The Dramatists Guild of America has been actively working to advance the rights of theatre writers by advocating for changes to federal laws that currently limit the ability of creative professionals to collectively bargain for equitable compensation, including fair wages, pensions, and access to healthcare.
REDEFINING CREATIVE PROFESSIONALS:
The National Labor Relations Act (the “NLRA”) is the federal law established in 1935 to protect the rights of “employees” to collective bargaining and provides other protections from unfair labor practices. Theatre writers, however, have been the victims of outdated and dubious caselaw over the years that has defined them as “independent contractors,” not employees, and thus not protected under the NLRA. Furthermore, federal anti-trust laws hold that groups acting in concert to set minimum prices may be colluding and creating an illegal trust. Unions are exempt from these anti-trust laws, but independent contractors acting in concert may not be.
And yet, this antiquated distinction between employees and independent contractors is a legal fiction, based on the premise that employees need labor laws to give them the bargaining leverage to protect themselves. According to this view, “independent contractors” are all small businesses, operating on an equal footing with the purchasers of their services, and they should be regulated to prevent them from becoming monopolies, like the government regulates oil companies. This perception of work in America, born in the wake of the era of robber barons and the growth of unionized labor, means that workers who get a W2 each year have more rights than a worker who gets a 1099.
Such an outdated perspective does not recognize the economic reality that most gig workers, including creative professionals, face; their fees are being determined by “Monopsonies” (a market controlled by one or a few buyers who keep their purchase prices low, as compared to a Monopoly, which is controlled by one or a few sellers who keep their sales prices high). This misperception of the bargaining power of independent contractors is amplified by the continuous conglomeration of companies who traffic in “content,” as well as the development of AI, and has rendered this unfair treatment of creative workers (which had little basis to begin with) to be so absurd as to be comical… if it didn’t have such dire consequences.
Conditions are even worse in the theatre industry, specifically, where writers are treated unfavorably compared to directors, choreographers, and designers, all of whom have obtained union status even though they could be viewed as independent contractors, too, and some of whom also create copyrightable work to which they retain their ownership.
The Guild has taken various measures over the years to re-establish the right to collective bargaining while retaining the rights of theatre writers to own their copyrights. The Guild is currently part of a coalition of creative professionals, called Creators Together, who co-filed a request with the Federal Trade Commission and the Department of Justice for collective bargaining rights on behalf of creators of copyrighted works everywhere. This past spring, we also co-signed a letter to the United States Congress, seeking legislative amendments to labor and antitrust laws.
The Guild has supported the following legislative approaches to get collective bargaining rights for theatre writers:
• An exemption from anti-trust laws for freelance creative professionals akin to those afforded to labor unions;
• An amendment to the labor laws that will establish a new category of worker: “professional creators” (including playwrights, composers, lyricists, and librettists) who would have the same rights as employees under the NLRA while also allowing them to retain ownership of their copyrights;
• An amendment to The PRO Act to clarify its language to ensure that all freelance writers and authors are covered, and will not be designated as employees for other purposes and under other laws, so that they retain their copyrights.
THE PRO ACT
The PRO Act was the most comprehensive and important labor bill in decades. It passed by the House of Representatives in March 2021, but is currently stalled. Under the PRO Act, theatre writers would retain ownership of their copyrights and could protect their work and working conditions by:
• Negotiating collectively, along with their fellow playwrights, composers, lyricists, and librettists for minimum wages, pensions, and healthcare;
• Striking to fight for fair contracts;
• Placing those employers engaged in unfair labor practices on a Do Not Work List;
• Sharing information regarding pay equity;
• Reporting incidents of sexual harassment without fear of retaliation.
Browse the Advocacy section, found under the Mission tab on our website, to learn more about our legislative work protecting the rights of creative professionals and discover how you can help support these vital initiatives to help empower theatre writers nationwide.
Draft Amendment to the NLRA to Allow Freelance Creators to Collectively Bargain
