A typical band has a handful of members. A large band might have almost 10 people in it. The Lucky Devils Band, on the other hand, has potentially hundreds of members, some of whom aren’t feeling very lucky at all.
The group is at the center of a lawsuit brought by two Bay Area musicians who were part of a roster of musicians performing under the Lucky Devils name. The Lucky Devils consist of whichever musicians show up at any of several shows the band might be booked to perform locally on a given night. Musicians sign up for this arrangement knowingly, but the payment structure left at least two of them feeling like something was off-key.
Bands and other performers currently enjoy a hot market for live entertainment at private parties in the Bay Area. With the rising cost of living in the Bay Area making it increasingly difficult for many musicians and other artists to afford to live here, though, the case puts a spotlight on the kind of gig-economy debates surrounding companies like ride-hailing app-maker Uber: What’s the line between helping people find needed gigs to earn a living and exploiting those people’s labor as an intermediary between their labor and the customer? How much of a cut should an intermediary take for connecting a person to a job, and who decides what that fair cut should be? The Lucky Devils case, pending in parallel proceedings before the state Labor Commissioner and in civil court, may soon provide some answers for musicians in California.
Thomas Cryer II, 48, went on his first tour at age 15 and has been working in the music industry ever since. The Oakland-based musician, who goes by Tasche, has a studio where he produces songs for independent artists and works with various labels on movie soundtracks and other projects.
One of his friends joined the Lucky Devils several years ago and encouraged Cryer to look into joining, too. The friend said “it was a great band to be a part of because you didn’t have to do rehearsals, you could just go in and play,” Cryer tells SF Weekly. To an experienced musician like Cryer, that was part of the appeal: Agreeing to other gigs meant first gauging how much rehearsal time would be required.
Cryer soon realized it was more like a musicians’ collective than a typical band. He was surprised by the setup, he says, since he had never encountered another one like it in his decades-long career.
“From gig to gig, you don’t know who you’re going to be on stage with,” he says. That didn’t bother him when he first joined, as he usually found himself playing with talented musicians and expanding his network within the Bay Area music community.
But he started to have doubts when he saw that not every musician in the Lucky Devils brought the level of professionalism being sold to customers.
“It was painted as everyone was a pro, and everyone wasn’t a pro,” he says. He felt like a babysitter at times, guiding musicians who were on their first gigs and didn’t seem to know some of the basics of live performances.
“I’ve been on plenty of gigs where I was kind of like, ‘We are professionals, man. We have got to pull it together,’” Cryer says of performing with the Lucky Devils.
Customers don’t have final say on which Lucky Devils members perform at their event. Though prospective customers can see the Lucky Devils perform at showcases that are put on regularly in the area, there’s no guarantee that the musicians they see perform will be the ones at their event. Customers might get a good iteration of the Lucky Devils at their event anyway — “there are some great musicians in Lucky Devils,” Cryer says — but it is a roll of the dice.
The tipping point that led Cryer to decide to leave the Lucky Devils, he says, was the payment model. He sometimes played keyboard and sang at gigs, and he asked twice early on for a pay rate that would reflect him taking on both roles. He was told some version of “that’s not our business model” each time he brought it up. He raised the topic again after more than two years of working with the Lucky Devils. He thought at that point that his good standing with the group might change their response, but he says it didn’t seem to matter.
Cryer says he voiced his concerns about the way things were being run in the Lucky Devils at two band leader meetings he was part of. He and other musicians who worked as band leaders at Lucky Devils gigs would meet with a local consultant who could send feedback to the people running the International Musicians League, the New York-based company operating the Lucky Devils. But the consultants never seemed to acknowledge the problems, Cryer says.
Cryer and Jesse Brewster, a Marin-based musician who played with the Lucky Devils, also discovered the musicians in the group were making what they thought to be a surprisingly small cut of the overall fee for gigs. They found out what Lucky Devils charges from friends who had looked into booking the group for weddings and other events, Cryer says.
“That’s when we started finding out, ‘Whoa, they are charging this, and we are only making that?’” Cryer says.
“On several occasions the full payment from the client was accidentally posted on the gig page of an event, and it was clear that in most cases, IML was taking up to 50 percent off the top of the event,” Brewster said in an emailed statement.
And that’s where the lawsuit Cryer and Brewster filed starts to dig into questions about the role of the Lucky Devils and how the group should be classified under California labor laws.
Playing different tunes
Cryer and Brewster filed suit in April both as a class action in the Alameda County Superior Court and as a petition to determine controversy with the California Labor Commissioner.
The case alleges that the International Musicians League, operating as the Lucky Devils in California, is acting as an unlicensed talent agent in the state. The California Talent Agencies Act says someone “procuring, offering, promising, or attempting to procure employment or engagements” for artists must obtain a license from the state Labor Commissioner. Cryer and Brewster’s case alleges the Lucky Devils are “acting as a middle-man or intermediary between buyers and sellers of talent” and so should be licensed as a talent agent in the state.
Being a talent agent in California would require the Lucky Devils to submit fee schedules to the state Labor Commissioner for approval, too, and the Commissioner “routinely denies approval of fee schedules that exceed 10 percent of a musical artist’s earnings from live performances,” the plaintiffs say in a case document. The Lucky Devils typically pay musicians less than half of the total fee they charge customers, the plaintiffs allege, citing an example of someone booking a six-piece band for $4,500. The six musicians at that gig would earn around $2,200, the lawsuit says, while the International Musicians League keeps the remaining $2,300.
The International Musicians League sees things differently, writing in a court document that it “hires musicians to perform at certain events and pays those musicians a daily rate,” and the Talent Agencies Act “does not regulate companies that hire artists.”
“When Beyoncé hires a drummer for the day to record a song or perform at Coachella,” the Lucky Devils operator wrote, she is not violating the Talent Agencies Act. They added that, “If accepted, Plaintiffs’ theory of liability would require every individual or company in the state of California to become a licensed talent agent before hiring a musician.”
The Labor Commissioner’s Office could make a decision about whether to hear the case in the next few weeks.
Michael McClintock, founder of the International Musicians League, tells SF Weekly he started the group to create “sort of a gig-sharing pool” that gives musicians the stability of being able to earn money as needed. As a musician himself who spends time on the road between New York, Los Angeles, and Australia, he knows “it’s a difficult industry,” he says, with people trying to supplement income through gigs when they are not touring or working on other projects.
He started the International Musicians League in 2010 in Australia before expanding it to the United States. Regional iterations of the Lucky Devils can now be found throughout the country, with the League appearing to run at least a half-dozen other bands with a similar setup. Websites with the same layouts are customized for each band, from the Royal Dukes Band that plays throughout Texas and Oklahoma to the Bay Kings Band playing in Florida. An explainer video about how to book the band is embedded on each website. A tailored band logo hovers in the upper right corner of the videos, laid over what is otherwise the same illustrations and narrated script. (The accents of the narrators seem to be localized in at least one case, for the Baker Boys Band based in Australia.)
McClintock says he hasn’t counted how many bands are technically in the League at this point: “It depends what you call a band as well,” he says. “There are some bands where it is just one guy.”
But the Lucky Devils roster is not hundreds of musicians, McClintock says. “We certainly know hundreds of musicians in California,” he says, but the number of those musicians regularly doing gigs with the group is closer to 20.
The case is “meant to make it look like a David versus Goliath situation,” he adds, but the League is “a relatively small bunch of guys who are just trying to share gigs with each other.”
Responding to the allegation in the lawsuit that the League keeps more than half of the fee from gigs, McClintock says even “some basic research” by the plaintiffs would show that is false. Musicians in the League are paid a fixed fee depending on factors such as the gig location and the instrument being played, McClintock says.
As for the questions raised about how the Lucky Devils ensures quality among its musicians, McClintock says “it’s a complicated equation” that can include factors like who enjoys playing with who and even who knows who. There have occasionally been musicians who hadn’t prepared enough for the specific setlist for a gig, he says, and the League has let go of members over music quality issues.
The group’s emphasis is “rocking a party,” and its reputation is “based on the fact that we are going to rock the party harder than anyone else for that price,” McClintock says.
“Certainly if a customer says, ‘Can you guarantee 100 percent that we are going to get these musicians?’ — the answer would be no, we can’t guarantee that,” McClintock says. “And any band that says they can guarantee that is lying to you, honestly.” That’s especially true for weddings and other events that bands might land more than a year in advance, he adds.
Cryer ultimately decided to leave the Lucky Devils and start a band to play primarily at weddings throughout the Bay Area and greater Northern California market. Cryer had been the band leader on enough Lucky Devils gigs that he felt comfortable leading his own group at live performances. This time around, he could “guarantee the quality of the band” because he selected the musicians joining him, he says, rather than running the risk of meeting fellow performers for the first time at the start of a gig.
Before moving ahead with a lawsuit against the Lucky Devils, Cryer says he wanted to be sure the case wouldn’t put the group out of business and leave his friends out of work.
“I don’t need Lucky Devils gigs anymore to make a living,” Cryer says, but he decided to file the suit in part for his friends who still play with the Lucky Devils. They need that income, he says.
If the plaintiffs win their case, though, McClintock says it would put the League out of business.
Approaching the suit as a class action seems intended to destroy the business model of the International Musicians League, says Ed McPherson, founding partner at McPherson LLP. McPherson has litigated cases involving the Talent Agencies Act and is not involved with the Lucky Devils case.
There is no rule or law in California that mandates talent agency fees must be kept under 10 percent, McPherson tells SF Weekly, adding that the state Labor Commissioner “doesn’t really care what you are charging as long as it is not outrageous.”
Cryer says musicians are “just trying to make a living in the Bay Area.
“We all realize we’re not going to get rich doing this,” he says. “So, it’s for the love of the music. We love playing. We work hard. We dedicated hours and years into cultivating our craft. And we mainly just want to get paid fairly for the job that we’re doing.”