At other orchestras, if a composer is allowed a copy of recording he or she must sign an agreement that calls for steep penalties if it is misused, and the tape that is finally delivered often includes “white noise.” These precautions are ostensibly to protect an orchestra’s performance from being broadcast or sold.
Joseph H. Kluger, President of the Philadelphia Orchestra, is chairman of the Orchestra Managers’ Media Committee and has dealt extensively on a national level with electronic rights issues including recordings, broadcasts, and the Internet. He was surprised to hear that many composers were having trouble getting recordings of their works and that some recordings were being electronically altered.
“I’m trying to decide whether I want to be quoted as saying that’s ridiculous or absurd or both …If that’s being done it’s because what I would call the irrational fear that somehow these recordings are going to be pirated. Who are we kidding here? These recordings are not hot like a Rolex watch. We should be so lucky that people would want to steal these recordings.
“It is conceivable that there are some orchestras where they don’t want to do this,” he continued. “But I don’t know where the resistance is coming from—the musicians in the orchestra or the union that represents them. In my experience, if the request is made in advance and it’s reasonable and the composer agrees to abide by the restrictions, there should be no problem.”
To see if Kluger’s optimistic view was being put into practice at his own organization, follow-up inquiries were made with two composers who have had major works commissioned and premiered by the Philadelphia Orchestra, Jennifer Higdon and Aaron Kernis. Both composers were provided unaltered tapes shortly after the premieres.
Kluger claims that to the best of his knowledge “there is absolutely no agreement, no contractual prohibition that I’m aware of on national or local level that precludes an orchestra from giving a tape copy to a composer, assuming that the composer asks for it, agrees to the promises that he won’t do anything with it other than use it in his own archive.”
Yet a conversation with Deborah Newmark, director of Symphonic Electronic Media at the American Federation of Musicians in New York and two discussions with John Grimes of the Boston local reveal that there are plenty of agreements to be surmounted.
Newmark provided a copy of the AF of M’s Composer’s Personal Use Tape Letter of Agreement, which, according to sources, was drawn up by an industry committee organized by the National Music Council. She claimed that it is the agreement to be used “by all orchestras with collective bargaining”—that is to say all orchestras with union musicians under contract.
The three-page agreement, which carries a revision date of February 1998, states that the recording of the particular piece will be sent by the orchestra to the Upper Montclair New Jersey offices of the National Music Council “for the purpose of making a duplicate copy of the performance with electronic processing which will render it unusable for broadcast, synchronization or sale.”
The agreement further details the particular way the tape will be altered:
This process will entail mixing a modulated signal of white noise with the program material. The modulated white noise is to be faded in for five (5) full seconds, at ten (10) second intervals throughout the recording, at a level which is clearly audible but does not completely mask the original program material.
The costs of the tape processing, the agreement stipulates, “will be paid for by the composer of the tape.”
Later the agreement states that if the tape is misused, in “broadcast, phonograph records, promotional spots or commercial announcements, theatrical or commercial exhibition, or background music for any type of sound or film program,” then the orchestra—not the composer—will be required to pay the AF of M 200% “of the prevailing wages and allied fringe benefits.” The agreement has signatory lines for the orchestra, union, and composer.
An addendum to the agreement is the Certification of Compliance by which a member of the orchestra, as chairperson of the orchestra committee, signs off that “a secret ballot vote of the orchestra was taken, and that a majority of its members have voted in favor of permitting an audio tape to be created.”
In sum, there’s a considerable amount of red tape required for getting a white noise tape. And though the process is clearly laid out, there’s no guarantee that musicians, especially if they’re distracted by contract negotiations or are otherwise feeling disgruntled, will vote in favor—as a handful of composers with premieres by the Chicago Symphony Orchestra recently found out.
The so-called white noise tapes are becoming increasingly common and, not surprisingly, they stir strong feelings.
“The white noise tapes are of no use at all,” says Jessica Lustig, who as a founding partner of 21C Media Group, regularly introduces conductors and artistic administrators of major orchestras to new works by composers from her roster, which consists of many of the top American composers writing for orchestra today including Higdon, Steve Mackey, David Del Tredici, Augusta Read Thomas, Michael Hersch, and Michael Daugherty.
One of the only composers who brought up white-noise tapes for the record was Sheila Silver. In an email recounting some experiences both good and bad, she said: “The worst experience was with the New York City Opera readings—they purposefully put white-noise on the tapes so that we could not use them—and made us pay for the privilege.”
Tom Broido of Theodore Presser, sat on the National Music Council’s committee, which drew up the Agreement supplied by AF of M Contradicting Newmark’s assertion that it is a required procedure for all orchestras, he said that it is merely recommended.
“It is not binding on the orchestras,” he said. “It is a national suggestion, but left up to each orchestra.”
To a certain extent Broido also defended the addition of the white noise.
“It is useful in that if every conductor could read a score… even (for) those who can, you want to be able to show something of the lay of the land. Even with the hisses, it gives you the opportunity to get an idea of the work,” he continued.
Composers, though unsatisfied, seem to be willing to take what they can, noise and all. Yet there are additional problems with agreements, whether mandated from a local or national union or by a particular orchestra.
“The triple-damage-waivers that I’ve had to sign have more and more ominous language and restrictions,” says Kernis.
An example of how such damages would be invoked: A live recording tape is broadcast on radio in violation of an agreement. The union is alerted to the broadcast and decides to “press charges.” The composer is now responsible for paying double or triple the union rate that the orchestra would be paid for a broadcast. This can quickly escalate into many tens of thousands of dollars.
“There are some absurd releases that are just ridiculous,” continues Lustig, “and composers are under the gun at the concert.” Lustig said that she has repeatedly witnessed composers being given important legal documents to sign on the evening of a performance.
Derek Bermel may be speaking for a lot of his composer colleagues when he says: “I wonder in this industry if everyone’s just tripping over all of this legalese… The amount of money being made seems to be so out or proportion to the amount of legal jargon.”
from Red Tape: The Difficulties Orchestra Composers Have Obtaining Recordings of their Works
By Joseph Dalton
© 2003 NewMusicBox