Issue 276,  published September 29, 2020

Fair Trade

This one is wonky as all hell, but I think it’s an important issue, so I’ll try to keep it smooth. Earlier this month, the Association of Independents in Radio — better known as AIR Media — recently updated its “Code of Fair Practices for Working with Independent Audio Professionals” document, which provides guidance on what independent producers should consider when approaching work contracts offered to them, particularly from big organizations.

The document is worth a scan, especially if you’re finding yourself newly working as an independent contractor these days, but I was curious about what prompted the adjustments to the code. Was AIR seeing a malignant trend pop up in the podcast labor marketplace? I put the question to Amanda Hickman, the managing director at AIR, and as it turns out, there was.

Hickman tells me that AIR had been getting more requests for insight lately about seemingly imbalanced work contracts. Specifically, members have been reaching out about agreements that ask way too much of the contractor relative to the actual compensation for the gig. “We’re talking about modest short-term contracts — maybe six episodes for two or three months of work that don’t even pay in the high five figures — that come with massive exclusive rights clauses,” she told me. Furthermore, because of those modest compensations, producers are put in a situation where it’s not even worthwhile to hire a lawyer to go over those contracts. “That puts independent contractors in a pretty untenable position,” said Hickman.

And of course, it’s really important for these contracts to be professionally reviewed, if only to identify demands that can impede the independent producer’s ability to get more work. Hickman highlighted two types of clauses in particular that she’s seen disproportionately applied in contracts in recent months: non-competition clauses and non-solicitation clauses.

The situation with non-competition clauses is pretty straightforward to lay out: sometimes, they’ve been applied too severely relative to the compensation. More generally, though, there is also a problem of broader conceptual mismatch when it comes to the general idea of non-competition in the podcast labor market. “A lot of these clauses have been thrown out in court rulings, but at least in theory, if you’re a programmer at Uber, for example, you can get another equivalent job within the tech industry and not directly compete with Uber,” said Hickman. “But that’s not really the case with podcasting, because every podcast is effectively competing with every other podcast.”

The difficulty with non-solicitation clauses in podcasting requires more background. “The intention of a non-solicitation clause is to prevent employees from recruiting their whole team to go with them to a competing agency, which isn’t crazy to me,” said Hickman. But the problem with applying these clauses to podcasting, she says, is that they’re often remarkably broad. A typical non-solicitation clause will include vendors, clients and other contractors in the list, effectively prohibiting the independent contractor from working in the podcast business. Podcasting is still a small industry, and if you’re in the business of making shows for specific buyers like Spotify and Stitcher, the application of a non-solicitation clause — even if it’s just for a year — could rule out any new work.

My gut feeling is that there’s a bigger story somewhere in here about how these specific problems might be the result of taking contracts in other media industries (typically ones that are richer and more developed) and slapping them wholesale onto podcasting without much consideration of the specific conditions of the industry. But Hickman would rather the attention be focused on a more basic problem. “Independent producers and editors wind up spending a lot of time arguing about unrealistic contract language,” she said. “I’d rather see them put that energy into making amazing podcasts.”

 

I run this thing.