustration from the front lines. A playwright friend of mine who shall remain nameless like me — but he’s a big, huge Broadway writer — has a musical in tech on Broadway. The lead producer enters and says — and be prepared, because you can’t make this shit up –“I had a dream last night that [absurd idea], so I would like you to change the scene in Act Two to [fulfillment of absurd idea].” When my friend balked — and he did, diplomatically at first, then loudly — the producer said, “Make the change or I’ll make it.” I don’t think my friend was terribly disappointed when The New York Times didn’t give the musical a rave review. He just wanted out of that mess. He is a member of the Dramatists Guild and there was nothing, not one thing, that he or they could do about this situation. They are in tech; there is big money on the line, hundreds of jobs; and this producer was not going to waver. So who is King (Or Queen! Or They!) there? Same thing with this Lab agreement. Your silence only reinforces that whatever Equity decides, the playwright will have to agree to.

Let me tell you what I do not want to agree to.

I have many friend friends who are also very talented performers. They have participated in these Lab agreements, and did so because they needed their required weeks for health insurance. That is their first concern. Sure, they want the weekly check, and they hope their association with the show will continue as it develops, and they want to work. All of that is true and noble. But mostly they want the health insurance. They also know the truth: they will most likely get replaced by [insert Hugh Jackman or Female or They Equivalent] when the show goes to Broadway. So, these people are OK with giving their passion and commitment for the length of the Lab and then being done with it. Most of the actors I know understand that participating in the development of a new musical means giving a bit more than an accurate line reading. It requires a superhuman focus on what is best for the material and doing everything possible to serve that material. That’s what people call “doing their job.” The way I see this whole Lab argument going, soon a percentage of our show will go to actors taking part in staged readings!

If I haven’t made it explicitly clear yet, I strongly support providing the 1% to the actors who participate in the development of a show. But this should only go to the actors who are chosen to proceed with the future development of the show and agree to go with it, or the actors who are asked to proceed but cannot do so for whatever reason. Actors’ Equity does not seem able to acknowledge the nuance of this situation and provide a reasonable solution. Why should I, as a writer, give up a percentage of my show to an actor who we hired because we couldn’t get anyone else based on the pay?

Here’s the ugly truth, Dramatists Guild, and maybe you can find a way to express this to our colleagues at Actors’ Equity: not all actors are created equal. These lower paying contracts really bear that out. It forces producers to hire talent who’d otherwise never proceed with the show.

Dear My Non-Equity Friends,

I’m sorry. I’m sorry in the same way that I apologize to my European friends for the Trump administration, I apologize to you. There is nothing but insanity in this threat of your future livelihood. It’s the equivalent of shutting down the government until the wall is built. Threatening you makes no sense. I understand the warring tactic: deplete the talent pool available to producers. But I refer you back to my previous paragraph. The ugly truth is that there’s less-then-stellar talent in AEA and now you’re going to pay the price for that.

Dear Reader,

I’m not sure there’s going to be any winner here. Clearly, though, the playwright is going to lose — again! I’ve spoken my piece. End of play. [Bring down the non-existent curtain. The producer paid for it!]