A first year graduate student in my arts management class presented a paper this week on arts labor economics. Her undergrad degree was in acting so she had never delved into the topic formally. She certainly understood through anecdotal observation that there is an imbalance between artist labor supply and artist opportunity and that artists are often paid less than their peers in other fields (to put it mildly). Among the factors she considered was that artists are often willing to work for low or even no pay because the joy of doing the work is payment enough. In concluding her presentation, she posed a rhetorical question that I paraphrase here: How can we make this vicious cycle of artist oversupply and underpayment stop?

Following this presentation, I returned to my office and this email:

Hello! I want to reach out and see if you have any film students that are interested in expanding their portfolio with an opportunity to be our videographer for a day and film one of our [donut company name] Grand Openings! This is a great chance for film students to work with a well-known brand on a one-time project and get some good experience. We feature their work on our official [donut company name] social media pages and possibly on our official website! As a reward, we give the videographer(s) a dozen free glazed doughnuts every week for an entire year!!! Please let me know if you have any interested candidates. Note: This particular Grand Opening will be taking place ….. Thank you!

The email was sent to a long list of faculty members at film programs in the region. I hit reply all with the question “What is your pay rate for these skilled services?” To which the “marketing coordinator” replied:

Hi Linda! Unfortunately, this is a volunteer/intern opportunity. We will give the student videographer a punch card for a dozen free glazed doughnuts every week for an entire year as a thank you for their time! Hope this helps answer your question!

In addition to the overuse of exclamation points, this response invoked what some uninformed folks think is the key to unlocking the treasure chest of unpaid artist labor: INTERN. I am a huge supporter of internships as experiential learning opportunities if they are truly that, with clearly delineated learning objectives, supervision by experts, and time limits. But this was obviously not an internship in that sense. Seeing a teaching moment, as well as an opportunity to stop the vicious cycle of artist underpayment in some small way, I responded, quoting chapter and verse from the Department of Labor rules for determining if an “opportunity” is actually an internship [I highlighted the salient points for her]:

Will there be someone onsite providing education and training? Here are the US Department of Labor rules on unpaid internships: “There are some circumstances under which individuals who participate in “for-profit” private sector internships or training programs may do so without compensation. The Supreme Court has held that the term “suffer or permit to work” cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction. This may apply to interns who receive training for their own educational benefit if the training meets certain criteria. The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program. The following six criteria must be applied when making this determination: The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; The internship experience is for the benefit of the intern; The intern does not displace regular employees, but works under close supervision of existing staff; The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; The intern is not necessarily entitled to a job at the conclusion of the internship; and The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern. This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad.”

The response:

No. There will not be. This is a volunteer opportunity. Thank you for sharing this information! Very good information to know!

I posted this exchange on facebook where a friend reminded me of a meme on a similar topic that made the rounds a year or two ago:

Craig’s List Ad: We are a small & casual restaurant in downtown Vancouver and we are looking for solo musicians to play in our restaurant to promote their work and sell their CD. This is not a daily job, but only for special events which will eventually turn into a nightly event if we get positive response. More Jazz, Rock, & smooth type music, around the world and mixed cultural music. Are you interested to promote your work? Please reply back ASAP. Craig’s List Response: Happy new year! I am a musician with a big house looking for a restauranteur to come to my house to promote his/her restaurant by making dinner for me and my friends. This is not a daily job, but only for special events which will eventually turn into a nightly event if we get a positive response. More fine dining & exotic meals and mixed Ethnic Fusion cuisine. Are you interested to promote your restaurant? Please reply back ASAP.

So, one answer to my student’s rhetorical question is “Just say NO.” As in, no, I will not make your donut commercial for free; no, I will not play at your restaurant “for the exposure;” no, you cannot have my painting to hang in your home because your “important” friends will see it; no, I will not paint your set “for the experience.” What I will do is accept a slightly below market wage because I’m still in school and you’ll get what you pay for; yes, I will play at your restaurant for one night if you provide dinner for my family of six beforehand; yes, I will loan my painting to you for a fixed period of time if I am invited to the cocktail party to meet your important friends; yes, I will paint your set with you so that you can train me on a specialized technique with which I am unfamiliar. Or, yes! I will gift my talents to you with generosity and an open heart because I love you, your cause, or your work. But no, I will not make your donut commercial for free. [In a follow-up post, I discuss saying “YES!”]

PS. Can you imagine what eating a dozen donuts every week for a year would do to your body? Yuck! [photo by Angeldm, Creative Commons License]

UPDATE: In July 2015, the courts dealt a blow to upaid interns eveywhere, ruling that the six criteria established by the Department of Labor were outdated and instead the “primary beneficiary” test should be applied. Which still begs the question, when a highly skilled person works for a commercial company for no compensation, who is the primary beneficiary? Read more here.

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