FAQs on the Rights of Creators to Act Collectively

Creators Together is a campaign organized by a multi-industry coalition of professional creator organizations to advocate for the rights of professional freelance creators to engage in collective economic action, including negotiating as a group with the large corporations that use our work. Our coalition represents many tens of thousands of working professional creators. We represent writers, photographers, playwrights, graphic artists, musicians, songwriters, choreographers, and several other types of creative workers. Our primary goal is to reduce the economic disparities that freelance creators face in the market for our labor by promoting legislative and other solutions to allow us to act and negotiate collectively with those who employ our services and buy our work. Nothing less than the economic survival of our creative professions is at stake.

We simply mean the right to work together for our mutual benefit in economic matters. This includes the ability to negotiate contract terms as a group, set minimum rates and standards for our industries, boycott bad actors, and go on strike.

Creators have always faced challenges in earning a sustainable living, but the explosive growth of the internet has reshaped the creative economy and made it harder than ever for us to get by. Monopsonies—companies that are the sole, or one of only a few, buyers in a market—now control distribution in many of our industries, and they have directly or indirectly pushed down the prices for creative work, while taking more than their fair share. Some of these companies earn staggering amounts of money from the copyrightable content we create. The result is that our incomes have declined significantly, and thousands of talented workers are being forced out of their professions.

The many hundreds of thousands of highly educated, talented, and industrious freelance workers who power the creative industries have negligible—if any—bargaining power. We work under the terms of one-sided agreements and lack the resources to enforce our rights. We face challenges in getting paid on time—or getting paid at all. Individually, we have no ability to push back against onerous terms, and antitrust laws have been understood to bar us from working collectively to win fairer contracts. At the same time, we lack any of the traditional protections employees are afforded under the law: We are not entitled to health insurance benefits, paid time off, minimum wage, workers compensation, or unemployment insurance.

The people whose talents and hard work deliver artistic beauty, ideas, and insight to society deserve better. We deserve the right to work together and engage in collective activity to improve our economic condition without risking suit for antitrust violations.

No. Collective action and even collective bargaining do not require forming unions. Workers do not need to be in a union to engage in collective bargaining, and indeed, many of us do not envision exercising our rights through official unions—those organizations recognized by the National Labor Relations Board (NLRB) and protected under the National Labor Relations Act (NLRA).

The right to act collectively would simply allow freelance creators to share information about financial terms and to speak out collectively for or against certain terms or treatment  without risking an antitrust suit. Creator groups could set suggested minimums for different types of writing or performance services, or call for boycotts of bad actors, without fear of being sued for antitrust violations. They would not need to unionize to engage in these activities.

As a second step, the right to act collectively would also allow (but not require) freelance creators to form or join unions—like those used by the motion picture–related guilds—to make collective bargaining agreements with single or industry-wide employers. Whether or not it would make sense for any particular group of creative freelancers to form collective bargaining agreements—and the nature of those agreements—would vary considerably among sectors and employers.

We use the term freelancer to mean people who are hired as independent contractors (on a 1099 basis) by one or more businesses to provide services (e.g., creating copyrightable material) for pay, generally to a specific group of buyers, as opposed to the general public. In the case of creative professionals, freelancers include authors, freelance journalists, playwrights, musicians, designers, photographers, and others who hire themselves out to the buyers of their creative work in their respective industries (e.g., publishers, theatrical producers). We do not use the term to include independent contractors such as doctors, lawyers, home contractors, electricians, plumbers, and others who are self-employed, often have staff, set their own rates, and provide services to the general public.

Despite their differences, the law treats freelancers the same as other independent contractors, not recognizing the ways in which freelance work differs from other independent contractor professions and is often subject to monopsony pressures. This is because the law divides all individual workers into only two categories: employees and independent contractors, with all freelancers in the latter category. (To be clear, as we are using the terms, all freelancers are independent contractors, but not all independent contractors are freelancers.) Different laws and agencies have different definitions for independent contractors as compared to employees and use different tests to determine when a worker is an employee or an independent contractor, with most of the tests using versions of a multi-factor agency common law test.

Interestingly, the IRS defines independent contractors as: “People such as doctors, dentists, veterinarians, lawyers, accountants, contractors, subcontractors, public stenographers, or auctioneers who are in an independent trade, business, or profession in which they offer their services to the general public are generally independent contractors” (emphasis added). Despite the fact that the IRS treats freelancers as independent contractors, freelancers do not fit neatly within this definition because, as we discuss above, freelancers do not typically provide services to the general public, but rather to specific businesses who, in turn, determine rates of pay, akin to wages. Other independent contractors such as lawyers, doctors, and home contractors not only provide services to the public, but they also set their rates and other terms of their work. Further, freelancers, like employees, usually only have the ability to negotiate around the edges of a buyer’s offer and must accept other terms. These important differences between the economic realities of freelancers and independent contractors highlights the problem with treating them the same.

Under U.S. antitrust laws, collective economic activity by independent contractors can be construed as price-fixing and collusion. Antitrust law prohibits businesses from price-fixing and colluding with each other to manipulate the price of goods or services or other economic terms. The law has evolved to treat individual freelancers as independent businesses such as lawyers, doctors, and contractors, with the ability to set prices and rates and to negotiate on an equal footing with the buyers of their services and goods. This means that if we, as freelance workers, work together, for instance, to negotiate minimum pay or fight bad actors, we risk being sued by the government or a private party for colluding. The idea that freelancers—individual people working for hire—are equivalent to corporate entities in that they will harm markets by working together belies the economic reality of the markets for creative labor—where multi-billion-dollar monopsonies unilaterally dictate the terms of work and licensing.

We seek to pierce the legal fiction that puts us in the same category as big business and exposes us to private lawsuits and antitrust enforcement for collusion just for speaking or acting together with our colleagues. The false notion that freelance creators have leverage in markets dominated by mega corporations needs to be righted. Removing this misconception would allow for a full recognition of our rights as workers, helping to curb injustices such those witnessed during the COVID-19 pandemic, when creators faced serious challenges accessing unemployment benefits due to their status as 1099-based “independent contractors” (as opposed to traditional W-2 workers).

Employees have express collective bargaining rights under the NLRA. Enacted in 1935, the NLRA allows “employees”—as defined in the act—”the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” This allows employees to form unions, of course, but it also gives employees the right to engage in concerted activities for their mutual benefit without unions, including the ability to mutually agree on the minimum terms they are willing to work for, to boycott bad actors, to strike, and to collectively approach an employer to negotiate pay and other work terms.

The NLRA defines the term “employee” in the negative—i.e., by listing types of workers who are not employees. Among the workers excluded from the definition of “employee” are all independent contractors, including all freelancers.

However, prior to the passage of the NLRA, two separate antitrust statutes made laborers (rather than “employees”) exempt from the antitrust laws. The 1914 Clayton Antitrust Act states that, “[t]he labor of a human being is not a commodity or article of commerce” subject to antitrust law. The 1932 Norris-LaGuardia Act was even clearer, specifically allowing workers to collectively engage in labor disputes, broadly defined, including strikes, “regardless of whether or not the disputants stand in the proximate relation of employer and employee.”

A recent First Circuit case, Confederacion Hipica De P.R. v. Confederacion De Jinetes Puertorriquenos, 30 F4th 306 (1^st Cir. 2022), applied these older statutes to a dispute between freelance jockeys and the racetrack where they worked, holding that the Clayton Act and Norris-LaGuardia Act permitted the freelance jockeys to go on strike against the racetrack owner in a dispute over wages and working conditions. The court found that the jockeys were providing labor, and even though they were not employees covered by the NLRA, they could legally strike under the earlier, broader laws. It found that antitrust law’s labor exemption protects collective labor action when it arises “(1) out of the actions of a labor organization and undertaken, (2) during a labor dispute, (3) unilaterally, and (4) out of the self-interest of the labor organization.” The court distinguished antitrust law’s prohibition against “would-be competitors […] colluding to increase prices” from the right of laborers to act collectively to negotiate wages. Although this recent decision is a step forward towards charting the boundaries of collective action non-employees can legally engage in, it is governing law in only one circuit now. Its emphasis on labor could be deemed to exclude creative professionals who license their works.

Yes, in the European Union. In September 2022, the European Commission adopted new guidelines that exempt freelancers (termed “solo self-employed people” under the guidelines) from prohibitions against collective bargaining. The guidelines clarify that:

1. Competition law does not apply to solo self-employed people who are in a situation comparable to workers, including those who: (i) provide services exclusively or predominantly to one undertaking; (ii) work side-by-side with workers; and (iii) provide services to or through a digital platform.
2. The EU will not enforce competition rules against collective agreements made by solo self-employed people who are in a weak negotiating position, for instance, when facing an imbalance in bargaining power due to negotiations with economically stronger companies.

Freelance creators are not simply misclassified workers. We are professionals who earn money through our copyrights. As copyright owners, our value as workers derives from our copyrights. Classifying us as employees would deprive us of our copyrights because the copyright law treats any copyrightable material that an employee creates in the course of employment as a “work made for hire,” and deems the employer the author and owner of all works made for hire. Thus, if we were classified as employees, we would lose our copyrights, and it would upend the licensing systems on which we depend for our livelihoods.

There are many “gig” workers today who are also in dire need of employee-like protections and collective bargaining, and we stand by them in their fight for greater protections. But many of these workers are simply misclassified, meaning that their employers categorize them as 1099 independent contractors when they should be treated as W-2 employees. There are current federal and state legislative efforts underway to clarify worker classification laws so that the gig workers who should receive employee benefits (and their employers should be paying employment taxes) are given employee status. While we support these efforts, they do not help us or apply to us.

The Writers Guild of America, Directors Guild of America, International Alliance of Theatrical Stage Employees (IATSE), Alliance of Motion Picture and Television Producers (AMPTP), Animation Guild, Screen Actors Guild (SAG), American Federation of Television and Radio Artists (AFTRA), and other entertainment industry unions treat their creative workers as employees rather than as independent contractors. As such, they have clear collective bargaining rights under the NLRA. Each of the guilds/unions has collective bargaining agreements (CBAs) with production companies and other entities that hire the creative talent, and under those agreements, the production companies and other hiring entities take ownership of all rights in the creative contributions or works provided as “works made for hire.” In return, they generally pay the creators more, including paying residuals for multiple uses of the work under the CBAs. They also provide benefits such as health insurance. And because the creative workers are employees, they are entitled to state, local, and federal employee protections.

As discussed above, working as an employee and losing copyright ownership is not feasible for the many freelance creators who rely on the ability to license their works for multiple uses to earn a livable income. Unlike the motion picture, television, and related entertainment industries, most of the buyers of our work cannot afford, or will not agree, to pay the fair value to acquire all rights to our work. And unlike unionized workers in the entertainment sector, we generally cannot afford to work for just one employer at a time. We need the ability to retain our copyrights, while at the same time protecting ourselves through collective action.

Human civilizations are built on culture. Culture—as manifested in our arts—is the glue that holds us together, especially as we become more fragmented. As divided as Americans are today on so many issues, we still enjoy many of the same arts and entertainment. It behooves us to ensure that arts and literature that reflect our current experiences continue to be produced by the talented, trained artists and authors among us. If creators cannot afford to continue in their professions, our arts, entertainment, literature, and overall culture will wither, and our civilization will suffer.

Our economy would also take a hit. The creative sector is a vital part of our national economy, adding $TK billion in value to our economy per year.

We have drafted two different legislative proposals. One would simply exempt creators from antitrust law’s prohibition on collective bargaining. This law would remove the risk of antitrust actions if we were to work together to say no to certain terms, demand better pay, or boycott bad actors in our industries. The second proposal amends the NLRA to create a special category of “professional freelance creators” with the same rights of collective action as employees under Section 7 of the NLRA—namely “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Click here to read our draft amendment to the NLRA to allow freelance creators to collectively bargain (PDF).

Click here to read our proposed legislation concerning application of antitrust laws to the bargaining activities of freelance writers, artists, and songwriters (PDF).