Reimagining Federal Support for the Arts and Public Media
The nonprofit arts and public media enjoy broad, bipartisan public support because they power local economies in every state and make it possible for Americans of all means, geographies, and abilities to have access to high-quality artistic and educational content. Federal support through the National Endowment for the Arts (NEA), the National Endowment for the Humanities (NEH), and the Corporation for Public Broadcasting (CPB) has been essential to the sector’s success, and reimagining federal support will ensure its sustainable future.
Many members of our unions earn their living working on nonprofit productions and programs that receive funding from the NEA, NEH, and CPB. Even more employed now in the commercial sector established their careers through federally-supported work in the nonprofit cultural sector. We are committed to the nonprofit arts and public media because we know firsthand its economic and cultural power.
Informed by the experiences of our members, we believe that reimagining federal support for the arts and public media will require strengthening labor protections and, not only increasing NEA, NEH, and CPB funding, but also including a greater worker voice in grantmaking and modernizing grantmaking rules.
Federal funding for the arts, humanities, and public media must include strong labor protections
Taxpayer money should encourage high-road employment practices that raise industry standards and strengthen local economies. Strong, uniform labor protections and workplace safety requirements are central to ensuring that all people can pursue a career with fair pay and benefits. These requirements should protect all people employed on federally-supported cultural and news programming, and they must provide effective remedies to deter low-road business practices.
Necessary actions:
Strengthen the NEA/NEH prevailing wage requirement (20 U.S.C. §§ 954(m)) by providing for civil monetary penalties in cases when employers violate the law and allowing for a private right of action.
Modernize 29 C.F.R. Part 505 to reflect current industry employment practices and changes in union names.
Improve staffing requirements for CPB grantees in consultation with stakeholders, including public media professionals and their unions, to address stations’ unsustainable reliance on outsourcing and temporary employees.
Professionals working in the nonprofit arts and public media must have a voice in grantmaking
Union professionals contribute immensely to the quality, success, and bipartisan popularity of the nonprofit arts and public media, and they offer an important perspective on how federal arts funding can be used to greatest effect. Yet, too often, nonprofit arts employers, managers at CPB-funded stations, and producers of CPB-funded programming ask the members of our unions to do more for less, counting on their commitment to their employer and craft. Even then, these employers cut costs at the expense of our members and quality jobs. Omitting the workers who make nonprofit arts and media successful from the grantmaking process shuts out an essential voice; runs counter to the community-minded mission of publicly supported arts, humanities, and media; and erodes standards for all professionals in the sector.
Necessary action:
Prioritize seats for worker advocates on the National Council on the Arts, the National Council on the Humanities, and the CPB’s Board of Directors.
Federal grantmaking must be modernized to sustain employment in the nonprofit arts and public media
Sustainable careers in the nonprofit arts and public media requires that the employing organizations receive sufficient support to sustain their operations, not just productions or special projects. The current approach of smaller-dollar, project-specific federal grants does not provide the level of certainty and sustainability that employers need to support the infrastructure necessary to launch and maintain productions and thus employ our members across seasons. In public media, station funding formulas have shifted money away from the larger stations where union members work to smaller stations that have little potential for an employment impact. NEA, NEH, and CPB grants should take into account employment impact and be accompanied by strong labor protections that will help nonprofit institutions and public media stations maintain their roles as critical economic drivers for communities across the United States.
Necessary action:
Authorize larger-dollar general operating grants through the NEA, NEH, and CPB with a worker-centered approach to grantmaking.
For questions, please contact DPE Assistant to the President/Legislative Director Michael Wasser at mwasser@dpeaflcio.org
AEMI Letter in Support of the NO FAKES Act
August 26, 2024
Re: S. 4875, the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act
Dear Senator,
On behalf of the Arts, Entertainment, and Media Industries (AEMI) coalition within the Department for Professional Employees, AFL-CIO (DPE), I urge you to co-sponsor S. 4875, the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act. This bipartisan legislation would protect individuals, including AEMI union members, from unauthorized digital replicas of their voice and visual likenesses in audiovisual works and sound recordings.
By way of introduction, the AEMI coalition consists of 12 national unions that represent professionals in the arts, entertainment, and media industries. By virtue of its size and scope of coverage, the AEMI is the leading voice in the labor movement on public policy in the arts, entertainment, and media industries. The AEMI unions’ members help power a sector of the economy that regularly generates four percent of the United States’ gross domestic product (GDP), creates a positive trade balance, and employs more than five million people.
Artificial intelligence (AI), including generative artificial intelligence (GAI), is a double-edged sword that has the potential to empower and democratize storytelling and creation to an unprecedented degree. At the same time, AI poses a significant threat of abuse absent proper safeguards. Without smart policymaking and requisite safeguards, AI may upend the livelihoods of union creative professionals who rely more than ever on effective intellectual property rights to earn compensation and benefits and ensure future career opportunities in today’s digital era.
Federal protections against unauthorized digital replicas are a critically important intellectual property right for the members of AEMI unions who earn their livelihoods through their voices and likenesses. Most are everyday Americans who go to work using their lifetime of training in performances that connect with audiences and generate commercial success. Unauthorized AI-generated digital replicas of these individuals represent a theft of their voice and visual likenesses, denying them hard earned pay and threatening their future career opportunities.
Union creative professionals know too well the dangers and damages that will result if Congress fails to put a stop to the unauthorized use of digital replicas in audiovisual and sound recordings. AEMI unions’ members have already been subjected to image-based sexual abuse, misappropriation for commercial gain, and a proliferation of disinformation using public figures without their consent.
In closing, the AEMI is proud to join the broad coalition of supporters - including industry employers and tech companies - united in support of the NO FAKES Act. This commonsense, bipartisan legislation would establish vital safeguards for union professionals without stifling the ethical, human-centric use of AI.
If you have any questions, please contact me or DPE’s Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
DPE response to U.S. Department of Labor's Request For Information Regarding Modernization of Schedule A
May 13, 2024
Dear Administrator Pasternak,
On behalf of the 24 national unions in the Department for Professional Employees, AFL-CIO (DPE), I appreciate the opportunity to respond to the U.S. Department of Labor’s Request for Information (RFI) regarding “Labor Certification for Permanent Employment of Foreign Workers in the United States; Modernizing Schedule A To Include Consideration of Additional Occupations in Science, Technology, Engineering, and Mathematics (STEM) and Non-STEM Occupations” (RIN 1205-AC16).
The RFI is directly relevant to DPE’s affiliate unions, which represent over four million professional, technical, and other highly skilled workers. The members of DPE’s unions come from a diverse array of backgrounds, nationalities, and immigration experiences. Within our coalition are U.S. citizens, permanent residents, DACA and TPS beneficiaries, and people working on F, J, H, O, and P nonimmigrant visas. Members of DPE affiliate unions work in both STEM and non-STEM occupations in nearly every industry and sector.
DPE’s response is informed by its long-time advocacy for fundamental reforms to the U.S. immigration system to ensure enforceable workers’ rights and labor standards in any visa program affecting professionals. We oppose low-road immigration policies that benefit corporate interests by allowing differential treatment of workers as a source of cheap labor, and we support smart policies that ensure all working people can earn a fair return on their work. DPE’s guiding belief is that U.S. immigration policies must work for professionals, and not just employers.
Schedule A Should Not Be Expanded At A Moment of Great Disruption For Professionals
Instead of serving as a dynamic, accurate indicator of occupational shortages in the labor market, Schedule A Group I, in its current form, exists as a sclerotic tool useful only to employers who wish to bypass U.S. workers and avoid investing in training and sustainable working conditions for all professionals. Indeed, Schedule A’s existence largely correlates with a timespan when training for younger workers went from an average of two and half weeks per year in 1979 to most young workers reporting in 2011 that they received no on-the-job training in the previous five years.
Professional nurses provide a useful example. Schedule A Group I has listed professional nurses as a shortage occupation for over 30 years. However, the U.S. Department of Health and Human Services estimates no shortage of nurses, projecting a sufficient number of Registered Nurses nationwide to meet demand in 2030. To the degree professional nurses are leaving their jobs, it is due to poor working conditions. Conversations with nurses indicates that attention should be placed on improving unsafe staffing ratios and addressing workplace violence.
The experience of professional nurses as a Schedule A occupational designation also demonstrates a simple reality: no national labor shortage is permanent or indefinite. Like with all markets, supply and demand for professionals in various occupations and areas waxes and wanes over time, and employers, as participants in the labor market, should be expected to respond to these changes appropriately.
DPE is also concerned with the very timing of this RFI, which DOL issued in response to President Biden’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI). The executive order acknowledges AI’s potential to “displace and disempower workers,” and reports already indicate that more than 4,000 layoffs in professional occupations in the very short time window from May 2023 to date were due to AI.
Given the expected upheaval in the labor market for professional occupations, DPE believes that no professional occupation should be added to Schedule A until the impact of AI on the workforce is more fully understood, particularly as substantial layoffs in STEM industries persist. Instead, DOL should remove professional nurses from Schedule A in response to the evidence of an ample occupational supply.
True Labor Market Test Remains Best Way to Identify Real-Time Occupational Shortage
DPE believes that a true labor market test at the initial point of hire is the best way to identify a labor shortage in real time. Employers should be required to test the labor market at the earliest point of hire, whether that be when filing an initial I-129 petition to hire a nonimmigrant worker or filing an I-140 for someone based outside the United States. The labor market test should include mandatory, good-faith recruitment efforts, including digital job postings targeted at a national, diverse pool of both people presently in the workforce and people preparing to graduate from U.S. colleges and universities. Employers should also be required to share the job posting with relevant unions that have members working in their industry. Since DOL can assist employers with contacting unions, this important step should not be burdensome and, given unions’ close proximity to workers, may even help provide employers with a more cost-efficient recruitment process.
Should DOL decide to add occupations to Schedule A Group I, DPE recommends that DOL adopt a series of rigorous, relevant indicators that can provide the most precise, real-time signal of an actual labor shortage. Indicators must include rising wages, high retention rates, investment in training, and workforce diversity. Occupations with significant numbers of recent layoffs should not qualify for Schedule A. DOL must also consult with unions that have members working in relevant occupations and industries. Taken together, these indicators allow DOL to isolate evidence of an actual labor shortage, rather than symptoms of employers’ correctable recruitment and retention practices. In comparison, unemployment rates, whether considered in isolation or in comparison with the full national unemployment rate, should not alone be considered evidence of a labor shortage.
DOL must also ensure that these indicators are reviewed much more frequently than present practice. Otherwise occupational shortage designations will persist unnecessarily. The experience of professional nurses shows the harm to professionals when shortage designations are not revisited regularly.
DOL should not take the corporate lobby and industry-supported advocacy groups at their word when they claim occupational shortages. In recent years, DPE has watched too many employers claim they cannot find qualified workers only to layoff their employees, including members of our unions, and require them to train their foreign replacements as a condition for their severance. In 2022, for instance, the top 30 H-1B employers - mostly tech and IT outsourcing firms - hired 34,000 new H-1B workers, while laying off at least 85,000 workers in 2022 and the start of 2023.
The Need For Improved Tracking Of The Education To Workforce Pipeline
Underpinning any conversation on recruiting workers from abroad is the question of the supply of available, qualified professionals in the United States. DPE renews its call for improved tracking of the education to workforce pipeline because DOL must have the most accurate statistical picture possible.
DPE urges the Biden-Harris Administration to work with Congress to take concrete steps to improve STEM education and workforce research and data and to help workers, employers, and educators make informed decisions. Currently, national surveys by the Census Bureau (Community Population Survey) and Bureau of Labor Statistics (Occupational Employment Statistics Survey) are the basis for identifying education and occupation trends. The surveys provide valuable and suitable information for a variety of purposes, but the data produced does not effectively identify state, regional, and national trends for STEM education and the STEM workforce.
Unemployment Insurance (UI) wage records, which are filed on a quarterly basis by employers, provide a picture of industry employment and separations, hours worked, and wages. Unfortunately, UI records are currently a missed opportunity to capture accurate and dynamic occupational data. Done correctly, the inclusion of occupational data in UI wage records would give policymakers, education systems, and all stakeholders insight to national, regional, and local labor markets. Enhanced UI wage records could connect credentials and training to specific occupations and provide career mapping information over the course of changes and shifts to the economy. These records would also allow DOL to better identify the presence and absence of occupational shortages.
Following the recommendations of the U.S. Department of Labor’s Workforce Information Advisory Council, the Administration should commit the federal government to pursuing a phased-in, well-managed, and properly funded process for collecting and analyzing high-quality occupation data via states’ UI systems’ wage records. This policy commitment should be supported with increased funding for research and IT needs at the various state agencies performing education and workforce analysis. The benefit of overhauling and aligning UI records to provide occupational data should be articulated to the business community, education systems, and workers and students in the education-to-workforce pipeline and/or career transition.
DOL Must Ensure Worker Protections For Any Schedule A Occupations
DOL must ensure that professionals hired through a Schedule A occupational designation can feel confident that they will not face employer coercion or workplace abuse if they come to work in the United States. Further, employers who benefit from an exception to the normally-required labor market test must be held to a high-road standard.
The experiences of internationally-recruited nurses showcases the need for strong worker protections in the Schedule A program. These hard working professionals make a positive contribution everyday to the well being of America’s communities. Yet, in return they are regularly exposed to abusive recruitment and employment practices. Too many of the hundreds of thousands of nurses hired through Schedule A over the years were recruited with abusive contract provisions. To be hired with green cards, these nurses are forced to sign multiyear, one-sided contracts that use the threat of financial ruin to bind them to a single employer. Under these contracts, nurses who want to change jobs must pay high “breach” fees.
DPE believes the coercive practice of “breach fees” and non-compete clauses in employment contracts and the charging of recruitment fees and associated costs to workers must be prohibited. DOL should require that Schedule A employers provide the recruitment contract to any person offered employment before departure to the United States. In addition, workers hired for Schedule A occupations should, prior to departure, receive written information in their native languages on their rights under U.S. workplace laws and how to access these rights.
Continued Support for High-Road Immigration Policies That Empower Professionals
The Administration must also remain focused on high-road legislative approaches to international recruitment. DPE strongly urges support for the Keep STEM Talent Act, bipartisan legislation that enables talented graduates from U.S. colleges and universities to continue contributing to the American economy while ensuring that they can earn a fair return on their work. Under this legislation, international graduates who earn STEM advanced degrees from American universities are exempt from the annual green card caps so long as their employers receive approved labor certifications and pay them above the median wage level for the occupation and geographic area. The Keep STEM Talent Act offers in-demand graduates a direct path to permanence, rather than forcing them to accept precarious, temporary visas. This approach reinforces the professionalism of the STEM workforce and affords individuals agency in the labor market.
DPE’s commitment to a high-road immigration system is also why we advocate for policies that empower professionals, including a path to citizenship for recipients of TPS (Temporary Protected Status,) DACA (Deferred Action for Childhood Arrivals) and DED (Deferred Enforced Departure). DPE supports allowing professionals to self-petition for permanent status and providing labor market mobility to individuals with approved I-140s.
Conclusion
There are better approaches to recruiting and retaining the world’s talent than through expanding Schedule A occupational designations. However, should DOL decide to proceed with possible new Schedule A occupational designations, DPE urges a regular review of indicators that identify actual labor market needs. DPE also urges DOL to adopt guardrails that ensure all professionals, regardless of immigration status, can earn fair, family-supporting pay in an environment free from exploitation.
If you have any questions, please contact DPE Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
Letter to House Appropriations Subcommittee on Interior, Environment, and Related Agencies Leadership in Support of Increased Federal Arts Funding in FY25
April 30, 2024
Dear Chairman Simpson and Ranking Member Pingree,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I urge the Subcommittee to fund the National Endowment for the Arts (NEA) and the National Endowment for the Humanities (NEH) at no less than $211 million each in fiscal year (FY) 2025.
Many members of DPE’s affiliate unions in the arts, entertainment, and media industries earn their living working on NEA and NEH-supported productions, programs, and performances. Still more union creative professionals who are employed now in the commercial parts of these industries started their careers working in the nonprofit arts and public media.
Providing at least $211 million each for the NEA and NEH will ensure that the agencies can continue to support good-paying, family-supporting jobs in every state and congressional district for creative professionals, including the members of DPE’s unions. Through grants, seed money, and technical support, the two agencies help put people to work creating artistic and educational content that is available to Americans of all means, geographies, and abilities. NEA and NEH-funded programs help veterans heal from the invisible scars of war, inspire the next generation of creators and innovators, and unite people across small towns and big cities. Increasing the NEA and NEH annual funding level to at least $211 million in FY 2025 is also an important step toward a historical full funding level of $333 million, or $1 per capita.
Increased funding for the NEA and NEH is also good for local economies. Research shows that audiences spend an estimated $38.46 per person, per event, beyond the cost of admission, on an assortment of goods and services within the communities where they attend cultural events.
In addition, DPE believes the NEA and NEH are critical to advancing diversity, equity, inclusion, and accessibility in the arts, entertainment, and media industries. In February 2021, DPE and our affiliate unions in these industries released a “Policy Agenda for Advancing Diversity, Equity, and Inclusion in the Arts, Entertainment, and Media Industries,” which contains policy solutions aimed at creating diverse talent pipelines and developing an arts workforce that looks more like America. The NEA and NEH have a central role to play in this work.
In sum, the NEA and NEH are critical agencies for working people and local economies. Their work delivers a high return on investment and cannot be replaced by the private sector. I urge the Subcommittee to fund the NEA and NEH at no less than $211 million each.
If you have any questions, please contact me or DPE Assistant to the President/Legislative Director, Michael Wasser, at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
DPE's Response to the U.S. Copyright Office AI Study's Request for Information
October 30, 2023
Dear Ms. Perlmutter,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I write in response to the United States Copyright Office’s (USCO) August 30, 2023 notice of inquiry regarding the USCO’s study on artificial intelligence (AI). For the purposes of this filing, I am specifically discussing generative artificial intelligence (GAI) technologies. It is challenging to fully discuss all the ways in which these technologies will impact creative professionals.
By way of introduction, DPE is a coalition of 24 national unions, 12 of which are unions representing creative professionals working in the arts, entertainment, and media industries. These unions’ members work as actors, stagehands, craftspeople, choreographers, dancers, directors, directorial team members, editors, musicians, stunt performers, instrumentalists, writers, singers, stage managers, recording artists, broadcasters, audio engineers, cinematographers, and many other creative positions. They help power a sector of the economy that regularly generates four percent of the United States’ gross domestic product (GDP), creates a positive trade balance, and employs more than five million people.
DPE appreciates USCO’s efforts to examine the impact artificial intelligence has on the copyright framework and enforcement as well as its impact on creators’ rights and a changing business environment. This is an issue that directly impacts the members of DPE’s affiliate unions in the arts, entertainment, and media industries. While not typically the copyright holder, many of these middle-class creators earn collectively bargained pay and contributions to their health insurance and pension plans from the sales and licensing of the content they help create. In 2021, for instance, creative professionals represented by the American Federation of Musicians (AFM), Directors Guild of America (DGA), International Alliance of Theatrical Stage Employees (IATSE), Screen Actors Guild - American Federation of Television and Radio Artists (SAG-AFTRA), and Writers Guild of America, East (WGAE) received over $2.8 billion in residuals. In addition, union creative professionals’ future work opportunities depend on legitimate sales and licensing.
AI is a double-edged sword that is empowering and democratizing storytelling and creation to an unprecedented degree in history. It opens doors to new jobs and new markets to monetize creative works in a beneficial way. In addition, creative professionals are harnessing AI as a tool to increase efficiency and support their work. At the same time, AI poses a significant threat of abuse absent proper safeguards.
AI has the ability to upend the creative industries by disrupting employment opportunities, revenue streams, and an effective ecosystem that is shaped by personal services agreements, collective bargaining agreements, and licensing arrangements. Absent safeguards to ensure consent and compensation for the use of copyrighted works and individual intellectual property rights, and appropriate transparency of training sets, AI will be used as a sophisticated, deceptive tool for content theft, unauthorized digital replication of individual’s voices and likenesses, and cultural misappropriation. Developers will be incentivized to train their AI technologies on the creative works and the creative talents that the members of DPE’s affiliate unions develop, design, and bring to life.
The copyrighted works of expression being ingested into AI models would not exist but for the human likenesses, sounds, labors, and creativity of working people like the members of DPE’s affiliate unions. The founders of this country intended to encourage human creativity, not machinery, when it drafted the copyright clause of the U.S. Constitution. Additionally, the First Amendment was intended to protect human expression from censorship and suppression.
AI is not on the horizon; it is already our reality. We are witness to the hyper-realistic replication of performers’ voices, faces, and individual instrumental sounds, and the automation of sound recordings, compositions, performances, film editing, cinematography, and more through GAI. Animators, directors, musical composers, performers, writers, and countless other craftspeople are seeing their creative works fed into AI models, yielding convincing machine- generated results. If today’s policymakers and government officials fail to secure guardrails to this technological revolution, creative professionals will suffer from their inaction. It is no longer a question of being proactive; the time has passed, and the government is now compelled to respond defensively.
DPE appreciates your continued attention to this pressing issue. In the digital era, copyright protections, and other intellectual property rights, have become increasingly vital for union creative professionals who rely on them to safeguard their livelihood and careers. In the following responses, I address questions related to copyright protections. Please note that while this filing concentrates on copyright issues, individual members of DPE are also submitting comments that delve into their specific requirements and concerns, such as international author rights for directors and writers; rights to one’s name, image, voice, and likeness; and related rights for other craftspersons.
As described above, GAI systems have the ability to produce material that would be copyrightable if it were created by a human author. What are your views on the potential benefits and risks of this technology? How is the use of this technology currently affecting or likely to affect creators, copyright owners, technology developers, researchers, and the public?
Modern technologies can aid creative processes and expand the limits of human expression. Among these, AI emerges as a powerful force, capable of pushing frontiers of visual and auditory depictions. Moreover, AI excels in streamlining and automating certain aspects of content creation to the benefit of workers.
Creative professionals have been using several types of AI technologies for decades across diverse mediums, such as music, motion pictures, live performances, and literature. However, it remains crucial for policymakers to acknowledge that the essence of great art, entertainment, and media derives from human emotions and lived experiences, elements that AI lacks. In essence, without people, GAI is culturally without value.
AI models pose challenges for creative professionals and copyright holders. The AI models rely on ingesting copyrighted works of expression and likenesses to operate. AI has the power to mutilate an artist’s creative vision or point of view on any given topic. A machine cannot produce a painting without first ingesting the works of painters, develop an unauthorized television episode without first ingesting episodes from the rest of the underlying series, or produce a portrait without first ingesting the likenesses of others. In fact, ingesting GAI produced works appears to produce inferior, lower-quality results when compared to machine-created content created by ingesting original works of human authorship.
Creative professionals are actively working to adapt to the changes brought by AI, which may necessitate training and upskilling opportunities to stay relevant in evolving industries. Additionally, new job classifications may lend themselves to labor organizing.
Does the increasing use or distribution of AI-generated material raise any unique issues for your sector or industry as compared to other copyright stakeholders?
AI’s threat to jobs and livelihoods has been a serious issue in the entertainment industry. For example, films can be mutilated into virtual reality experiences, or a third party can change the artist’s creative vision and point of view. ChatGPT can regurgitate a screenplay, which has the potential to take the job of a human screenwriter. Voice cloning, as another example, is enabling employers to do away with foreign language dubbing jobs for working performers. Deepfakes will forever seed doubt in what we hear and see and cause serious reputational or emotional harm to those depicted and those who created the underlying work. For these reasons, we need international authors’ rights, likeness and voice rights, and protections for other creative professionals.
Looking at the copyright framework, union creative professionals often have a unique relationship to employers and their intellectual property. Members of DPE’s affiliate unions often work for a variety of production companies over the course of their career (or even in any given month or year), and the copyright for the productions that they create are owned by the employers or contracting party.
Nevertheless, the safeguarding of the rights and interests of these individuals is many times achieved through collective bargaining agreements (CBA). These CBAs play a pivotal role in ensuring that professionals in the art, entertainment, and media industries receive their fair share of the revenue generated by their work. Additionally, union creative professionals may have individually negotiated agreements that go above the terms of their union contract to also receive additional profit participation and/or creative control of their work and likeness.
Are there any statutory or regulatory approaches that have been adopted or are under consideration in other countries that relate to copyright and AI that should be considered or avoided in the United States? How important a factor is international consistency in this area across borders?
The arts, entertainment, and media industries have evolved into global enterprises that cater to audiences worldwide. Creative professionals should benefit from the worldwide distribution of their work. Works created by these artists must be equally protected in the United States and abroad for the system to work.
GAI knows no borders; it is essential for the United States to work with foreign countries and international organizations to develop basic floors and fundamental standards for the ethical and acceptable uses of this technology. We strongly support the commitment of the G7 countries - to which the United States belongs - to respecting material protected by intellectual property rights, including copyright-protected content, and ensuring transparency of data sets.
DPE feels strongly that the United States should not adopt special fair use standards for this technology. It is concerning that certain countries, such as Japan, Singapore, the United Kingdom, and the European Union, have, to varying degrees, elected to pass legislation to grant technology companies permission to ingest copyrighted works of expression without consent or compensation. Such exemptions lack merit and run counter to treaty obligations. For instance, Japan allows for the ingestion of copyrighted works for use in commercial works and does not require a party to first have legal access to those works. The U.K. has taken a more restrained, still problematic, approach by granting an exemption for non-commercial research purposes and the country does at least require legal access. To be clear, DPE does not support any changes that would expand the existing fair use provisions of the U.S. Copyright Act.
This situation may present an opportunity for the international community to strengthen the enforcement of intellectual property laws on a global scale. Just as foreign holders of copyrights encounter obstacles and exorbitant fees to enforce their rights here, American copyright holders face similar challenges when attempting to protect their rights abroad, even when laws allow for extraterritorial enforcement.
Should copyright owners have to affirmatively consent (opt in) to the use of their works for training materials, or should they be provided with the means to object (opt out)?
The United States, or any foreign country, should not adopt an opt-out system. Such a system places the onus on copyright holders and will leave them vulnerable to exploitation by technology companies. Consequently, it would put the members of DPE’s affiliate unions at even greater disadvantage because they would have no enforcement rights. If third parties wish to use copyrighted works to train AI models and generate GAI materials, it should be incumbent upon them to receive permission from the copyright holder.
It is essential that policymakers hold AI companies and users of AI models accountable for the unauthorized use of copyrighted works. In the absence of a legally recognized exemption, ingestion is a violation of the copyright holder’s exclusive right to reproduce or to make a copy. This violation occurs without the need for further distribution, performance, or the creation of a new work. In fact, a pure copy is less likely, not more, to qualify for the fair use defense as there is no new meaning, purpose, or transformation of the original work. It is merely taking something one would pay for in the market.
It is evident that the copyrighted works in questions are of enormous value to AI companies and that value should result in fair compensation for creative professionals. An opt-out system would create an intellectual property framework that runs counter to the principles of copyright law, sanctioning a windfall of riches for technology companies at the expense of copyright holders and hardworking creative professionals. Such an approach would be regressive and would create more problems than good.
Should Congress consider establishing a compulsory licensing regime?
The United States should firmly resist the urge to adopt a compulsory licensing regime. Mandatory licensing schemes devalue works of expression and force copyright holders to unwillingly go into business with third parties.
It is imperative that Congress preserve the open marketplace for licensing and intellectual property transactions, as well as to reinforce the bargaining power of labor unions in securing fair compensation for the use of works in secondary markets. DPE is concerned that lawmakers and regulators may change the rules as a reaction to the volume of copyrighted works required for AI ingestion and the speed at which AI models can produce new works.
The compulsory licensing scheme established for musical compositions, and in some cases, cable television transmission, has often been criticized for devaluing the true market value of a work and denying a copyright holder the fundamental right to withhold consent. It would be problematic to insert an independent collective management organization into the ecosystem, especially if it involves government interference.
In the United States, labor unions are the most qualified entities to oversee collective licensing schemes for their members. Labor unions possess the expertise and capacity to negotiate with employers and establish formulas, especially when dealing with large-scale licensing. For example, through collective bargaining, union members are paid residuals for the reuse of works in secondary markets, such as paid television.
The film and television industry serves as a prime example of a sector that relies on and flourishes from free market negotiation. This applies whether it be the licensing of a single highly valuable motion picture or the right to distribute an entire catalog of works with varying levels of market value.
In order to allow copyright owners to determine whether their works have been used, should developers of AI models be required to collect, retain, and disclose records regarding the materials used to train their models? Should creators of training datasets have a similar obligation?
Yes, to both questions. As seen in the courts, authors are encountering challenges to prove that their work was ingested into the system. For example, Sarah Silverman is having to go to great lengths to show that her book was ingested into the ChatGPT system after it was able to produce a detailed summary of the book.
Without appropriate transparency and robust recordkeeping, creative professionals and the entities that employ them lack the requisite knowledge to enforce their rights.
There are challenges in relying on watermarks and meta data to track files floating around on the Internet or being ingested into GAI models, as bad actors may simply use technology to remove digital fingerprints.
In a closed model, such as those utilized by the major motion picture studios, the companies can collect specific information to better trace the use of copyrighted work. For instance, in the case of the new 2023 Indiana Jones and the Dial of Destiny film, Disney used its own footage of Harrison Ford from previous movies.
DPE’s affiliate unions are, or will be, negotiating AI-specific terms into their collective bargaining agreements. Certain aspects of the use of AI significantly impact the wages and working conditions of labor union members and may constitute mandatory subjects of bargaining. Labor unions would greatly benefit from having access to searchable information about which works are being ingested and/or used to create new works.
Furthermore, if a harmed party or labor union can demonstrate that a work was ingested without a corresponding record, the courts should be prepared to provide relief in the form of monetary damages, costs, and fees. This will ensure that rights holders and labor unions have the necessary tools and incentives to protect their interests in a changing landscape.
Under copyright law, are there circumstances when a human using a generative AI system should be considered the “author” of material produced by the system? If so, what factors are relevant to that determination? For example, is selecting what material an AI model is trained on and/or providing an iterative series of text commands or prompts sufficient to claim authorship of the resulting output?
This is a complex question as the use of GAI in and of itself should not disqualify a work from copyright protection. In fact, this technology is already being ethically used in the creative process as a tool. Judges and policymakers should exercise caution in responding to wholly GAI material or human-prompted GAI material versus creative professionals that use, mold, and direct GAI at a more intricate level where a person or multiple people are providing enough creative control and modification to transform the GAI material into the work of those people.
GAI lacks the capacity to understand the lived experiences of individuals from diverse backgrounds, such as a Latina, a member of the LGBTQ+ community, an immigrant, a soldier, and/or someone who grew up in a specific location. Only when GAI is molded by a person can it serve as a human expression deserving of legal protection. Ultimately, it is only a human who requires the incentive to create new works and deserves to be rewarded for their creative efforts and aspirations. These principles align with the foundational constitutional justifications for copyright law in the first place.
In the context of AI, the law should uphold these principles by distinguishing between works that are by and large machine-generated and those that are the result of human guidance, molding, and creative control. AI-generated materials - including visual, audio, and literary works - lack sufficient human control and should not be copyrighted. A machine-generated prompt is at most an idea, and ideas are not copyrightable.
In closing, thank you again for your attention to this important issue. Absent smart policymaking and requisite safeguards, AI has the potential to upend the livelihoods and economic security of union creative professionals who rely more than ever on adequate and effective copyright protections to earn compensation and benefits in today’s digital era.
If you have any questions, please contact me or DPE’s Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
DPE's Response to Department of Commerce and Department of State's Request for Stakeholder Input on Draft G7 AI Principles
October 24, 2023
Dear Secretary Raimondo and Secretary Blinken,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I write in strong support of the language in Principle 11 of the G7’s International Draft Guiding Principles for Organizations Developing Advanced AI Systems. I urge the United States government and the G7 to continue supporting explicit language on respecting material protected by intellectual property rights, including copyright-protected content, and ensuring transparency of data sets, as part of promoting safe, secure, and trustworthy Artificial Intelligence (AI) technology worldwide.
AI is an issue that directly affects the members of DPE’s 12 affiliate unions in the arts, entertainment, and media industries. These unions’ members work as actors, stagehands, craftspeople, choreographers, dancers, directors, directorial team members, editors, musicians, stunt performers, instrumentalists, writers, singers, stage managers, recording artists, broadcasters, audio engineers, cinematographers, and in many other creative professions. They help power a sector of the economy that regularly generates four percent of the United States’ gross domestic product (GDP), creates a positive trade balance, and employs more than five million people.
Union creative professionals depend on strong copyright protections and an effective copyright enforcement system for their economic security. While not typically the copyright holder, many of these middle-class workers earn collectively bargained pay and contributions to their health insurance and pension plans from the sales and licensing of the content they help create. In 2021, for instance, creative professionals represented by the American Federation of Musicians (AFM), Directors Guild of America (DGA), International Alliance of Theatrical Stage Employees (IATSE), Screen Actors Guild - American Federation of Television and Radio Artists (SAG-AFTRA), and Writers Guild of America, East (WGAE) received over $2.8 billion in residuals. In addition, union creative professionals’ future work opportunities depend on legitimate sales and licensing.
Absent worldwide safeguards to ensure consent and compensation for the use of copyrighted works and individual intellectual property rights, and appropriate transparency of training sets, AI will be used as a sophisticated, deceptive tool for content theft, unauthorized digital replication of individual’s voices and likenesses, and cultural misappropriation. Developers will be incentivized to train their AI technologies on the creative works and the creative talents that the members of DPE’s affiliate unions develop, design, and bring to life.
AI abuse threatens the economic livelihoods of union creative professionals. These individuals will lose out on the aforementioned collectively bargained royalties, residuals, and contributions to their health care and retirement funds that come from exploitation of the creative works they helped make. They will be faced with job displacement and job replacement. Ingested stolen content will train AI technologies that circumvent labor contracts, minimize or eliminate the need for human workers, and, in worse case scenarios, replace a creative professional with a digital double of that professional or a replication of their work. In effect, union creative professionals will be unwitting contributors to their own economic demise.
The potential for abuse and the catastrophic ramifications from it are why the stakes have never been higher for the everyday, middle-class Americans who are members of DPE’s affiliate unions in the arts, entertainment, and media industries. For this reason, I strongly support the language in Principle 11 of the G7’s International Draft Guiding Principles for Organizations Developing Advanced AI Systems and urge the United States government and the G7 to continue supporting explicit language on respecting copyright and ensuring transparency.
If you have any questions, please do not hesitate to contact me or Michael Wasser, DPE’s Assistant to the President/Legislative Director, at mwasser@dpeaflcio.org
Sincerely,
Jennifer Dorning, President
DPE Letter to the Senate Judiciary Committee in Support of Deborah Robinson's Confirmation as IPEC
September 5, 2023
Dear Chairman Durbin and Ranking Member Graham,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I write in strong support of Deborah Robinson’s nomination to serve as the Intellectual Property Enforcement Coordinator (IPEC). Ms. Robinson’s more than two-decade legal career, including real world enforcement experience, makes her well-qualified to serve in this critical role.
Within DPE are 12 unions that represent people who work in the arts, entertainment, and media industries. These unions’ members are actors, stagehands, craftspeople, choreographers, dancers, directors, musicians, stunt performers, instrumentalists, writers, singers, stage managers, recording artists, broadcasters, audio engineers, photographers, editors, and other creative professionals. They power a sector of the economy that regularly generates over four percent of the United States’ GDP, creates a positive trade balance, and is responsible for more than five million jobs.
Union creative professionals depend on strong intellectual property protections for their economic livelihoods. Many earn collectively bargained pay and contributions to their health insurance and retirement plans from the sales and licensing of the creative content they help create. Revenue from authorized sales and licensing also funds the projects of tomorrow that these unions’ members count on for future jobs. That’s why, while not typically the copyright holders, the theft and unlicensed use of copyrighted content threatens these middle-class professionals’ economic security. Union creative professionals also are harmed when their voices, images, and likenesses are used without consent. Public figures, including prominent union professionals, are at heightened risk of image-based sexual abuse (deepfake or revenge porn), privacy violations, defamation, and commercial misappropriation.
The IPEC is the only position within the Executive Office of the President that has specific statutory authority to engage in and coordinate the Administration’s actions on copyright policy issues. With Congress and the Biden-Harris Administration right now confronting the rapid emergence of Artificial Intelligence (AI), there is an even more urgent need for the Senate to confirm Ms. Robinson as IPEC so she can participate fully in these important policy discussions. What gets decided in the coming months with regard to AI will directly affect the ability of union creative professionals to continue earning family-supporting pay in their chosen careers.
In closing, I believe Ms. Robinson meets the mark both in terms of technical qualifications and understanding the importance of intellectual property rights for middle-class creative professionals. For this reason, I urge the Judiciary Committee, and the Senate as a whole, to move swiftly on Ms. Robinson’s confirmation. Previously, the Senate has confirmed IPEC nominees in both Democratic and Republican administrations with overwhelming bipartisan support, and Ms. Robinson should be no different.
If you have any questions, please contact me or DPE Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
DPE Urges House Members to Support H.R. 2871, the Performing Artist Tax Parity Act (PATPA)
July 17, 2023
Dear Representative,
On behalf of the 24 national unions in the Department for Professional Employees, AFL-CIO (DPE), I strongly urge you to co-sponsor H.R. 2871, the Performing Artist Tax Parity Act (PATPA), and vote for the bill on the floor. Introduced by Reps. Vern Buchanan (R-FL) and Judy Chu (D-CA), this bipartisan legislation would update the Qualified Performing Artist (QPA) deduction, modernizing a provision that has been on the books since President Reagan signed it into law. By updating the QPA deduction, PATPA will ensure that middle-class entertainment workers can again deduct common business expenses.
Actors, stage managers, dancers, musicians, cinematographers, and many other creative professionals working as W-2 employees spend 20 to 30 percent of their income on necessary expenses to secure and maintain employment, including travel to auditions, talent agents, and camera equipment. Prior to the 2017 Tax Cuts and Jobs Act, these creators could claim miscellaneous itemized deductions for business expenses. Without the ability to deduct these expenses, middle-class creative professionals, including members of DPE’s affiliate unions, have experienced significant tax increases, and struggled to make ends meet.
PATPA would restore tax fairness for middle-class creative professionals by updating the eligibility threshold for the QPA deduction. QPA is a provision of the tax law that allows certain performing artists the option to take an “above the line” deduction for expenses incurred in the course of their employment. Currently, the adjusted gross income threshold for the QPA deduction is $16,000, a level unchanged since QPA’s inception in 1986. PATPA would raise the threshold to $100,000 for single taxpayers and $200,000 for joint filers, and also add a built-in phase out to help transition the taxpayer out of the deduction.
The ability to claim the QPA deduction would have a meaningful impact on the lives of creative professionals and their families. According to information from the Volunteer Income Tax Assistance (VITA) program, a creative professional in Media, Pennsylvania, would have realized a tax savings of nearly 36 percent under PATPA. A Charlotte, North Carolina-based creative professional would pay about 20 percent less in taxes. A creative professional in Brooklyn, New York, would save just under 64 percent in taxes. These individuals’ experiences are not unique. PATPA will allow hundreds of thousands of middle-class professionals to put money that now goes to pay higher tax bills toward the next month’s rent, putting food on the table, and contributing to their local economies.
PATPA is common sense, consensus legislation that will have an immediate impact on working people with negligible budgetary impact, according to the Joint Committee on Taxation. In the 117th Congress, 92 House members from both parties co-sponsored PATPA, and the bill enjoys wide support from employers and professionals across the arts and entertainment industries.
Now is the time to restore tax fairness for hundreds of thousands of middle-class creative professionals, and to correct a flaw in the U.S. tax code that punishes these individuals for seeking work. For these reasons, I ask you to co-sponsor H.R. 2871 and support its passage on the floor.
If you have any questions, please contact me or DPE Assistant to the President/Legislative Director Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
A Policy Agenda for Advancing Diversity, Equity, and Inclusion (DEI) in the Arts, Entertainment, and Media Industries
118th Congress
As unions, we hold a fundamental belief that diversity is a strength. We work inside and outside the traditional collective bargaining process to create more and better opportunities for underrepresented people. Smart policy solutions aimed at creating diverse talent pipelines, incentivizing diversity in hiring, and supporting collective bargaining will help our workplaces and our industries move forward.
Ensure That Creators Can Pursue Middle Class Careers
All creative professionals must be able to pursue a career with fair pay and benefits. Otherwise careers in the arts, entertainment, and media industries will be limited to a narrow, non-inclusive set of people – notably those who can afford to hold out for the promise of a future payday that may never arrive. Creative professionals must be able to enforce their workplace rights, including the right to join together in union and negotiate collectively with their employers. Through collective bargaining, people of color and women have raised their pay, narrowed the racial wage gap,[1] and established mechanisms for addressing intentional and unintentional racism in their workplaces.[2] Creative professionals also need strong copyright protections because they depend on the sale of legitimate content for their pay and benefits. Too often creative professionals of historically marginalized communities are not able to realize the full economic value of their intellectual property, an impediment to maintaining a career that utilizes their unique talents and abilities.
Congress should:
Pass the Protecting the Right to Organize (PRO) Act;
Pass the Performing Artist Tax Parity Act;
Pass the Restoring Justice for Workers Act;
Pass the American Music Fairness Act; and
Support copyright reforms aimed at combating content theft, such as reforming Section 512 of the Digital Millennium Copyright Act to restore balance between content creators and online platforms and ensure that creative professionals can earn a fair return for their work.
Address Systemic Barriers to Careers in the Arts, Entertainment, and Media
Every person should have the opportunity to pursue a career in the arts, entertainment, and media industries. As unions, we work through the collective bargaining process to ensure that our employers respect the equal rights of all in their workplaces. Still more must be done to remove the systemic, societal barriers that hold too many people back to help ensure that our industries can fully reflect the mosaic of America.
Congress should:
Pass the Create a Respectful and Open World for Natural Hair (CROWN) Act;
Pass the Equality Act;
Protect the right of people to make their own reproductive healthcare decisions; and
Provide term-limited federal financial support to ensure that workplaces are safe and accessible for all creative professionals.
Increase Federal Arts Funding and Establish DEI Objectives for Grant Recipients
Through grants, seed money, and technical support, the National Endowment for the Arts (NEA), National Endowment for the Humanities (NEH), and the Corporation for Public Broadcasting (CPB) ensure that Americans of all means, geographies, and abilities have access to artistic and educational content. The NEA, NEH, and CPB also help bolster local economies and put creative professionals to work on nonprofit productions and performances, including members of our unions. These gigs have also provided entry points to careers in the for-profit side of our industries for many of our members through the opportunity to develop skills, experience, and professional connections. Congress can help ensure that more of these career opportunities are available to people who are underrepresented in our industries.
Congress should:
Increase funding for the NEA, NEH, and CPB;
Work with stakeholders, including unions, to develop diversity hiring and reporting objectives for grant recipients, such as requiring that applicants provide a three-year look-back report on recruitment, hiring, and promotion; and
Establish an incubator grant program to help underrepresented people pursue creative projects and make connections with industry mentors.
Leverage Federal Tax Incentives to Encourage Diverse Hiring
Recognizing the boost provided to state and local economies, Congress has established tax benefits for American-based film, television, and live entertainment productions. Tax incentives are important because they create work opportunities for our members that may otherwise go abroad. We know from the state level that tax policy can also offer a “carrot” approach for our industries’ employers to hire more inclusive casts and crew.
Congress should:
Follow the lead of states like Illinois, New Jersey, and New York to identify effective diversity requirements for federal tax incentives that will spur more inclusive hiring in film, television, and live entertainment.
If you have any questions, please contact DPE Assistant to the President/Legislative Director Michael Wasser at mwasser@dpeaflcio.org
[1] McNicholas et al. (2020). “Why unions are good for workers - especially in a crisis like COVID-19.” Washington, DC: Economic Policy Institute. Available here: https://www.epi.org/publication/why-unions-are-good-for-workers-especially-in-a-crisis-like-covid-19-12-policies-that-would-boost-worker-rights-safety-and-wages/.
[2] “Toolkit: Advancing Racial Justice in the Professional Workplace.” (2020). Department for Professional Employees, AFL-CIO. Available here: https://www.dpeaflcio.org/other-publications/toolkit-advancing-racial-justice-in-the-professional-workplace
DPE's Comments in Support of DOL's Proposed FLSA Employee Classification Rule
December 13, 2022
Amy DeBisschop
Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor, Room S-3502
200 Constitution Avenue NW
Washington, D.C. 20210
Comments on RIN 1235-AA43: Employee or Independent Contractor Classification Under the Fair Labor Standards Act
Dear Ms. DeBisschop,
On behalf of the Department for Professional Employees, AFL-CIO (DPE) and our affiliate unions in the arts, entertainment, and media industries, I write in support of the U.S. Department of Labor’s (DOL) proposed rule on independent contractor classification under the Fair Labor Standards Act (FLSA).
By way of introduction, DPE is a coalition of 24 national unions, 12 of which are unions representing professionals working in the arts, entertainment, and media industries. DPE coordinates activities among these 12 unions, including advocating for shared policy priorities. These unions’ members work as actors, stagehands, craftspeople, choreographers, dancers, directors, musicians, stunt performers, instrumentalists, writers, singers, stage managers, recording artists, broadcasters, audio engineers, photographers, editors, and in many other creative professions. At organizations large and small, they help power a sector of the economy that regularly generates four percent of the United States’ gross domestic product (GDP), creates a positive trade balance, and employs more than five million people.
The members of DPE’s affiliate unions in the arts, entertainment, and media industries are proud that, through collective bargaining, they have helped create a sector where people can work in W-2 jobs that provide family-supporting pay; affordable, quality healthcare; retirement security; and safe working conditions. These standards were not won overnight or handed down benevolently. Rather, they were achieved through years of union creative professionals coming together to earn a fair return on their work as employees. For this reason, DPE and its affiliate unions in the arts, entertainment, and media industries support DOL’s proposed rule on employee/independent contractor classification.
DOL’s proposed six-factor “economic reality” test and its totality-of-the-circumstances approach is critical to ensuring that people who work in the arts, entertainment, and media industries can realize their rights under the FLSA. While popular culture may glamorize the industries in which they work, the vast majority of creative professionals and journalists are like most working people in any other industry; they are employees who depend on finding work in the business of others. A typical creative professional or journalist does not have power over key business decisions, nor do they make capital or entrepreneurial investments in the entities for which they work. They go to work for an employing entity, using their specialized skill in furtherance of that employer’s business, while being precluded from working for others at the same time due to job demands.
What is relatively unique about the arts, entertainment, and media industries is the gig-based nature of employment. Due to the relatively short duration of any one production, performance, or assignment, creative professionals and journalists may have multiple employers throughout a calendar year. Some, such as an actor or stagehand, may even have multiple employers in a single week. However, these individuals are typically not in business for themselves, and the duration of their employment is an inherent feature of the industries in which they work, not a result of creative professionals’ independent business decisions.
The proposed rule provides clarity and focus for workers and businesses alike in the creative industries. In a sector where the work can be seen as a hobby, the clear articulation of who is covered under the FLSA is critical for ensuring that all creative professionals can earn fair pay and benefits. Otherwise, careers in the arts, entertainment, and media industries will be limited to a narrow, non-inclusive set of people fortunate enough to be able to withstand the financial volatility and economic hardship that too often can occur when employers misclassify employees as independent contractors.
For these reasons, DPE and its affiliate unions in the arts, entertainment, and media industries support the implementation of the proposed rule. If you have any questions, please contact me or DPE’s Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
DPE and Affiliated Unions in the Entertainment Industry Urge Congress to Pass the Performing Artist Tax Parity Act
December 6, 2022
Dear Chairman Neal, Chairman Wyden, Ranking Member Brady, and Ranking Member Crapo,
We write to urge inclusion of H.R. 4750/S. 2872, the Performing Artist Tax Parity Act (PATPA), in any year-end tax legislation package that may be put forward in the final weeks of the 117th Congress. Introduced by Reps. Judy Chu (D-CA) and Vern Buchanan (R-FL) in the House and Sens. Mark Warner (D-VA) and Bill Hagerty (R-TN) in the Senate, this bipartisan legislation would update the Qualified Performing Artist (QPA) deduction, modernizing a provision that has been on the books since it was signed into law in the 1980s by President Reagan, so that middle-class entertainment workers can again deduct common business expenses.
Most entertainment workers, including members of our unions, spend 20 to 30 percent of their income on necessary work expenses. Typical expenses might include transportation to an audition, a talent agent and manager, or equipment such as expensive cameras, musical instruments, or tools. An unfortunate and unintended consequence of the last tax reform bill was the elimination of the ability of entertainment workers to deduct these common work expenses. Subsequently, many of our members and other workers in the industry struggle to pay burdensome amounts in taxes, making it difficult for them to make ends meet. Further, these workers face a tax code that punishes them for seeking employment.
PATPA would restore tax fairness for middle class creative professionals by updating the eligibility threshold for the QPA deduction. QPA is a provision of the tax law that allows certain performing artists the option to take an “above the line” deduction for expenses incurred in the course of their employment. Currently, the adjusted gross income threshold for the QPA deduction is $16,000, a level unchanged since QPA’s inception in 1986. PATPA would raise the threshold to $100,000 for single taxpayers and $200,000 for joint filers, and also add a built-in phase out to help transition the taxpayer out of the deduction.
The ability to claim the QPA deduction would have a meaningful impact on the lives of middle-class entertainment workers and their families. According to information from the Volunteer Income Tax Assistance (VITA) program at the Actors’ Equity office in New York, a Pennsylvania sound engineer would realize a tax savings of over $4,500 under PATPA. A Nevada actor would pay $1,500 less in taxes. A New York musician would save $3,000. Instead of paying unnecessarily burdensome tax bills, these middle-class professionals will be able to put their money toward seeking continued work, making the next month’s rent, putting food on the table, and contributing to their local economies.
We urge you to include PATPA in any year-end tax legislation. PATPA will bring much needed tax fairness to hard working Americans who simply want to keep working in the entertainment industry during the challenging COVID recovery period.
If you have any questions, please do not hesitate to contact any of us or DPE Assistant to the President/Legislative Director Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Kate Shindle, President, Actors’ Equity Association
Raymond M Hair, Jr., International President, American Federation of Musicians of the United States and Canada
Raymond Menard, President, American Guild of Musical Artists
Jennifer Dorning, President, Department for Professional Employees, AFL-CIO
Lesli Linka Glatter, President, Directors Guild of America
Carlo Fiorletta, President, Guild of Italian American Actors
Matthew D. Loeb, International President, International Alliance of Theatrical Stage Employees
Richard Lanigan, President, Office and Professional Employees International Union
Fran Drescher, President, Screen Actors Guild - American Federation of Television and Radio Artists
Evan Yionoulis, President, Stage Directors and Choreographers Society
Michael Winship, President, Writers Guild of America, East
DPE Urges the House Judiciary Committee to Support the American Music Fairness Act
December 6, 2022
Support H.R. 4130, the American Music Fairness Act
Dear Representative,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I urge you to vote yes in support of H.R. 4130, the American Music Fairness Act, at the House Judiciary Committee’s December 7 markup, and to oppose any harmful amendments. This bipartisan legislation would ensure that musicians, singers, and performing artists — including members of DPE’s affiliate unions — are compensated when their songs are played on terrestrial (AM/FM) radio.
Currently, America’s AM/FM stations earn billions of dollars in advertising revenue each year, but do not compensate the performers whose works draw in the audiences that advertisers pay the stations to reach. In addition, because American AM/FM radio stations do not pay for content that musicians and singers record, other countries routinely seize the royalties owed to U.S. performers for works played on their own radio stations.
The American Music Fairness Act would right these wrongs. The bill would require AM/FM stations whose gross annual revenue is greater than $1.5 million — or stations owned by parent companies whose annual revenue tops $10 million — to pay artists and musicians when their songs are played on air. This common-sense legislation also includes broad exemptions and low annual flat fees for smaller stations and public, college, and noncommercial broadcasters, while protecting songwriters by ensuring payments to artists do not come out of their share of royalties. In doing so, the American Music Fairness Act would also ensure that foreign countries pay American artists and musicians when their songs are played abroad.
Now is the time for Congress to close a loophole that prevents creative professionals, including union members, from earning fair compensation when their songs are played on AM/FM radio. Many of these working people went as long as two years without being able to earn money performing live due to the COVID-19 pandemic. Meanwhile, AM/FM stations weathered the pandemic’s economic turmoil by profiting off playing these artists’ musical works.
I urge you to vote yes in support of H.R. 4130 at the House Judiciary Committee’s December 7 markup, and to oppose any harmful amendments.
If you have any questions, please contact me or DPE Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning
DPE's Comments Regarding the 2022 USTR Notorious Markets List
October 13, 2022
Ms. Ariel Gordon
Director for Innovation and Intellectual Property
Office of the United States Trade Representative
600 17th St. NW
Washington, DC 20508
Re: 2022 Review of Notorious Markets for Counterfeiting and Piracy: Comment Request [Docket Number USTR-2022-0010]
Dear Ms. Gordon,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I write in response to the Office of the United States Trade Representative’s (“USTR”) August 26, 2022, Federal Register notice requesting comments on the 2022 Review of Notorious Markets for Counterfeiting and Piracy.
I commend USTR for using the 2022 Notorious Markets List to examine the impact of online piracy on U.S. workers, an issue directly relevant to the members of DPE’s 12 affiliate unions in the arts, entertainment, and media industries. The members of these unions are actors, choreographers, cinematographers, dancers, directors, editors, musicians, singers, stage managers, stunt performers, technicians, writers, and other creative professionals. They help power a sector that employs more than five million people, generates more than four percent of the United States’ GDP, and produces a positive trade balance.
Online piracy, or content theft, threatens the economic security of many union creative professionals, even though they are not typically the copyright holder. These middle-class workers earn collectively bargained pay and contributions to their health insurance and pension plans from the sales and licensing of the content they help create. In 2021, for instance, Screen Actors Guild - American Federation of Television and Radio Artists (SAG-AFTRA) performers earned $1.11 billion (at an average amount of $229 per residual check), International Alliance of Theatrical Stage Employees (IATSE) behind-the-scenes professionals earned $510 million for their pension and health plan, the Directors Guild of America (DGA) distributed $460 million to directors and directorial team members, and writers, including members of the Writers Guild of America East (WGAE), earned $569 million.
In addition, union creative professionals’ future work opportunities depend on legitimate sales and licensing, particularly in international markets. Illegal downloads and streaming of film and television productions results in the estimated annual loss of at least 230,000 jobs. This job loss occurs because employers, who generally are the rights holders, set their budgets based on their expected return on investment. When copyrighted content is stolen, investment returns diminish, and less money is available to put members of DPE’s unions to work on future projects. Fewer job opportunities also become available as investors lose faith in the ability of countries to adequately enforce copyright protections, which is why U.S. trade agreements must provide strong copyright protections for creative professionals.
Content theft is also an impediment to advancing diversity, equity, and inclusion in creative industries. Too often creative professionals of color, women, and other marginalized individuals are not able to realize the full economic value of their intellectual property, an obstacle to maintaining a career that utilizes their unique talents and abilities. All creative professionals must be able to earn fair pay and benefits, otherwise their industries will be limited to a non-inclusive group of people who can afford to work for little to no compensation as they hold out for the promise of a future payday that may never arrive.
Fortunately, there are actions that USTR can take as part of its worker centric trade policy and the broader Biden-Harris Administration’s pro-worker agenda to protect the wages, benefits, and jobs of the many middle-class creative professionals who depend on the legitimate sales and licensing of creative content.
The United States should not incorporate outdated, overbroad copyright safe harbor language that is modeled after Section 512 of the Digital Millennium Copyright Act into future trade agreements. Section 512, in specified circumstances, frees online platforms from liability for infringing content posted by others. Due to a series of harmful court decisions, Section 512, which was originally intended to create a narrow protection to an infant industry, now provides broad protection against copyright infringement liability to some of the largest, most dominant companies in the world. In essence, Section 512 acts as a nearly free pass for platforms to profit from stolen or otherwise illegitimate content posted by third parties. When U.S. trade agreements include an online safe harbor rule similar to Section 512, they allow stolen or otherwise illegitimate content to proliferate across the globe. Mandating that our trading partners adopt rules that turn a blind eye to stolen and unlicensed copyrighted content on the Internet contributes to DPE unions’ members losing out on the aforementioned collectively bargained royalties, residuals, and contributions to their health care and retirement funds that come from exploitation of the creative works they helped make, along with fewer future job opportunities.
The United States should also not include in trade agreements a provision modeled on Section 230 of the Communications Decency Act, which allows online platforms to avoid responsibility for unlawful user content they themselves facilitated or profit from. Along with content theft, union creative professionals too often experience their voices, images, and likenesses misappropriated for use in unauthorized AI-generated online content. The reality is that AI is rapidly advancing, and society does not fully know the impacts. What is already clear are the dangers and downsides, including image-based sexual abuse, misappropriation for commercial gain, and the proliferation of disinformation using known public figures without their consent. Therefore, inclusion of Section 230-type language in U.S. trade agreements is a mistake that makes it difficult to establish safeguards against content that puts ordinary people, including DPE unions’ members, at risk. Section 230-type language may also prevent the United States and our trading partners from adopting a law similar to Australia’s “payment for news” law. DPE’s unions’ members include journalists and other media professionals whose works giant tech companies profit from, while draining the news industry of its entitled revenue.
The Indo-Pacific Economic Framework (IPEF) provides an immediate opportunity for the United States to pursue policies that will protect and promote the economic security of the more than five million people, including members of DPE’s affiliate unions, who depend on copyright protection to sustain their livelihoods. I refer you to the recommendations included in the Labor Advisory Committee on Trade Policy and Negotiations (LAC) comments responding to USTR’s March 10, 2022, Federal Register notice, Request for Comments on the Proposed Fair and Resilient Trade Pillar of an Indo-Pacific Economic Framework (USTR-2022-0002).
In closing, thank you again for your attention to this important issue. Union creative professionals rely more than ever on adequate and effective copyright protection to secure their livelihoods in today’s digital era. The numerous examples of online markets engaged in content theft and their global reach showcase how stolen content can be transmitted across borders at speeds and in quantities that few could imagine even a decade ago. It is for this reason that I urge USTR to go beyond naming online content theft markets in its Notorious Markets List and to pursue trade policies that address this scourge inflicting economic damage on the middle-class, working people in the creative industries.
If you have any questions, please contact me or DPE’s Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
Statement for the Record for the Senate Immigration Subcommittee's Strengthening Our Workforce and Economy Through Higher Education and Immigration Hearing
June 13, 2022
Dear Chairman Padilla and Ranking Member Cornyn,
On behalf of the 24 national unions in the Department for Professional Employees, AFL-CIO (DPE), I wish to share our perspective on the topic of the Subcommittee’s June 14th hearing, “Strengthening Our Workforce and Economy Through Higher Education and Immigration.”
The hearing topic is directly relevant to DPE’s affiliate unions, which represent over four million professional, technical, and other highly skilled workers. The members of DPE’s unions come from a diverse array of backgrounds, nationalities, and immigration experiences. Within our coalition are U.S. citizens, permanent residents, DACA and TPS beneficiaries, and people working on F, J, H, O, and P nonimmigrant visas. Members of DPE affiliate unions work in nearly every industry, including as faculty and graduate employees at colleges and universities across the country.
Indeed, as the Subcommittee convenes this hearing focused on the higher education field, it is important to remember that colleges and universities are both places of learning and places of employment for international students. International graduate students, including members of DPE’s unions, work on their campuses in various teaching and research roles. Too often higher education employers threaten these international students with the revocation of their visa and deportation if they exercise their workplace rights, including the right to organize as a union and engage in concerted activity.[1] Along with denouncing this egregious employer behavior, we urge the Subcommittee to support reforms to relevant F-1 and J-1 regulations that have been used by colleges and universities to create doubt or fear on the part of international graduate employees engaging in protected labor activity. These regulations should be clarified to make clear that labor protests, including strikes, are protected and would not be grounds under either regulation for any adverse action either from an employer, sponsor organization, or the government.
Support for high-road immigration policies that empower professionals
DPE has long advocated for fundamental reforms to the U.S. immigration system to ensure enforceable workers’ rights and labor standards in any visa program affecting professionals. We oppose low-road immigration policies that benefit corporate interests by allowing differential treatment of workers as a source of cheap labor, and we support smart policies that ensure all working people can earn a fair return on their work. DPE’s guiding belief is that U.S. immigration policies must work for professionals, and not just employers.
The Keep STEM Talent Act is legislation that meets the mark as a high-road approach to attracting and retaining international talent. Reintroduced in the Senate this year by Judiciary Committee Chairman Durbin, along with members of this Subcommittee, including Chairman Padilla, Senator Blumenthal, Senator Klobuchar, and Senator Hirono, this legislation enables talented graduates from U.S. colleges and universities to continue contributing to the American economy while ensuring that they can earn a fair return on their work. Under this legislation, international graduates who earn STEM advanced degrees from American universities are exempt from the annual green card caps so long as their employers receive approved labor certifications and pay them above the median wage level for the occupation and geographic area. The Keep STEM Talent Act offers in-demand graduates a direct path to permanence, rather than forcing them to accept precarious, temporary visas. This approach reinforces the professionalism of the STEM workforce and affords individuals agency in the labor market. DPE is proud to support the Keep STEM Talent Act and urges the Subcommittee to take up this legislation as a way to retain international graduates in the United States.
DPE’s commitment to a high-road immigration system is also why we advocate for policies that empower professionals, including a path to citizenship for recipients of TPS (Temporary Protected Status,) DACA (Deferred Action for Childhood Arrivals) and DED (Deferred Enforced Departure). DPE supports allowing professionals to self-petition for permanent status and providing labor market mobility to individuals with approved I-140s. DPE also advocates for prohibitions on “breach fees,” the far too common practice of employers requiring employees to sign one-sided contracts with enormous financial penalties that effectively bind these professionals to their jobs in exchange for sponsoring them for permanent status. DPE believes the Subcommittee should pursue these reforms so that the world’s talent will feel certain that they will not face employer coercion if they come to work in the United States.
The need for improved tracking of the education to workforce pipeline
DPE also supports improvements to tracking the education to workforce pipeline. Underpinning any conversation on recruiting workers from abroad is the question of the supply of available, qualified professionals in the United States. This Subcommittee, and the Congress as a whole, should have the most accurate statistical picture possible. It is not enough to take the corporate lobby at its word. DPE has watched in recent years too many employers, including in higher education, claim they cannot find qualified workers, only to layoff their employees, including members of our unions, and require them to train their foreign replacements as a condition for their severance.
While federal and state efforts have made strides to better track the education to workforce pipeline, Congress can and should take concrete steps to improve STEM education and workforce research and data and to assist workers, employers, and educators make informed decisions.[2] Currently, national surveys by the Census Bureau (Community Population Survey) and Bureau of Labor Statistics (Occupational Employment Statistics Survey) are the basis for identifying education and occupation trends. The surveys provide valuable and suitable information for a variety of purposes, but the data produced does not effectively identify state, regional, and national trends for STEM education and the STEM workforce.
Unemployment Insurance (UI) wage records, which are filed on a quarterly basis by employers, provide a picture of industry employment and separations, hours worked, and wages. However, UI records are currently a missed opportunity to capture accurate and dynamic occupational data. Done correctly, the inclusion of occupational data in UI wage records would give policymakers, education systems, and all stakeholders insight to national, regional, and local labor markets. Enhanced UI wage records could connect credentials and training to specific occupations and provide career mapping information over the course of changes and shifts to the economy.
Following the recommendations of the U.S. Department of Labor’s Workforce Information Advisory Council, Congress should commit the federal government to pursuing a phased-in, well-managed, and properly funded process for collecting and analyzing high-quality occupation data via states’ UI systems’ wage records. This policy commitment should be supported with increased funding for research and IT needs at the various state agencies performing education and workforce analysis. Finally, the benefit of overhauling and aligning UI records to provide occupational data should be articulated to the business community, education systems, and workers and students in the education-to-workforce pipeline and/or career transition.[3]
In closing, any effort to strengthen the country’s workforce and economy through immigration must start by providing a pathway to citizenship for recipients of DACA, TPS, and DED. These hard-working individuals are our family members, neighbors, and coworkers, and they have already been here making positive contributions to our communities for decades. If Congress wants to recruit and retain the world’s talent, it must understand the need and identify ways to ensure that all professionals, regardless of immigration status, can earn fair, family-supporting pay in an environment free from exploitation. That means pursuing a high-road approach to immigration that puts working people first by lifting wages, promoting worker empowerment, and ensuring that they can exercise their workplace rights free of retaliation or coercion. DPE stands ready to work with the Subcommittee to pass immigration reform that achieves these necessary outcomes.
If you have any questions, please contact DPE Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
[1] See, e.g., Washington University in St. Louis, Case 14-CA-202172, NLRB Advice Memorandum dated Oct. 31, 2017 (noting the tension between the regulation and labor law); Bill Shackner, Is fear over visa status being used to derail Penn State unionization effort? (Pittsburgh Post-Gazette, Apr. 12, 2018).
[2] For an example of existing federal-state efforts in improve education data and analysis of education outcomes, see Statewide Longitudinal Data Systems Grant Program administered by the Department of Education's National Center of Educational Statistics, https://nces.ed.gov/programs/slds/grant_information.asp.
[3] DOL Workforce Information Advisory Council, Recommendations to Improve the Nation's Workforce and Labor Market Information System, Jan. 2018, https://www.doleta.gov/wioa/wiac/docs/WIAC_Recommendations_Report_2018-01-25_Final_and_Signed.pdf. Legislative text for including occupational information in UI wage records can be found in: U.S. Senate Proposed legislation: S. 1269, Trade Facilitation and Trade Enforcement Act of 2015, Section 913. Improved collection and use of labor market information, 114th Congress, S. Rept. 114-45, (May 13, 2015).
Statement for the Record in Support of NEA and NEH Funding, Creation of Chief Diversity Officers
June 6, 2022
Dear Chairwoman Pingree and Ranking Member Joyce,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I write in support of funding the National Endowment for the Arts (NEA) and the National Endowment for the Humanities (NEH) at $204 million each in fiscal year (FY) 2023.
Many members of DPE’s affiliate unions in the arts, entertainment, and media industries earn their living working on NEA and NEH-supported productions, programs, and performances. Still more union creative professionals who work now in the commercial parts of these industries benefited from the nonprofit arts and media sector’s role as a proving ground for establishing their lifelong careers.
Funding the NEA and NEH at $204 million each will ensure that the agencies can continue to support good-paying, family-supporting jobs in every state and congressional district for creative professionals, including the members of DPE’s unions. Through grants, seed money, and technical support, the two agencies help put these people to work on artistic and educational content that is available to Americans of all means, geographies, and abilities. NEA and NEH-funded programs help veterans heal from the invisible scars of war, inspire the next generation of creators and innovators, and deliver content that unites people across small towns and big cities. Increasing the NEA and NEH annual funding level to $204 million in FY 2023 is also an important step toward a historical full funding level of $331 million, or $1 per capita.
Additional NEA and NEH funding will help creative professionals quickly return to work safely following the COVID-19 pandemic’s economic devastation. Creative professionals were among the first to lose their jobs at the pandemic’s outset, and they have been among the last to return to their jobs.
Increased funding for the NEA and NEH is also good for local communities and the small businesses that are still recovering from the pandemic. Pre-pandemic research shows that audiences spend an estimated $31.47 per person, per event, beyond the cost of admission, on lodging, restaurants, clothing, transportation, and other goods and services.
In addition, DPE believes the NEA and NEH are critical to advancing diversity, equity, and inclusion in the arts, entertainment, and media industries. In February 2021, DPE and our affiliate unions in these industries released a “Policy Agenda for Advancing Diversity, Equity, and Inclusion in the Arts, Entertainment, and Media Industries,” which contains policy solutions aimed at creating diverse talent pipelines and incentivizing diversity in hiring. Equity and inclusion are essential, not only as a matter of doing what is right, but also for the long-term sustainability of the creative sector.
In sum, the NEA and NEH are critical agencies for working people and local economies. Their work delivers a high return on investment and cannot be replaced by the private sector. I urge the Subcommittee to fund the NEA and NEH at $204 million and help sustain America’s continued recovery from the COVID-19 pandemic.
If you have any questions, please contact DPE Assistant to the President/Legislative Director, Michael Wasser, at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
Statement for the Record for the House Committee on the Judiciary's Respecting Artists with the American Music Fairness Act Hearing
February 1, 2022
Dear Chairman Nadler and Ranking Member Jordan,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I wish to share our perspective on “Respecting Artists with the American Music Fairness Act.” Thank you for holding this important hearing.
By way of introduction, DPE is a coalition of 24 national unions, 12 of which are unions representing professionals working in the arts, entertainment, and media industries. Two of these unions - the American Federation of Musicians (AFM) and the Screen Actors Guild - American Federation of Television and Radio Artists (SAG-AFTRA) - include musicians, singers, and recording artists as members. I am thrilled that the Committee will have an opportunity to hear directly from two of these union members during this important hearing: AFM Local 257 President Dave Pomeroy and SAG-AFTRA member Gloria Estefan.
DPE stands in strong support of the American Music Fairness Act (AMFA). This bipartisan legislation would ensure that performers, including members of DPE’s affiliate unions like Mr. Pomeroy and Ms. Estefan, are compensated when their songs are played on terrestrial (AM/FM) radio.
The simple truth is that American terrestrial radio stations pad their profits at the expense of music professionals. Station owners earn billions in advertising revenue each year while not paying the performers whose music is responsible for the audiences undergirding terrestrial radio’s business model. The AMFA would right this wrong by ensuring performers can earn a fair return for their work.
The AMFA would also ensure that foreign countries pay American artists and musicians when their songs are played abroad. Currently, other countries regularly seize the royalties owed to U.S. performers because American terrestrial radio stations are not required to pay artists for music performances. Passing the AMFA therefore will also provide U.S. performers access to hundreds of millions of U.S. dollars in payments from outside the United States.
As the United States continues to recover from the worst of the COVID-19 pandemic’s economic impact, there is an urgent need for Congress to ensure that performers are paid when their works are played on terrestrial radio here and abroad. Due to their work occurring in venues requiring close personal contact, nearly all artists and musicians were unable to earn money performing live since the start of the COVID-19 pandemic in March 2020 until very recently. Even then, the surge of the latest variant has caused an increasing number of live events to be postponed or cancelled. All the while, terrestrial radio stations have weathered the pandemic and ensuing variants by profiting off the playing of these creative professionals’ musical works. This inequity can and must be fixed.
It is for these reasons that I urge the House Judiciary Committee to approve the AMFA expeditiously and send it to the House floor for final passage. Now is the time for Congress to close a loophole that has prevented union creative professionals from earning fair compensation when their songs are played on terrestrial radio.
If you have any questions, please contact DPE Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
Letter to House and Senate Appropriators on FY22 Funding for the NEA, NEH, and CPB
January 20, 2022
Dear Chairwoman DeLauro, Chairman Leahy, Ranking Member Granger, and Vice Chairman Shelby,
I write to convey the urgency of passing a Fiscal Year (FY) 2022 appropriations bill that funds the National Endowment for the Arts (NEA) and the National Endowment for Humanities (NEH) at $201 million each and the Corporation for Public Broadcasting (CPB) at $565 million. These funding levels were passed by the U.S. House of Representatives in July 2021.
Many union creative professionals earn their living working on nonprofit productions and in performances that receive funding from the NEA, NEH, and CPB. As such, passing a government spending bill with federal arts funding at the above stated levels is a priority for the Department for Professional Employees, AFL-CIO (DPE) and our 12 affiliate unions that represent professionals working in the arts, entertainment, and media industries.
Funding the NEA and NEH at $201 million and CPB at $565 million means that these agencies can reach more Americans with their vital missions. Through grants, seed money, and technical support, the NEA, NEH, and CPB ensure that Americans of all means, geographies, and abilities have access to artistic and educational content. NEA, NEH, and CPB-funded programs help veterans heal from the invisible scars of war, inspire the next generation of creators and innovators, and deliver content that unites people across small towns and big cities. In addition, the nonprofit arts sector is a proving ground where people wanting to work in the commercial parts of the arts, entertainment, and media industries can establish their careers.
Increased NEA, NEH, and CPB funding will also allow the agencies to help support more jobs for more people in every congressional district. That is because the nonprofit arts community helps power a sector that supports over five million jobs, including, as previously noted, jobs for many of our members. These funding levels are also an important step toward restoring the NEA to an inflation-adjusted full funding level of $331 million, or $1 per capita.
This is a critical moment for helping ensure that creative professionals can get back to work in the wake of the economic devastation caused by the COVID-19 pandemic. The CARES Act and American Rescue Plan helped creative professionals get through the worst of the pandemic, and allowed them to start to get back on stage and return to sets, but the reality is that industry employment remains below pre-pandemic levels. Increased NEA, NEH, and CPB funding will help ensure that professionals working in the arts and public media can fully recover from the pandemic.
Passing an FY 2022 appropriations bill with increased funding for the NEA, NEH, and CPB will also help the economy as a whole continue to recover from the COVID-19 pandemic. Arts audiences spend an estimated $31.47 per person, per event, beyond the cost of admission, on lodging, restaurants, clothing, transportation, and other goods and services - the type of establishments that need the draw of more customers to their doorsteps.
In sum, increased funding for the NEA, NEH, and CPB is an investment that helps union creative professionals earn a living, while enriching the lives of everyday Americans and bolstering local economies. It is for this reason that I ask you to pass an FY22 appropriations bill that provides the NEA and NEH with $201 million in funding and the CPB with $565 million in funding.
If you have any questions, please contact DPE Assistant to the President/Legislative Director Michael Wasser at mwasser@dpeaflcio.org
Sincerely,
Jennifer Dorning, President
Statement for Record for House Committee on Small Business' The Power, Peril, and Promise of the Creative Economy Hearing
January 19, 2022
Dear Chairwoman Velázquez and Ranking Member Luetkemeyer,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I wish to share our perspective on the “power, peril, and promise” of the creative economy.
By way of introduction, DPE is a coalition of 24 national unions, 12 of which are unions representing professionals working in the arts, entertainment, and media industries. DPE coordinates activities among these 12 unions, including advocating for shared policy priorities. These unions’ members work in nearly every part of the creative economy - from the bright lights of Broadway to the regional theaters of the Midwest to the soundstages of Hollywood, and the big cities and small towns in between. They are actors, camera operators, cinematographers, costumers, craftspeople, choreographers, dancers, directors, editors, instrumentalists, make-up artists, musicians, performers, stagehands, variety artists, writers, singers, stage managers, and many other professions.
Union creative professionals help power the creative sector, which is responsible for more than 5 million jobs, over four percent of the United States’ GDP, and a positive trade balance. In addition, the creative economy has a positive economic spillover effect for local economies. Research indicates that audiences spend an estimated $31.47 per person, per event, beyond the cost of admission, on lodging, restaurants, clothing, transportation, and other goods and services. Indeed, many of these establishments benefiting from the extra audience spending are likely to be small businesses.
The members of DPE’s affiliate unions in the arts, entertainment, and media industries are also proud that, through collective bargaining, they have helped create a sector where people can work in W-2 jobs that provide family-supporting pay; affordable, quality healthcare; retirement security; and safe working conditions. These standards were not won overnight or handed down benevolently, but, rather, they were achieved through years of creative professionals coming together to earn a fair return on their work. Which is why Congress must strengthen and promote worker protections, including the right to organize and collectively bargain with employers.
While the creative sector is typically an economic powerhouse, the reality is that the COVID-19 pandemic caused economic devastation. Most creative professionals work in public venues and on job sites requiring close personal contact. Some continued to work during the pandemic. However, the majority of creative professionals were among the first to lose their jobs at the pandemic’s outset, and they have been among the last to return to work. During this surge of the latest variant, an increasing number of live events have been cancelled or postponed, thereby keeping many creative professionals out of work.
The CARES Act and the American Rescue Plan were invaluable lifelines for union creative professionals, helping them to weather the worst of the pandemic. In particular, I wish to thank the House Small Business Committee for passing policies that helped union creative professionals impacted by the COVID-19 pandemic. Expanding the Paycheck Protection Program (PPP) to labor unions impacted by the pandemic ensured that unions could keep their employees on the job providing critical member services. Throughout the pandemic, despite declining and sometimes no revenue, DPE’s affiliate unions committed resources, including staff time, to ensuring that their members could navigate complex state unemployment systems, find rental and mortgage payment assistance, and have access to basic mental health services, among other support functions. DPE’s affiliate unions also continued to negotiate collective bargaining agreements and work with employers on plans for members to safely return to work.
Looking forward, there are meaningful actions Congress can take to help the creative sector continue to recover from the economic impact of the COVID-19 pandemic and resume its positive impact on the American economy.
Congress should pass H.R. 4750, the Performing Artist Tax Parity Act (PATPA). Introduced by Reps. Judy Chu (D-CA) and Vern Buchanan (R-FL), this bipartisan legislation would update the Qualified Performing Artist (QPA) deduction to correct an unintended consequence of tax reform that has caused a drastic tax increase for middle class creative professionals. QPA is a provision of the tax law that allows certain performing artists the option to take an “above the line” deduction for expenses incurred in the course of their employment. Modernizing this deduction will help low-income and middle-class creative professionals seek employment.
Congress should also pass a Fiscal Year (FY) 2022 appropriations bill that funds the National Endowment for the Arts (NEA) and the National Endowment for Humanities (NEH) at $201 million each and the Corporation for Public Broadcasting (CPB) at $565 million. Many union creative professionals earn their living working on nonprofit productions and in performances that receive funding from the NEA, NEH, and CPB. Through grants, seed money, and technical support, these agencies help ensure that Americans of all means, geographies, and abilities have access to artistic and educational content. NEA, NEH, and CPB-funded programs help veterans heal from the invisible scars of war, inspire the next generation of creators and innovators, and deliver content that unites people across small towns and big cities. In addition, the nonprofit arts sector is a proving ground where people wanting to work in the commercial parts of the arts, entertainment, and media industries can establish their careers. These funding levels are also an important step toward restoring the NEA to an inflation-adjusted full funding level of $331 million, or $1 per capita.
DPE and our affiliate unions in the arts, entertainment, and media industries believe now is also the time for smart policies that can aid our ongoing pursuit of a more diverse, representative creative sector. Enclosed is our “Policy Agenda for Advancing Diversity, Equity, and Inclusion in the Arts, Entertainment, and Media Industries,” which contains policy solutions aimed at creating diverse talent pipelines, incentivizing diversity in hiring, and supporting collective bargaining that will help our workplaces and the creative industries move forward. Equity and inclusion are essential, not only as a matter of doing what is right, but also for the long-term sustainability of the creative sector, which is why we are committed to pushing the arts, entertainment, and media industries to create more and better jobs for underrepresented people.
In closing, the creative sector is a source of pride for America, both culturally and economically. Creative industries bring Americans together and put them to work in good-paying, family-supporting jobs. DPE’s affiliate unions in the arts, entertainment, and media industries are proud of their members’ contributions to the sector’s success. I again thank the Committee for holding this important hearing, and urge its members to recognize that policies supporting creative professionals benefit the sector and the economy as a whole.
If you have any questions, please contact DPE Assistant to the President/Legislative Director, Michael Wasser, at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
Attachment: Policy Agenda for Advancing Diversity, Equity, and Inclusion in the Arts, Entertainment, and Media Industries
Letter in Support of the Performing Artist Tax Parity Act
Re: S. 2872/H.R. 4750, the Performing Artist Tax Parity Act
November 22, 2021
Dear Senators and Representatives,
On behalf of the 24 national unions in the Department for Professional Employees, AFL-CIO (DPE), I strongly urge you to co-sponsor S. 2872/H.R. 4750, the Performing Artist Tax Parity Act (PATPA), and vote for the bill on the floor. Introduced by Sens. Mark Warner (D-VA) and Bill Hagerty (R-TN) in the Senate and Reps. Judy Chu (D-CA) and Vern Buchanan (R-FL) in the House, this bipartisan legislation would update the Qualified Performing Artist (QPA) deduction to correct an unintended consequence of the 2017 Tax Cuts and Jobs Act that has caused a drastic tax increase for middle class creative professionals.
Actors, stage managers, dancers, musicians, cinematographers, and many other creative professionals spend 20 to 30 percent of their income on necessary expenses to secure and maintain employment, including travel to auditions, talent agents, and camera equipment. Prior to the 2017 Tax Cuts and Jobs Act, these creators could claim miscellaneous itemized deductions for these business expenses. Without the ability to deduct these expenses, middle class creative professionals have experienced significant tax increases and struggled to make ends meet even before the COVID-19 pandemic shut down nearly all of the arts and entertainment industries.
PATPA would restore tax fairness for middle class creative professionals by updating the eligibility threshold for the QPA deduction. QPA is a provision of the tax law that allows certain performing artists the option to take an “above the line” deduction for expenses incurred in the course of their employment. Currently the adjusted gross income threshold for the QPA deduction is $16,000, a level unchanged since QPA’s inception in 1986. PATPA would raise the threshold to $100,000 for single taxpayers and $200,000 for joint filers, and also add a built-in phase out to help transition the taxpayer out of the deduction.
The ability to claim the QPA deduction would have a meaningful impact on the lives of union creative professionals and their families. According to information from the Volunteer Income Tax Assistance (VITA) program, a Pennsylvania sound engineer would realize a tax savings of over $4,500 under PATPA. A Nevada actor would pay $1,500 less in taxes. A New York musician would save $3,000. This is money that these middle class professionals can put toward the next month’s rent, putting food on the table, and contributing to their local economies.
If you have any questions, please contact DPE Assistant to the President/Legislative Director Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
Creative Professionals’ Priorities for FY 2022 Budget Reconciliation Process
August 23, 2021
Union creative professionals strongly support the Fiscal Year 2022 Budget Resolution (S. Con. Res. 14), which will allow for the largest investment in working Americans since the New Deal. Among the needed investments, this budget boosts America’s care infrastructure, expands Medicare coverage and eligibility, and establishes universal pre-K for 3- and 4-year-olds. Each will improve the lives of creative professionals and their families.
Along with investing in a prosperous future for our members and their families, we urge Congress to use the forthcoming reconciliation process as a vehicle to help creative professionals make a full recovery from the COVID-19 pandemic’s economic devastation. The arts, entertainment, and media industries help power a sector that in normal times employs more than five million people and is responsible for over four percent of the United States’ GDP and a positive trade balance. However, the sector has lost over $14 billion in economic activity in the past year because of the pandemic.[i] While some of our unions’ members have been able to resume their careers, many creative professionals, especially those who work in live events, are still unable to return safely to their jobs. In addition, the Delta variant’s emergence is leading every day to more cancelled and postponed events, further denying many creative professionals the opportunity to get back to work.
The following priorities are of paramount importance for union creative professionals in the forthcoming budget reconciliation package:
Reform labor law and support union jobs
The experience of union creative professionals demonstrates that working people do better when they can negotiate collectively for better pay and improved working conditions. Unfortunately, in too many instances, employers are able to violate the NLRA and deny professionals their right to form a union with their colleagues. The Protecting the Right to Organize (PRO) Act will help ensure that all professionals can achieve their right to join together in union and negotiate collectively with their employers to improve their lives and their workplaces. Recognizing the importance of good, union jobs for our economy, Congress should also set policies that support union members.
Pass the Protecting the Right to Organize (PRO) Act.
Allow union members to deduct the cost of union dues from their taxes.
Make professionals who are forced to go on strike or locked out by their employers eligible for unemployment insurance benefits.
Extend COVID-19 unemployment insurance (UI) programs and reform the UI system for the next economic crisis
While optimistic that our members will fully return to work eventually, the COVID-19 pandemic’s impact on the arts, entertainment, and media industries continues as employment remains below March 2020 levels. Continuing COVID-19 UI programs is critical for creative professionals who lost work through no fault of their own and remain in need of relief as they wait for employers to call them back to work.
At the same time, Congress should act now to enact comprehensive UI reform that offers uniform national standards to address benefit adequacy, benefit duration, and expanded eligibility. Workers who work in multiple states – which is common in entertainment – should be able to have their income easily aggregated for benefit amount calculations. Congress should also set a national standard on how residual income, part-time work income, multiple income streams, severance benefits, retirement, and disability income affect weekly benefit eligibility and payments.
The ability of 26 governors to unilaterally shut down the very programs that were created to counteract the inadequacies of state UI programs should serve as a powerful impetus to implement reforms.
Extend Pandemic Emergency Unemployment Compensation (PEUC) and Pandemic Unemployment Assistance (PUA) past their proposed September 6, 2021 expiration date to the end of 2021.
Support the comprehensive UI reforms proposed in President Biden’s American Families Plan and by Senators Wyden and Bennet.
Preserve access to affordable health care
Our members are proud to earn their health care through employment and their union health care plans. Unfortunately, the near total shutdown of the live performing arts and event sector means that it will be months before many work enough to regain their union health care. While the COBRA subsidy helped members maintain continuity of care and helped stabilize many health funds, that program is temporary in nature and expires in September. In the meantime, the expanded Affordable Care Act subsidies in the American Rescue Plan are a critical lifeline for many middle-class creative professionals who will need a transition back to their traditional health care plans. They should be extended for at least two more years.
Extend the American Rescue Plan’s Affordable Care Act subsidies for at least two additional years.
Create a national paid family and medical leave program
In crafting a national paid family and medical leave program, we urge Congress to accommodate the unique work patterns of our members to ensure they are not left out of this important care infrastructure. Work in the arts, entertainment, and media industries is “gig” based, meaning, in a given year, most creative professionals will work several W-2 jobs for multiple employers, potentially in more than one state. Some creative professionals may also earn income through 1099 arrangements or a combination of W-2 and 1099 work.
Establish a national paid family and medical leave program that considers the unique nature of the arts, entertainment, and media industries.
Protect the dissemination of trusted, local news
The COVID-19 pandemic has underscored the essential work that journalists and other media professionals do to keep Americans reliably informed. It’s critical that we keep these hard-working individuals, including members of our unions, on the job at a time when local coverage is critical to public safety.
Pass the Local Journalism Sustainability Act.
Looking forward, we urge Congress to include the bipartisan Performing Artist Tax Parity Act in any tax package that comes together for a vote this year. This legislation would update the Qualified Performing Artist (QPA) deduction to correct an unintended consequence of the 2017 Tax Cut and Jobs Act that has caused a drastic tax increase for middle class creative professionals.
[i] Americans for the Arts. (2020) “The Economic Impact of Coronavirus (COVID-19) on the Arts and Cultural Sector.” Retrieved on November 9, 2020 from https://www.americansforthearts.org/by-topic/disaster-preparedness/the-economic-impact-of-coronavirus-on-the-arts-and-culture-sector.