WORK

NOT
PLAY
The rise in
Low Pay and
No Pay work
in the
entertainment
industries
Foreword by Kerry McCarthy,
Chair, Performers’ Alliance All-Party Parliamentary Group
Within this already precarious working environment, which
has never been hugely well paid other than for the most
successful, there have been worrying developments: from
piracy, illegal downloading and other ways of obtaining
creative works at little or no cost to the consumer and little
or no reward for the artist, to the growing practice of asking
musicians, actors and writers to perform, arrange music or
write pilots and scripts for free.
It is vital we get a grip on this situation, to ensure that work
in this sector doesn’t become the preserve of the amateur
or the independently-funded, or only those from privileged
backgrounds. I also believe it is vital to the future of new
Kerry McCarthy MP music, drama and culture that new and emerging artists can
CHAIR, PERFORMERS’ survive financially – and this is something which should
ALLIANCE APPG matter to all of us.
The Performers’ Alliance All Party Parliamentary group was registered in March 2013,
and follows on from the work of the Performers’ Alliance Parliamentary Group, which
was formed in 2006. It aims to provide a dialogue between performers and writers in
the creative industries and politicians from all parties on arts-related issues; with its
focus firmly on the people and employees who deliver the arts.
OTHER
OFFICERS OF
THE GROUP:
John Lord Clement Michael Pete Wishart
Whittingdale Jones Connarty MP
OBE MP CBE MP
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INTRODUCTION
The Performers’ Alliance
comprises Equity,
the Musicians Union
and the Writers Guild
of Great Britain.
Equity is the union for actors,
performers, singers and other creative
workers representing over 36,800
people working in the UK’s film,
television, theatre, dance, variety and
music industries. Our membership
includes actors, singers, dancers, circus
artists, theatre directors and many other
performers and creative workers.
The Musicians’ Union (MU) represents
over 30,000 musicians working in all genres
of music. As well as negotiating on behalf
of our members with all the major employers
in the industry, we also offer a range of
services tailored for the self-employed by
providing assistance for professional and
student musicians of all ages.
The creative economy is one of the UK’s
success stories. In 2011, the arts and
cultural sector accounted for around 0.4%
of UK GDP (Gross Domestic Product) and
0.4% of GVA (Gross Value Added) and
John Smith Christine Payne
General Secretary General Secretary
Musicians’ Union Equity
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0.7% of all VAT, corporation tax, income
taxes and NI contributions collected by
HMRC - equivalent to £1.7bn in total.
The availability of a highly skilled and
innovative workforce is a core component
of the current and future health of the
UK’s creative economy. Those working
in the creative industries understand that
it is important for employers to preserve
a degree of flexibility with respect to the
mobility of its workforce and the short-
term nature of engagements. This must,
however, be balanced against ensuring that
performers, from all backgrounds, are able to
build sustainable careers in the industry.
Our members have told us that low pay and
no pay work is a growing problem in the
creative industries and that action must be
taken before the culture of working for free
becomes so endemic that many artists are
forced out of their profession.
We thank the Performers’ Alliance All-Party
Parliamentary Group for their hard work and
commitment to raising this issue and hope
that the evidence and suggestions contained
in this report can helpfully contribute to the
debate and provide ideas for change.
Bernie Corbett
General Secretary
Writers’ Guild of Great Britain
 The employment context for
writers, performers, musicians
and other creative workers
The MU Work Not Play campaign (www.
worknotplay.co.uk) catalogues a number of
accounts of musicians being expected to
work for free. The aim of the campaign is to
challenge the widespread view that being a
professional musician is not a ‘proper’ job,
and that musicians can therefore be expected
to work for free. The website also highlights
and challenges venues and organisations thatDespite Equity’s success in concluding
exploit musicians. collective agreements covering key sectors
All of this is particularly
pertinent given that recent
research by the MU The campaign
demonstrated that more challenge’s the
than half of professional view that being
musicians work for less
than £20k per year and
a professional
that 60% have worked musician is not a perceptions of the industry
for free over the past year. ‘proper’ job
It also showed that 34% of
professional musicians have to
hold down other jobs in order to survive
as a musician, which does not bode well for
the future.
As well as the massive cuts in Arts Funding,
one of the biggest problems facing
professional musicians in the live sector at
the moment is the increasing amount of work
they are being asked to undertake for no fee.
This is not just a case of individual venues
not offering pay – in the summer of 2012 we
saw widespread attempts by LOCOG
to secure the services of professional
musicians without pay.
Equity’s most recent survey of members
found that 9.6% earn nothing from their work
in the industry, and over 69% earned either
nothing or under £10k per year. Two thirds
of performers and creative workers say they
have had to turn down work because the pay
on offer was too low. Of these, 72% say they
turned down work in fringe theatre and 36%
turned down work in Independent Theatre.
Younger members tell us they expect to work
for up to two years at the start of their careers.
of the entertainment industry – TV,
film, theatre and radio – low pay
and in some cases exploitation
of workers in the sector is
increasing. Partly this is to do
with a decrease in funding
for organisations, but there
are also cultural factors and
that need to be tackled.
Where possible, Equity seeks to
reach new and adaptable agreements with
producers and employers in order to ensure
compliance with National Minimum Wage
legislation, particularly in areas such as fringe
theatre. However, the amount of non paid work
is growing and an ever increasing proportion
of Equity members report that they are being
asked to work for free on a frequent basis.
Low pay and no pay work is especially
noticeable in areas where some of the lowest
Equity minimum rates are already in existence,
for example for background performers (or
walk-on artists) working in film and television.

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ISSUES
1. Charities and
charitable status
There is currently an exemption (section 44 of
the National Minimum Wage Act) which arts
organisations and films schools (which are
registered charities) have called upon in order
to avoid paying the National Minimum Wage
to performers. Equity has sought to highlight
the obligations of employers and challenged
them to provide evidence that such work
is truly “voluntary” under section 44 of the
National Minimum Wage Act. In the absence
of such evidence we have requested that the
performers be paid at least the NMW rate.
This is often successful and has led to a
number of significant productions reversing
their proposals to offer unpaid work, however
this approach is reactive in nature and means
that the union is limited to helping individuals
within the resources available to the union.
MU members have particular problems
being asked to play for free at charitable and
fundraising events. It is extremely unfair to
put professional musicians into a situation
where they are emotionally blackmailed into
working for no fee and are asked to give their
services to a good cause. This is particularly
unjust when others associated with the event,
such as venue staff, lawyers and caterers, are
being paid.
The following examples provide a
snapshot of performers’ experiences
of the use of charitable status and
volunteering arrangements:
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CAFÉ ROUGE: A number of MU
members were asked to play for free at
the Café Rouge ‘Vive la Musique’ charity
evenings in September 2012. When the MU
investigated, it transpired that the Café Rouge
catering and serving staff were being paid on
these nights, and that only £10 of the £30
ticket price was going to charity.
FILM SCHOOLS: In early 2011
Equity wrote to the UK’s film schools about
the abuse of volunteering arrangements and
has sought to promulgate the union’s own
model agreement for use by student film-
makers. Despite this approach there has been
slow progress towards resolving this issue.
MU MEMBER CASE STUDY
Sean Amor
“My band agreed to play a gig for a local
charity who do a very good job of helping
people in our town. The charity made £3k on
the day, which was great. The pub running
the event must have made three or four
times the amount the charity did. The staff
got paid, the security got paid, the sound
guys got paid, the burger van got paid, the
guy running the kids rides got paid, and
the candy floss man got paid…but guess
who was expected to donate their time for
nothing? Ah yes, the musicians. Now seeing
as this was billed as a music festival, and
presumably people were attending to listen
to the music not to buy candy floss, how
come the musicians were the only ones
expected to provide their services for free?
After the gig I complained and all our future
bookings at that pub were cancelled.”
Small theatres can
pay performers to an
industry standard, such
as the Park Theatre
in London
2. Growth of Fringe theatre:
Some performers perceive that working in
small scale and fringe theatre can be career
enhancing. In recognition of this, Equity has
a Fringe contract based on the National
Minimum Wage which it recommends
to members and encourages all fringe
producers to use. Equity has also sought
to encourage the development of a fringe
managers association; now established
named the Society of Independent Theatres
(SIT). It is hoped that this will be a means to
provide information for its members to share
information and to develop more consistent
practices and policies including the Fringe
Agreement.
It is critical that producers have a working
industrial relationship with entertainment
unions, in order to improve working conditions
in this growing sector.
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The following case studies illustrate the
experiences of unions organising in the
fringe and immersive theatre sectors:
The Print Room is a small theatre based in
Notting Hill which was established in 2011.
The theatre uses a full national collective
agreement (ITC), with minimal variation
from the standard. They apply for and
attract only occasional funding for particular
projects. Otherwise the theatre is funded to
a sustainable level through philanthropy and
charitable donations.
They very clearly show that it is not easy, but
possible for small theatres to attract funding
to a level that they can pay performers to an
industry standard. A not dissimilar deal, based
on the Commercial Theatre Agreement,
is being used at the newly opened
Park Theatre in Finsbury Park.
 Fernanda Prata
and Jesse Kovarsky
in Punchdrunk’s The
Drowned Man: A
Hollywood Fable
The Kings Head is a prominent example of
an unfunded fringe theatre, working on a small
scale, with few commercial transfers, who use
an Equity Agreement.
Although significantly lower than the standard
Equity minima the rates paid by this venue
are above the National Minimum Wage and
subject to frequent revision. Rights under the
Working Time Directive and other legislation
are also respected, and industry standard
practice for breaks, overtime and other rights
are enforced. This proves very clearly that it is
possible for small, unfunded pub theatres to
engage on a professional and legal basis.
Immersive theatre productions have
Image: Birgit & Ralf
become highly fashionable among critics and
sought after engagements among performers.
Those companies who have a union
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agreement, or even a positive dialogue with
the union are much better equipped to deal
with concerns when they arise and engage
in a dialogue with concerned performers.
A number of producers do this on Equity
engagements or on above Equity terms; such
as Punchdrunk and Dreamthinkspeak,
however others actively avoid the Union.
You Me Bum Bum Train engage exclusively
volunteers to do what should be paid
professional work in the main. They refuse to
engage with the Union in any meaningful way
and have a business model dependent on the
use of volunteer labour (which is largely highly
skilled, being sought from the ranks of paid
professionals). Only via established theatres
with whom we have an industrial relationship
have we managed to have any contact with
the company.
3. Enforcement
Across the economy many workers with
minimum wage problems are often too
scared to assert their rights. Enforcement of
employment rights would be greatly enhanced
if the Government removed the barrier of
Employment Tribunals only hearing cases
brought by individual workers and enabled
unions to launch representative actions. This
change would be particularly welcome in
the entertainment industry, where short term
contracts and other practices contribute to
the insecurity and fear felt by workers.
For some time entertainment unions have
also been concerned about the lack of
enforcement activity currently undertaken by
HMRC in the creative industries. Enforcement
of National Minimum Wage legislation in the
sector is also bound up with other regulations
and bodies, specifically agencies legislation
and the Employment Agencies Standards
Inspectorate. It is disappointing that in its
recent consultation on the reform of agency
legislation, BIS has not recommended that
EASI be given similar powers to HMRC and
other agencies in order to properly investigate
and sanction rogue agencies.
There have been two recent landmark
judgements at the Employment Tribunal
concerning non payment of the National
Minimum Wage to performers:
Equity recently supported a successful
CASE
case taken by a group of members
ONE
against a fringe theatre company. In
the first ruling of its kind, the pre hearing of the
Employment Tribunal found that the five actors
concerned were entitled to make a claim for
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the National Minimum Wage and payment in
lieu of holiday for this particular fringe theatre
show. The actors in this case were found to be
workers as per the definitions of the National
Minimum Wage Act and Regulation 2 of the
Working Time Regulations 1998, despite the
fact the engagement was advertised as a profit
share by the producers.
An actor, Mr T Ingham had been
CASE
TWO engaged by a producer, Summertime
Pictures, for a short film and although
no money was offered for the engagement
itself, representations were made about the
substantial sums that would follow due to the
net profit participation arrangement, which
formed part of the contract. Obviously no
such sums can ever be guaranteed. These
circumstances are not unusual although it
is unusual for a performer to want to come
forward with a claim against their employer.
Equity brought the claim to the ET in August
2012 on the basis of the National Minimum
Wage Act 1998, and the Regulations made
under it. Crucially, the Judge (Judge Holmes)
stated in his judgement in December 2012 that
he was satisfied that the engagement was a
contract of employment. The actor concerned
received judgment in his favour and was awarded
the sum of £1,033.60 in respect of unlawful
deduction from wages and a further £124.76 in
respect of pay in lieu of untaken holiday.
Following these two cases there has been
a substantial increase in demand from
performers, producers and managers for clear
industry guidance. We therefore believe it
would be opportune to issue such guidance
now, as it is likely that it would be better and
more widely received than previously.
4. The ‘Exposure’ Excuse
The people who should be employing
performers on a fair wage often argue that
it is good ‘exposure’ for them and that
therefore they need no fee. These ‘employers’
range from small venue owners and festival
organisers right through to Local Authorities,
political parties and national bodies such as
LOCOG.
2012 OLYMPICS AND PARALYMPICS
There were 700 paid performers engaged
over the four opening and closing ceremonies
for the London Olympics and Paralympics.
There was an Equity supported contract for
these paid performers and also a set of tight
guidelines for the 10,000 volunteers. These
guidelines ensured that they would not have
onerous responsibilities, akin to an employee,
placed on them, that paid performers would
lead general movement and volunteers would
not perform individual movement.
On the musician side, although LOCOG had
an agreement with the MU that they would
not be paying volunteers (amateur musicians)
or headline acts but that all other professional
musicians would be paid, we didn’t come
across a single professional musician
who was paid to perform by LOCOG.
MU members were asked to work for free
repeatedly and were told that there ‘was no
budget for music at the Olympic Games.’
One band was approached by LOCOG to do
15 gigs and told that it was LOCOG’s policy
not to pay the musicians, a leading London
based management company (therefore
representing professionals) was approached
to find artists to play ‘on a voluntary basis’,
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top professional bands were approached and Action is needed to tackle the perception
asked to play for free for ‘exposure.’ that young performers and writers can and
should work for free at the start of their
Had the bands in question been asked to careers or in order to gain experience.
star in the opening or closing ceremonies,
then the exposure would have been good. Given the precarious nature of the
But most of the ‘free work’ was taking place entertainment industries, there should be
in the Olympics Village or at gigs to celebrate better enforcement of National Minimum
Image: Birgit & Ralf
the Olympics. Wage and other employment rights by
HMRC & other agencies.
MU MEMBER CASE STUDY
A commitment that no Government
Tom Lukas
Conclusions department or agency will engage
“I’m getting asked to do more and more of Performers, writers and other creative professional performers on a no fee basis.
these ‘showcase’ nights, e.g, a night of 5 to 6 workers are increasingly being expected to
free acts, that play for free in hope of getting work for free in the entertainment industry – Given the complex nature of the legal
something out of it, but nothing ever does, apart an industry that is already characterised by framework that covers workers and low pay
from the venue getting a free night out of us.” low pay for many workers. in the entertainment industry, sector specific
advice is essential. In its 2010 Report the
Established performers and writers Low Pay Commission recommended “that the
MU MEMBER CASE STUDY
are also frequently asked to work for free Government produces, in conjunction with
* With reference to the 1980 Unesco Recommendation concerning the Status of the Artist and the
Pete Martelle
for organisations including fringe theatre interested parties, sector specific guidance
“My cover function band have had various companies, charities and commercial on the National Minimum Wage for the
Conclusions from the World Congress on the Status of the Artist held in Paris, June 1997
dealings with companies expecting free work, businesses inside and outside the creative entertainment sector.” LPC Report, para 4.50,
one events company in particular coaxed industries. 2010. This advice should be easily accessible
us into a free gig with promises of future on Government websites.
work, and sure enough none came in the 10 Performers frequently face requests to
months since that gig.” work for free at public events including the The Government should undertake a
2012 Olympics, with the excuse that it will be Review to examine charitable and volunteering
good exposure for them. arrangements and section 44 of the National
MU MEMBER CASE STUDY
Minimum Wage Act and the use of such
Andy Dovey
Recommendations: exemptions by organisations to avoid payment
“About 2 weeks before an event we were told In tackling the low pay and no pay culture of the National Minimum Wage to performers.
all the bands were expected to play for free. in the entertainment industry, there needs to
We asked if the PA hire company, the staging be greater recognition of the status of writers, Many workers with minimum wage
company, the lighting company, the security artists and performers as workers, particularly problems are too scared to enforce their rights.
people, the firework company, the caterers, by advice services such as the Department Enforcement of employment rights would be
etc, were working for free and were told; “Of for Business Pay and Rights Helpline who greatly enhanced if the Government removed
course not. But they aren’t doing it for the have in the past advised businesses that the barrier of Employment Tribunals only
exposure like you are”. performers are not workers.* hearing cases brought by individual workers.
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