The Authors Guild, on behalf of an informal coalition of creator organizations, filed comments on December 20, 2021, with the Federal Trade Commission and the Department of Justice’s Antitrust division arguing for collective bargaining rights on behalf of freelance authors, journalists, other text writers, songwriters, composers, lyricists, playwrights, librettists, illustrators, graphic designers, graphic artists, photographers, videographers, and other creative professionals. 

The coalition includes the Alliance of Women Film Composers, Authors Guild, Dramatists Guild of America, Graphic Artists Guild, Music Creators of North America, National Press Photographers Association, National Writers Union, Romance Writers of America, Society of Composers and Lyricists, and Songwriters Guild of America.

Why Creatives Need Collective Bargaining Rights 

• Freelance creative professionals provide their labor to bring artistic beauty, ideas, expertise, and insight to us all. They do this with no employee protections, benefits, minimum wage, the ability to collect unemployment benefits, or negotiate their contracts. At the same time, they create the content that sustains the industries of publishing, film, music, software, newspapers, and magazines, which together add more than $2.1 trillion in annual value to the U.S. GDP, about 12.52% of the U.S. economy, and directly employ more than 16.1 million workers, accounting for 8.14% of all U.S. employment.
• Freelance creatives overwhelmingly are underpaid and, as individuals, lack the power or influence to persuade these entities to pay more. 
• That these freelance creatives cannot collectively bargain creates an inequitable, two-tiered system in which those who receive W-2s instead of 1099s for their work can collectively bargain while the freelance creators cannot.  
• Without these creators, there would be no books or magazines to educate, inspire, and entertain us, songs to capture and reflect the most critical moments of our lives, art to make our hearts soar, or news to keep Americans informed, connected, and effective voters and citizens of the world.

Federal Labor and Antitrust Laws Must Be Revised

Antitrust laws and a lack of collective bargaining rights directly affect our members’ ability to earn a sustainable living through their creative work. In most creative fields today, industry consolidation and the domination of a handful of online distributors have vested excessive market power in the purchasers, publishers, and distributors of creative works. This results in a grotesquely imbalanced marketplace that negatively impacts the advance of both commerce and culture to the detriment of creators and consumers alike.

Moreover, enormous downstream pressure from internet monopsonies and monopolies has shrunk the number of buyers (and competition) for creative works. This lack of competition has, of course, increased the bargaining power of representatives and middle marketers, leading to a gradual erosion of contractual protections, benefits, and income for creators. What’s more, the same internet platforms that disrupted and reconfigured the markets with complete impunity, such as Amazon, Google, Apple, and Meta, now also function as publishing and production entities, directly competing with established publishers, record companies, image licensors, self-published creators, and other businesses engaged in artistic and cultural endeavors. These conglomerates favor their works on their platforms while increasing the pressure on creators to consent to diminished terms of remuneration, thus further artificially depressing earning power. 

Current labor and antitrust laws treat creative workers like they are businesses with the ability to negotiate freely and on even footing with the buyers of their services and creative works—a marketplace fiction with economically lethal consequences. Since many creative professionals work under independent contractor agreements and are classified as independent contractors rather than employees, they do not have collective bargaining rights and other standard employment benefits and face potential liability under the antitrust laws from acting together, in concert, to reject specific terms, demand better pay, or boycott bad actors.

What’s Next?

Winning collective bargaining rights for freelance creatives is the coalition’s top legislative priority in the near term. As such, we have drafted suggested legislative changes to the NLRA, a free-standing antitrust exemption bill, as well as amendments to the PRO Act, should it become a potential candidate for enactment at some point in the future. Each of these proposals would give creative freelance professionals the leverage they need to negotiate more fairly in a market dominated by a few large companies and internet platforms for whom the playing field is outrageously and favorably tilted.

For more information, please read the entire letter to the FTC and DOJ.