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Waiver in Wonderland

Fact and fiction behind LA Theater’s 99-Seat-Plan

[UPDATE OCTOBER 6, 2014:

Mary McColl, Executive Director of Actors’ Equity Association, will be spending the latter half of the week in Los Angeles to meet with both the 99-Seat Plan Review Committee (on Wednesday) and to hold a “town meeting” forum with Equity actors here (on Friday, 2 p.m. 5636 Tujunga Ave., NoHo, rsvp here) to discuss the artistic ecology of LA theater. Talks between Equity and the local Review Committee on possible changes to the 99-Seat Plan had stalled after Equity’s 99-Seat administrator Michael Van Duzer was let go in June of this year. More details to come, as they arrive.]   

Now that president Obama has articulated a strategy for dealing with ISIS, let’s move on to more important matters such as the future of LA theater’s 99-Seat Plan, discussions of which have recently stirred such anxiety and rage. Evidence of this can be found on the Big Cheap Theater List Serve, duly and absorbingly reported by Colin Mitchell on Bitter Lemons.

There’s talk of the Plan going away, because of lawsuits seeking injunctive relief for actors, designers and directors — “employees” who, under the Plan, are working for “wages” considerably less than the federally mandated minimum — as though a group of actor-producers trying to put on their production of Kiss Me, Kate at the Lost Studio is akin to Fox Searchlight and its alleged financial exploitation of interns. Producer Joe Stern says that if the Plan went away, it would take 80% of LA theater with it. So what, counters Colin Mitchell — even though such a ruling would take down many of our mid-size theaters as well; here and across the country, they also have contracts that permit payment schedules of less than minimum wage. Still, less is more, argues Mitchell, and there’s talk of law firms insisting that such an outcome is likely.

There’s also talk of different law firms insisting just the opposite, given how the Plan’s Settlement Agreement, which determines how the Plan can be changed, and by whom, was cemented by a court order in 1989. In other words, the Plan’s very existence has the blessing of the LA Municipal Court, which also stipulated that “should any provision of the Plan be deemed invalid by a court of competent jurisdiction, the parties agree that this should not affect the enforceability of other provisions. . .” Translation: The Plan may be tweaked, but it is fundamentally safe, legally.

So there are issues pertaining to the enforcement of the Plan’s terms, where the word “illegal” might be pinned onto certain current activities and abuses of the Plan’s rules, and then there are issues pertaining to the legality of the Plan itself, which is an entirely different matter. It’s a fool’s errand trying to predict how a judge might interpret any of this, if it ever comes to that. Hysteria over the inevitability of the Plan’s collapse does seem paranoid.

According to members of the Theatrical Producers League of Los Angeles, who spoke to Stage Raw on the condition of anonymity, the Plan’s Review Committee and its delegates (defined in the Settlement Agreement) had been holding constructive meetings with Actors’ Equity Association liaison Michael Van Duzer – specifically about revising terms of the Plan’s stipends to actors in order to avoid potential problems with the IRS, and on ways to better enforce the Plan’s rules — until Van Duzer was let go in June of this year. Meanwhile, Equity’s Western Regional Director, Ralph Remington – reportedly hostile to the 99-Seat-Plan – announced his resignation last week. With luck, when the dust settles over at Equity and a new Western Regional Director is installed, discussions can continue.  

Meanwhile, there’s talk of revolution, talk of retrenchment, talk that L.A. theater needs to grow up, talk that it needs to grow down, talk that all the talk is being artificially stirred.

My favorite fallacies behind all this talk come from the book Angels in the American Theatre: Patrons, Patronage and Philanthropy published by Southern Illinois University Press back in 2007, edited by Robert A. Schanke and written by 16 scribes. I quote from the section written by theater historian John R. Poole on the 99-Seat Theater Plan in Los Angeles, because its many falsehoods are still swirling in the current conversations. The excerpt also demonstrates how LA theater’s insecurity about itself is not just self-generated, it comes as much from articles and books like this, written by out-of-town journalists and historians who relentlessly ignore the largest swaths of the LA theater community in their reporting of it. (I’ve footnoted the most egregious gaffes, and remarked on them below):

“The people are indeed the city, as Shakespeare suggests in Coriolanus, yet in Los Angeles, theater was not developed for its own sake, nor for that of its citizenry, but as a tool in service to its hometown industry. If Broadway represents a lucrative avenue of exploitation by Hollywood, theater in Los Angeles has largely been more about showcasing talent for film producers and directors than about developing a genuine cultural mission to serve the community.*1 In part, this is because of the peculiar nature that is the Hollywood machine. Unique to Los Angeles is the Equity Waiver agreement, known as the ninety-nine-seat waiver, or the Plan by Actors Equity and the Screen Actors Guild. This code waives Equity rules in order to allow Union actors (read film and television stars) to perform without a salary contract. One of the best kept entertainment secrets in Los Angeles, audiences can see live performances by actors who they recognize from film and television while providing opportunities for young or established screen actors to generate exposure ‘between projects.’ The provision restricts actors [he means producers] operating under this code from having more than ninety-nine seats and thus prevents the legitimate theater producer from staging more challenging productions or attracting a larger audience.

“To be sure, there is a humming theatrical scene, particularly on Hollywood’s so-called Theater Row,*2 but on the whole, the ninety-nine-seat waiver operates to suppress the growth of the theater market.*3

“Randall Arney, artistic director of the Geffen Playhouse and co-artistic director of Chicago’s Steppenwolf Theatre Company, explains:

     ‘Young artistic grassroots companies that are producing in 99-seat houses is very different from the actors who don’t care about their  99-seat houses. “I’m just doing this so my agent can see me and I can get an agent and get a film.” Young theatres that are wanting to grow are kinda kept at 99-seats. There are more functioning theatres in Los Angeles than in any other city in the country, if you count the 99-houses. However, no grassroots little group of actors bringing furniture from their parents’ houses are able to take the step to 125 seats because the union then insisted you pay.’” *4

*1, Contradicting the claim that most theater under the 99-Seat-Plan exists for actors to showcase themselves to Hollywood rather than “developing a mission to serve their community,” the following (and probably more) 99-seats-or-less theaters were around in 2007, when Poole’s essay was first published (a few of these companies have closed or gone dormant, while one, Robey Theatre Company, now operates under an Equity contract). These theaters produce(d) plays and spectacles that are entirely unrelated to impressing Hollywood agents, and many have developed programs to support their relationships to the community:  24^th Street Theater, Playwrights Arena, Theatre @ Boston Court, Sacred Fools Theatre Company, Unknown Theatre, City Garage,  Company of Angels, Zombie Joe’s Underground, Theatre Unleashed, Victory Theatre, Robey Theatre Company, Rogue Machine, Son of Semele Esemble, The Fountain Theatre, Pacific Resident Theatre, Santa Monica Playhouse, Blank Theatre Company, The Fabulous Monsters, Chromolume Theatre, Celebration Theatre, Greenway Arts Alliance, Open Fist Theatre Company, Watts Village Theater, The Actors’ Gang, Crown City Theatre, SkyPilot Theatre, Working Stage Theater, Echo Theatre Company, Critical Mass Performance Group, Bilingual Foundation of the Arts, Ghost Road Company, Theatre Movement Bazaar, International City Theatre, About Productions, Road Theatre Company, Theatre Tribe, Antaeus Company, Padua Playwrights, Deaf West Theatre, Casa 0101, Odyssey Theatre Ensemble, Theatre Asylum- Elephant Space, Theatre Asylum, Buffalo Nights Theatre Company, Theatre of NOTE, Ziggurat Theatre Ensemble.

*2, not sure why Theater Row is “so-called.” Theater Row was so named by a consortium of area businesses, the Hollywood Media District, which the city of Los Angeles has demarcated with a “so-called” street sign. At the time Poole’s “so-called” essay was published in 2007, Theater Row was strung with theaters along and adjoining a one-mile strip of Santa Monica Boulevard between El Centro and La Brea avenues; these included the Lounge Theater (2 spaces), Open Fist Theater Company, Theatre Asylum – Elephant Stage, Theatre Asylum, three adjoining stages of The Complex, the Flight Theatre, Second Stage Theatre/Blank Theatre Company, the Hudson Mainstage, the Hudson Backstage, the Hudson Guild, ArtWorks theaters (2 spaces) and the Celebration Theatre. Other theaters off Santa Monica Boulevard within this one-mile row included Theatre of NOTE (on Cahuenga and Sunset boulevards), The Lex Theatre and McCadden Theatre (south on McCadden Place), the Unknown Theatre (north on Seward Street), The Village at Ed Gould Plaza (south on McCadden Place), and Theatre des Artistes (north on McCadden Place).

The so-called mayor of Los Angeles, Eric Garcetti, standing up for the so-called Hollywood Media District and its so-called Theater Row

*3, That the 99-Seat Plan ever existed “to suppress the growth of the theater market” is also hyperbole. Historically, from the mid-1980s, when the 99-seat-plan was responsible for the unprecedented number of “intimate” theaters opening in converted storefronts and warehouses in Los Angeles, the emergence of mid-size theaters was also robust. Poole’s conclusion stems from what former Back Stage West editor and current associate editor for American Theatre magazine, Rob Weinert-Kendt calls “zero sum logic.” From Kendt’s marvelous 2009 history of the 99-Seat-Plan in LA Stage Times:

“Curiously, LA’s midsized theaters – hence theaters offering paying Equity contracts – also began to thrive in the ensuing decades, as the Taper achieved national fame in mid-1970s, the Westwood Playhouse opened in 1975, and the Pasadena Playhouse made a second entrance in 1986. [Note: Kendt could have further cemented his already strong argument by mentioning the opening of the Los Angeles Theatre Center’s four-space complex downtown, in 1985. Three of LATC’s four stages operated with Equity contracts.]

“This concurrent midsize-theatre health is another important fact to keep in mind as one traces the history of Equity Waiver, since the anti-Waiver argument is often made with the zero-sum logic that says that more non-paying theater somehow undercuts or drives away paying theater.”

*4, Randall Arney’s claim is misguided: that the 99-Seat Plan, which allows actors to donate their time and talent to intimate theaters,  necessarily keeps young companies small and in poverty. No, it’s the economy that keeps them small and in poverty. When the economy was stronger, before 2008, at least five 99-Seat Plan companies made the transition to Equity contracts (Los Angeles Actors’ Theatre, East West Players, the Colony Theatre, Robey Theatre Company, Latino Theatre Company, and one after 2008, A Noise Within, in 2011 – largely because Actors’ Equity Association allowed and then encouraged them to grow by providing flexible contracts. Since 2008, even Equity’s flexibility is no longer helping. The contractual step up from the 99-Seat Theater Plan to, say, the HAT contract is now too steep in our current economy for most of our intimate theaters. Furthermore, patronage and grants have been steadily eroding since 2008, creating an increasingly dire pressure for theaters of all sizes to support themselves on ticket sales. Just ask Sheldon Epps about the changing ratio of contributed income to earned income over at the mid-size Pasadena Playhouse, since the crash of 2008. The esteemed State Theatre of California is struggling with its growing dependence on box office revenues – a dependence that prevents the kind of “challenging” work (Poole’s word) that Epps says he desires, and that Poole sloppily argues that only larger theaters are capable of. (Does anybody remember Zigurrat Theatre Company or the Fabulous Monsters?)  Our theaters large and small co-exist in the same  daunting economic climate. With the possible exceptions of A Noise Within, Latino Theatre Company and Robey Theatre Company, the work of our mid-size theaters that made the leap has, frankly,  become less challenging artistically than when they were in their smaller venues. Like everyone else, they’ve been squeezed into survival mode by the austere economy.

[Corrections: Though Robey Theatre Company has performed two shows under an Equity Contract, the theater’s publicist says that the company currently operates under the 99-seat plan. However, two companies that made the transition from the 99-Seat Plan to Equity contracts before 2008 were overlooked in this article’s first posting: International City Theatre in Long Beach, and Independent Shakespeare Company. Finally, A Noise Within did not make its transition from the 99-Seat Plan to Equity in 2011 as reported, but in 1996. This means that seven, not five, companies transitioned from the 99-Seat Plan to Equity, all before the crash of 2008. No company has done so since. Thank you Don Shirley for these clarifications.]

The final fallacy in the current discourse comes not from Poole’s essay, but from snippets of conversation I’ve been reading — about the hundreds and hundreds of small theaters, the sheer quantity of output being responsible for shoddy production values and a certain lack of definition to LA’s theater scene. In a recently re-posted 2003 Back Stage West article, Rob Weinert-Kendt called for LA artists to stop producing so much theater.

In 2003, Kendt’s view may have had such validity and influence, he actually got what he asked for, though what appears to be around a 50% drop in 99-seat-theater production between 2003 and 2013 is more likely attributable to the real estate bubble, and how it has caused the cost of commercial leases to soar. Much has been written about the shuttering of established Hollywood-based 99-seat companies such as Open Fist and the Celebration theaters, due to rising real estate costs; before that, also in Hollywood, Unknown Theatre lost is lease, as did Theatre des Artistes. Theater closures due to the sharply escalating costs of leases have also affected North Hollywood, and Rogue Machine, mid-city, is concerned for its future..

In the first three weeks of October, 2003, the LA Weekly listed an average of 93 intimate-theater productions in Hollywood, 35 in the valleys and 23 in the Westside/beaches areas. Ten years later, during the same time of year, those numbers were, respectively, 43, 18 and 13. The corresponding 10-year-decline in mid-size and larger theater productions was slightly less dramatic, but still significant, a 33% drop from 30 in 2003 to 21 in 2013.

Both these declines, and the changing ratios between smaller and mid-size/larger theaters conform to a similar observation by Don Shirley, now theater columnist for LA Observed. Shirley spotted the trend in 2012, when he wrote for LA Stage Times:

“LA’s small-theater (excuse me, intimate-theater) scene is big, but maybe not quite as big as we thought. That was my conclusion from Actors’ Equity’s response to my recent query about how many productions operated under the 99-Seat Theater Plan in 2011, and how many productions in Greater LA operated on Equity contracts.

“When people describe the 99-seat scene, we usually fall back on an assumption that there are at least 500 — perhaps a thousand — productions on the plan per year. That might have once been true, although it isn’t very well documented.

“Whatever the past numbers were, in 2011 there were 371 productions registered under the 99-Seat Plan, Equity says. And there were 216 productions in Los Angeles, Ventura and Orange counties (aka Greater LA) that worked on Equity contracts.”

Shirley goes on to elucidate the fallacy of the few mid-size and large theaters sitting on a fat base of 99-seat theater productions.

“Perhaps because the 99-Seat Plan is unique to LA, a common perception of LA theater is that it has only a few productions at the top of the theatrical food chain — but hundreds more at the bottom, in sub-100-seat theaters. But these 2011 figures from Equity challenge that notion. A majority of the 587 Equity-related productions in Greater LA in 2011 was indeed on the 99-Seat Plan, but it was only a 58% majority, as opposed to the 90% proportion sometimes imagined in articles such as this one from last year.”

There’s a margin for error in these tabulations – for instance, errors in the way the LA Weekly put together its listings (they were never compiled for statistical purposes). On Shirley’s end, the percentage of productions that perform but never register with Equity’s 99-Seat-Plan would be invisible in his statistics. Still, it’s unarguable that there has been a striking decline in production, particularly in shows registered under the 99-Seat-Plan. In a related anecdotal account, one member of the Ovations Committee recently commented on the noticeable decline in the number of productions registering for Ovation Awards.

What does all this actually signify? First, the claim that the lousy quality of LA theater stems from its relentless onslaught of productions, needs to be put to bed. Those who believe that the general quality of stage-work in LA is shoddy now need to find a better reason for that shoddiness than “too many productions,” or “too easy to put up a show.” The numbers, and the real estate market, no longer support those claims. For that theory to hold, with the decline in productions region-wide, there should have been a 30% – 50% escalation of standards over the past 10 years, yet that’s certainly not an anthem of the less-is-more set.

What’s actually happened is that, in the wake of the “pruning” that Kendt called for in 2003, the always strong flagship companies (from Center Theatre Group in one corner to the likes of Rogue Machine, Antaeus Company and The Fountain Theatre in the other) have risen to the fore, leading to the gradual maturing of the theater scene here. I’ve also noticed a slow erosion of that soul-destroying shoddiness, because it’s now harder to put on a play here today than it’s been in recent memory. So hardship would appear to have its perks, but it also has its drawbacks.

How much do you prune the tree before you’ve killed it?

Writes Mitchell this year, “Maybe a good 80% of the theater being done in this town should be killed. If it means that the overall standard of quality and professionalism rises in the other 20% and those deserving of living wages get them, why is that such a bad thing?”

So let’s imagine. Let’s leave our “professional” (they get paid) mid-size and larger theaters in place and eviscerate all small theaters on the 99-Seat Plan. (As Shirley’s numbers suggest, that still wouldn’t amount to an 80% cut.) Now you suddenly have a scene in which the work is instantly more polished, salaries of artists and administrators are all higher, but still only about 20% of the work on the stages is particularly memorable, as it is now.

Where’s the logic that the art will improve at one theater just because another theater has gone away? If the economy is still crap, these surviving mid-size theaters are still going to be doing shows with only two or three actors (all they can afford), they’ll still be aiming for crowd-pleasers rather than “challenging” work, as long as their survival is disproportionately dependent on box office revenues. Is the bounty of philanthropy and grants suddenly going to descend because there’s suddenly less theater? Are the Irvine Foundations and Wallis Annenbergs and Eli Broads sitting around waiting for all these annoying small theaters to close, so they can then bestow their millions on the surviving grown-ups? Unlikely.

The more dire consequence of this theoretical bloodletting is all the college graduates from Cal Arts, UCLA and USC who will now start their performance companies-of-the-future elsewhere, or not at all, and that’s when the sky will really fall.

In addition to standards and professionalism, we might also want to consider the virtues of a wide range of artistic exploration, and the continued, messy incubation of new works, and new companies. For that to happen, we need to be welcoming, opening our doors, opening our arms. Excellence may well derive from hardship, but it also derives from opportunity.