The Road From Here: Tom Buderwitz Responds to the Pro99 Alternative Intimate Theater Plan

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[dropcap]On[/dropcap] August 22, I was asked to participate at LA STAGE Alliance’s Town Hall panel discussion regarding Actors’ Equity’s new plan for Los Angeles intimate theater, and an announcement from a group of AEA members (and the Pro99 movement) of an alternate plan idea for community discussion. As a longtime collaborator in the Los Angeles theater community, I was happy to participate. I have designed over 275 productions nationally and locally, and at least 75 of those productions have been in many of Los Angeles’ intimate theaters over the past 30 years.

I have also been outspoken in recent years about how the old 99-Seat Plan needed to change. The old plan had no term limits and no enforced limits on who could use it. Los Angeles has seen the number of intimate theater producing entities grow from approximately 30-40 in 1989 to well over 200 in 2016. Today, about 70-80% of the theater in Los Angeles is produced at the 99-seat-and-under level. This is a very skewed balance compared to all of the other major U.S. theater cities. The old 99-Seat Plan had no incentives for theaters to grow and no stepping-stones to allow a small theater to move easily up to contract or into a larger house. It has also been far cheaper to produce at the 99-seat level because, with the old 99-Seat Plan, a producer didn’t have to pay actors for extensive rehearsal periods and only had to pay a minuscule stipend to them for their performances.

The new plan(s) as passed by Actors’ Equity Association Council last year (and set to go into effect this coming December 14) does include the welcome addition of a Small Professional Theater (SPT) contract now available in Los Angeles. This SPT contract is a more attainable jump to a contract than the only previously available Hollywood Area Theater (HAT) contract. However, the new AEA plans do not consider the financial differences between the many 99-seat arts organizations, and the carve-outs for the membership companies do not come with any timetable or transitional steps to contract. So I was very interested to hear what an alternate plan idea might be for Los Angeles intimate theater.

The new plan idea, titled the Los Angeles Intimate Theatre Code (LAITC), as presented at the town hall by Larry Poindexter, was formed by a small collection of AEA members within the Pro99 group. I was hoping it would finally answer what the watch-cry of “Change, but just not this change” actually meant. Unfortunately, the answer seems to be: “We don’t really want any change at all.” The proposed alternate idea is, in essence, the old 99-Seat Plan. Here are the key points to the LAITC idea:

  • The proposed LAITC plan begins with it being available only to nonprofit theater companies operating in 99-seat-or-under venues. I completely agree with this point. This is what was intended in the old 99-Seat Plan and yet was never enforced by AEA (and was abused by some commercial producers and numerous vanity showcases).
  • The second part of the LAITC plan proposes that actors are volunteers (not employees or independent contractors) and would receive compensation only (not a stipend) upon submitted receipts for things like parking, gas, train or bus fare, meals, and possibly childcare. Actors would not be compensated at all for any rehearsal period and would be volunteers for up to 24 performances. This is equivalent to a six-week run (at four performances a week), which is more than many productions run in Los Angeles intimate theaters. So there is no real change here from the old plan. There is still no payment for the rehearsal period and still no pay (other than a reimbursement vs. a stipend) for many production runs. Actors are not getting paid a wage for 10-12 weeks of a production (four to six weeks of rehearsal and six weeks at four performances a week).
  • The third part of the LAITC idea proposes that, after 24 performances, the production would have to move on to a minimum wage contract — except for a once-a-year exemption per theater — to extend the volunteer status to 40 performances (or 10 weeks). I’m not sure I understand why, if a theater can “pay” after 24 performances, there would be a need for an exemption to 40 performances. This seems like a way to extend a show (that is successful and making money for the theater) but still not pay the actors. Such an exception would also ensure that even fewer productions ever moved up to contract. The old 99-Seat Plan had a built-in series of steps up in stipend payments, leading to a percentage of the box office for longer (extended) runs. Again, this proposed LAITC plan is all very similar to the same old 99-Seat Plan. Nothing has really changed.

As a small sampling, over the past few years, a number of the larger (higher annual income) 99-seat theaters — such as The Theatre @ Boston Court, The Antaeus Company, The Fountain Theatre, and Rogue Machine Theatre — did have productions that extended beyond 24 and 40 performances. Most of the smaller (lower annual income) 99-seat theaters — such as Coeurage Theatre Company and Sierra Madre Playhouse — had no productions that reached the 24-performance mark. One could argue that these larger organizations would possibly generate paid contracts after 24 or 40 performances. Most of these theaters, however, are already paying a higher stipend (at or near $25 per performance), and the jump to minimum wage ($10 an hour) would only be a slight increase in payments to actors. The financial data that LA STAGE Alliance shared at the town hall (provided by the Fountain Theatre) shows this to be true. So even if a production did move onto a minimum wage contract after the 40 (or 24) performances at one of these more established 99-seat theaters, the additional dollars paid to actors would not be that different from the step up percentage of box office from the old 99-Seat Plan.

I believe there is another potential problem with this LAITC idea as presented so far. If the actors are volunteers for the first 10-12 or 14-16 weeks (depending on rehearsal length and 24 or 40 performances) and then if the show extends longer and moves onto a minimum wage contract, the same actors are now “employees” being paid a wage for doing exactly the same thing they did the week(s) before as volunteers. If volunteer status (with receipt reimbursements) is needed to protect a theater from Employment Development Department (EDD) filings, then what happens when EDD comes after the first theater that extended to contract under this plan and claims that the actors and stage manager (employees) were always employees all along, and that they are now owed 10-16 weeks back wages? The theater would then also now owe back taxes and would be required to pay EDD penalty fines. This does not work. You cannot be a volunteer and then an employee for doing the same exact job (role) in the same production for the same theater.

One other element of the LAITC idea is that it would be based upon production budgets ($40k cap for plays and $50k cap for musicals). I find this untenable. Budget numbers are far too easy to fudge, alter, or lie about. Is AEA really expected to have someone track and review hundreds of show budgets a year in a system that pays little to no dues?

I am disappointed by this LAITC proposal because it is, in essence, the old 99-Seat Plan wrapped in a new package. The creators of this LAITC plan also suggest implementing it for five years. And then what? What changes would come after five years? A tweak or two? How long do theaters get to still not pay actors? 10 more years? 20 more years? 30 more years?

It is time to stop. Where is the change?

Intimate theaters in Los Angeles should not be allowed to not pay Equity actors and stage managers in perpetuity. It is time to grow, step up in payments, and transition into paying theaters — as all other U.S. theaters do that want to employ Equity actors and stage managers. Art and commerce are not mutually exclusive. I do not buy the propaganda that there is no money in Los Angeles intimate theater. The largest thirty 99-seat theaters have a combined total annual income of over $16 million dollars. Many of these theaters have paid staff and pay the other creative artists on their production teams. Several theaters operate multiple performance spaces, others produce multiple productions in repertory, and a few have built new theater facilities.

So now that I have expressed my concerns about the flaws in this LAITC proposal, and the lack of any real change being offered, I don’t think it is fair of me to just walk away without suggesting another idea.

There are currently over 200 theatrical entities in Los Angeles producing at the 99-seat-and-under level, and all of these 99-seat theaters are not alike. Many operate on very small annual incomes (under $100k) while others have annual incomes over $200k, $400k, $700k, and a few operate at $1mm and higher. All of these nonprofit theaters (501c3) file tax returns, and I feel the only proper way to create a fair system for all is to tier the theaters based upon their annual income. Annual income is easy to track and, if manipulated, a theater would also risk an IRS audit and penalties. A tiered system would allow for theaters of different financial sizes to pay Equity actors and stage managers proportionally and fairly. It would also allow for steps toward growth as a theater becomes more successful.

Here is my thought towards another “alternate plan” for Los Angeles intimate theaters:

Tier 5: All 99-seat-and-under 501c3 theaters with an annual income under $100k pay $15/day (volunteer) reimbursement to all actors and stage managers for rehearsals and performances.

Tier 4: All 99-seat-and-under 501c3 theaters with an annual income under $200k and above $100k pay $20/day (volunteer) reimbursement to all actors and stage managers for rehearsals and performances.

Tier 3: All 99-seat-and-under 501c3 theaters with an annual income under $300k and above $200k pay $25/day (volunteer) reimbursement to all actors and stage managers for rehearsals and performances.

Tier 2: All 99-seat-and-under 501c3 theaters with an annual income under $500k and above $300k pay $40/day (volunteer) reimbursement to all actors and stage managers for rehearsals and performances.

Tier 1: All 99-seat-and-under 501c3 theaters with an annual income under $1mm and above $500k pay minimum wage (on contract) to all actors and stage managers for rehearsals and performances.

SPT: All 99-seat-and-under 501c3 theaters with annual income above $1mm pay actors and stage managers on an SPT contract.

Also, to encourage growth, all Tier 5 through Tier 2 theaters may only stay within their current tier for a maximum of three years. After three years, they would need to move up a tier and then again in another three years. New companies (with at least two years of 501c3 tax returns) would be welcome into the system.

As I mentioned earlier, some budget data was presented at the town hall. Specifically, this information showed that, at the Fountain Theatre, a cast of five actors and one stage manager currently costs them $9,010 for six weeks of rehearsals and a 30-performance run. This data also showed that, under AEA’s new minimum wage contract, the Fountain Theatre would then need to pay the same cast of five actors and one stage manager $18,822 for six weeks of rehearsals and a 30-performance run. This is a 109% increase in actor and stage manager fees for a theater with an annual income of $555,545 that produces four productions a year. The Fountain Theatre averaged 3-4 actors per production for the past two seasons. So if they hired 14 Equity actors and four stage managers in a season, they would need to allocate approximately $28,592 more out of a $555,545 budget. That does not seem impossible to me. A $555,545 theater that has been producing for over 25 years should at least be paying its actors and stage managers the minimum wage. In fact, as shown in the statistics presented at the town hall, the Fountain Theatre currently is almost paying minimum wage now for all performances. It is the lack of anything close to a legal wage for the six-week rehearsal period that is creating the gap between theaters of this financial size making the transition to at least the minimum wage.

Some of this country’s greatest regional theaters began in intimate theater spaces and with meager means. South Coast Repertory, where I have worked for the last 20 years, started out as a storefront theater in Long Beach and grew to one of this country’s top regional theaters. Steppenwolf Theater, in Chicago, began in a Unitarian Church and then moved into a Catholic school basement space but quickly made it a priority to pay its actors and move up and out of the small theater model. These theaters always had an eye towards growth. With the proliferation of and lack of any limits in the old 99-Seat Plan, many of our Los Angeles intimate theaters have lost that drive towards growth and have become complacent, relying on generations of actor subsidy and letting that be what defines much of the LA’s theater community.

My hope in penning this is to keep this dialogue going. As a scenic designer and a member of a different theatrical union (USA 829), I hope my perspective can help illuminate the need for changes without decimating our current theatrical landscape. The nature of the code or contracts that the actors and stage managers work under set precedents for all of the other theater artists (directors, designers, and technicians). I’m sure many can and will find flaws in my proposed idea. I’m sure it is not a perfect plan, but is another idea for consideration towards fair pay and working with the vast financial varieties and realities of the many Los Angeles intimate theaters. I hope that further discussion will help seek out real changes and promote growth for Los Angeles intimate theater.

I should also say that I love Los Angeles theater, and I love Los Angeles intimate theater, while not at the cost of devaluing the overall theater product and culture. It is time for real change. I certainly do not believe that the current changes that AEA is instilling are the solution, but neither is this proposed LAITC plan.

It is time to find a way to create and transition into a system that works toward paying actors and stage managers, and that deals with the financial realities of over 200 very different intimate theaters. Los Angeles’ intimate theaters have and are capable of creating great work, and I believe we are all capable of even stronger work, real growth, and a better balanced theater system that works for everyone.

For another perspective on the Pro99 alternative intimate theater plan, read this piece by Lawrence Pressman.

Tom Buderwitz

Tom Buderwitz

Tom is a Scenic Designer who has worked at South Coast Repertory, The Geffen Playhouse, Pasadena Playhouse, Center Theater Group, The Theatre @ Boston Court, Antaeus Company, Rogue Machine and A Noise Within, among many others. He is a four time Ovation Award winner and is an adjunct professor for the USC School of Dramatic Arts.