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Topic: A Cautionary Tale re: MIDI orchestras for theatre

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  1. #1

    A Cautionary Tale re: MIDI orchestras for theatre

    Inspired by Wheat's New York Times post concerning MIDI programs and Broadway

    ANOTHER CAUTIONARY TALE ABOUT "VIRTUAL ORCHESTRAS"

    A few months ago there was a thread on one of these Forums, I think "Tips Techniques and Tutorials," about a teacher assembling a GPO based "virtual orchestra" for his school's production of Sondheim's "Into The Woods."


    I contributed a tangent on that thread, bringing up questions about copyright and the legalities of using computers in amateur stage productions. I also told the story of how a community theatre in my area got in serious trouble using a MIDI generated sound track for one of their productions.


    Several Forum members were quick to say that theatres all over the country use MIDI as either an adjunct to small bands or for completely replacing orchestras. And at least one member said he'd been producing tracks for his local theatre for many years. The general feeling expressed was that it's not a problem. The teacher politely thanked me for the advice and then went ahead with the show as planned, using GPO for the Sondheim score.


    Sondheim, by the way, has said that he will never allow his music to be performed via synthesizers and/or computers. Ignoring legal issues for a moment, I would much rather respect the composer's wishes.


    I myself have produced "virtual orchestras" for amateur theatre. I have had my adaptations of Gilbert and Sullivan done all over the country. But because of the legal run-in our theatre had with New York publishers, nobody in this area is allowed to MIDI-fy Broadway musicals still under copyright.


    Several years ago I managed to get special permission for doing two well-known shows this way, but it was very difficult to get permission granted. In fact, it was only through the direct involvement and intervention of a Broadway composer that one of these shows was able to get on the boards. He instructed his publisher to allow me to do a MIDI version of his score, waiving the usual copyright protection which doesn't allow such a thing. But that battle was only won after a tremendous amount of time, sweat and tears.


    The advice from the publishers in question was to not ever do MIDI scores again, because as legal representatives of the composers whose music they publish, they have no choice but to bust theatres which choose to ignore the copyright laws.


    The sanctions are very severe--at least a $5,000 fine to the theatre, and ban of 5 years duration which prevents the theatre from producing Any shows in their catalog.


    --NEW HORROR STORY--

    Last month, our community theatre decided to again use pre-recorded tracks for the production of a musical. It had been a few years since the legal hassles mentioned above, and the decision makers thought it was safe to again do a show this way.


    A website was found for a new company providing recordings of musicals for small theatres to rent. Here is the site:


    http://aztec-ent.com/trax//index.php...d=30&Itemid=33


    It's a legitimate looking site, and the theatre was quickly assured by this company, "Aztec Show Trax," that everything was perfectly legal.


    THE DAY OF THE SHOW'S OPENING--The theatre's business office received a phone call from the musical's publisher in New York. "Cease and desist" was the message. The show would not be allowed to open without the severe penalties mentioned above being put into effect. The volunteer who answered the phone is an excellent communicator. She begged, she cried, she spilled out the sob story of the hard working cast, of how the show's run was already sold out, of how having the show not open would put the theatre out of business etc.


    The publisher rep on the phone asked for detailed information about this company, Aztec Show Trax. It came to light that Aztec stated in writing, in an email, that their business had a legal contract with the publisher, and that there was no danger at all in using their services. The rep said this was all a blatant lie.


    Hours went by, several calls were made--The rep was digging up information about Aztec, and talking to her superiors at the publishing house. Finally the matter was resolved--The publisher didn't want to do damage to this community theatre, so would not press charges.

    But they guaranteed that Aztec would be shut down and sued. The fact that Aztec had blatantly misled the theatre in that email was the deciding factor in the theatre's favor.


    (--I'm surprised to see that website still online. I expect to see it disappear and for their to be a story in the show-biz columns about the suit against them.--)


    NONE of the New York publishers have given permission to Aztec or any other company to record and provide recorded versions of the shows they cover. Things have NOT changed. To produce one's own MIDI version of a Broadway musical, or to do business with a company doing the computer work is simply not legal. Perhaps worse--it's very dangerous.


    Knowing that small theatres often have difficulty finding musicians for their stage productions, the publishers are slowly making computer materials available--There are MIDI rehearsal aids, and some shows have been worked up into virtual orchestras that can be rented through the publishers. But as with all materials connected to Broadway shows--the librettos, the piano score, conductor's score, individual parts etc---all of this is through the publishers exclusively. They are able to make new contracts with their clients for including MIDI materials--but they will never be providing contracts that make it legal for independent companies or individuals to produce their own recordings.


    I know I know---"people do it all the time." But I am compelled to tell you that as rare an event as it may be, in our area, New York has come down with a sledge hammer on this matter. Several years ago a High School in our state was severely penalized for re-writing a Broadway musical. It's plainly stated in the contracts theatres sign that NOTHING can be changed in the script or score, that no recordings of any kind can be made of or for the show--and when infractions of those contracts come to light, the publishers are severe with their penalties and sanctions.


    Foot note--You may wonder how the publisher in New York became aware of the theatre's plans to use Aztec's services. Because in the local paper's preview article for the show, the director mentioned that the orchestra was to be a recording. Dumb dumb dumb. Publishers have clipping services scouring the nation's papers for indications of copyright infringement. Hence the call--and hence the nightmarish opening day of this show when a very real disaster almost put the theatre out of business.


    Take care all.


    Randy
    (rbowser)
    Last edited by rbowser-; 03-26-2007 at 11:16 AM. Reason: forgot one detail

  2. #2
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    Re: A Cautionary Tale re: MIDI orchestras for theatre

    Randy,

    The use of MIDI orchestas in musical theatre is a hot potato. There are copyright issues (which is unclear and confusing). In addition there could be issues with unions. The use of MIDI Orchestras has been the subject of considerable controversy in recent years. And sometimes the negative publicity can close down a production.

    When this route is being explored, it is best to get the okay of everyone involved - publisher, unions and local musicians - and get the advice our legal counsel.

    Although not musicial theatre, we did this with the LA Ballet's production of the Nutcracker. Although the work was public domain, there were other issues. We sought and obtained the approval of the union and local musicians - this made the production a success. So it's always good to get the approval of everyone involved.

    Gary Garritan

  3. #3

    Re: A Cautionary Tale re: MIDI orchestras for theatre

    Quote Originally Posted by Garritan
    There are copyright issues (which is unclear and confusing).
    Hi Gary,

    Copyright can be confusing, but I think if a composer/publisher owns copyright to a score, they can grant a performance right that excludes recordings and synthesized public performances, if they so choose.

    Our local high school performed Oklahoma this season with a live student band in the pit. The exception was the dream scene, which included strings, and was played from an audio recording. I wonder if this was sanctioned? I'll mention it to the teachers involved. They've been very respectful of copyrights - even when that choice has made things more difficult than is reasonable. They might not be aware of the synth/recording situation though.

  4. #4

    Re: A Cautionary Tale re: MIDI orchestras for theatre

    Thanks for validating my main point, Gary.

    Using synths instead of traditional instruments in musical theatre has of course been a much debated issue for a long time now--ever since musicians started using synths.

    A bigger problem exists nowt because synths and samplers are Everywhere, and people tend to think it's OK to use them in every circumstance they want. As I said in my post, I know that little theatres use MIDI all year round to produce musical theatre, but as my story on this thread shows, it can be a very disastrous undertaking for both the musician and the theatre. Groups are taking a big risk every time they do this.

    Unions aren't a problem on the community theatre level where everyone is a volunteer, and it's extremely rare for professional musicians to be hired. But as I pointed out, even the most humble little theatre group in a small town is not invisible to the New York publishers.

    Every time I've used MIDI in a live production, I've talked with New York, and I've been fortunate to have had special arrangements made several times. But I don't count on that always happening--That's why I haven't produced such a "sound track" for five years now, and am unlikely to do so ever again.

    Jon, I really think the small usage of a recording for "Oklahoma" which you described would be tolerated by the publishers. Technically, it was illegal, but then it's also illegal to photocopy pages from a book---but what does every library in the country have available? A photo copier.

    It's when MIDI/synths/samplers are going to be predominantly used instead of acoustic musicians that the publishers go on red alert.

    I'm on the war path about that company, "Aztec Show Trax." They are playing fast and loose with the law and endangering the groups that hire them. I hope they crash and burn SOON!

    Randy
    (rbowser)

  5. #5

    Re: A Cautionary Tale re: MIDI orchestras for theatre

    This topic remains near and dear to me...

    the theatre where I work most of the time just did "Disney's Beauty and the Beast", and they used a virtual orchestra. I am told that they got the software and MIDI version from the publisher, and I hope that is true, but I did not get involved with that production because it just goes against what I think community theatre ought to be.

    Lest I sound like a curmudgeon (perhaps I am one) I love live theatre and I love live pit orchestras. But I am all too well aware that fielding a first class pit is no easy task!

    When a full orchestra can not be used, either because space does not permit or the talent is not available, what should be done?

    Some argue that a computer played version is the right answer because it will sound "almost" like the original score. True enough, I suppose, if you, as an audience member, lack the creativity and commitment to the willful suspension of disbelief - well, maybe that's the answer. And maybe the majority of folks who go to their local community theatre really do want to hear the original sound track. That's kind of sad...

    I think a better solution is to re-arrange the score for the musicians that are available. A clever arranger can reduce a score without sacrificing the beauty of the composition - most of the time. There are some scores that simply won't reduce well... so if you can't field the orchestra to do it right don't do it!

    But, the current contracts forbid such an approach. I think that is very short sighted of them.

    And there is another alternative that few seek out. There are lots of shows that use "unorthodox" pit orchestras. I just played in the pit for a production of "Quilters". The pit included guitar/mandolin, guitar/hammered dulcimer, bass, violin, flute, and harp. The rehearsal pianist ended up playing for the show as well because we didn't find our dulcimer player till the last minute, and by then the cast was quite used to listening to the piano for cues. We also added a percussionist... well, not really, he was more of a foley artist, but he sat in the pit<G>!

    There are lots of musicals that use small combo configurations, some as small as guitar/bass/drums/keys.

    So, once again if you can't put together the orchestra required by a show like "Oklahoma", "Camelot" or "Wonderful Town" then find out what you can put together and pick shows that fit that criteria.

    It isn't just about the legal issues - though they are certainly important - it's about respecting the wishes of the owner of the intellectual property. I don't agree with the current mindset, but I do have to respect it.

    Recently I read about a question of whether or not the directors contribution should be copyrighted, and if so if the original stage directions then become part of the show that can not be changed. I've read contracts that more-or-less say that already - once again I don't really understand the reasoning. I suppose they are trying to protect their artistic vision, but they do so at the expense of other artists!

    For the most part stage directions are general enough that one doesn't really run much of a risk of changing them. I did work on a production of "Miracle Worker" where the cast stayed on stage the entire time, so I suppose if the stage directions called for a character to exit we violated that agreement. Sometimes it gets silly!

    One other thing to consider - and as musicians we sometimes overlook this - the audience does not come to hear the pit orchestra, they come to see the show. It's sometimes problematic in a community theatre setting, but the show really is the thing.

    (Actually, quite often I go to hear the score as much as see the show - but we've already figured out I'm a little off center!)
    Bill Thompson
    Audio Enterprise
    KB3KJF

  6. #6

    Re: A Cautionary Tale re: MIDI orchestras for theatre

    Quote Originally Posted by rbowser-
    Jon, I really think the small usage of a recording for "Oklahoma" which you described would be tolerated by the publishers. Technically, it was illegal...
    Given that we're talking the finer points of law, I think the term "illegal" is overstating it a bit. (I don't mean to be critical. I'm just having fun parsing language and law - though I am definitely not a lawyer!)

    Major copyright owners and representatives, such as the RIAA, often use the "illegal" term. They would love nothing more than to have the FBI work as their private security force.

    Just to be technically correct, I think the situation is probably best described as "violating the contract". If the publisher wanted to sue over it, they would probably have a case.

    That's the thing about copyright. The cops don't enforce it. The copyright owners do. And if the user doesn't have a contract granting rights, they risk being sued.

    The exception would be where specific statutes exist, such as in the case of selling bootleg VHS tapes and DVDs that are marked with the FBI warning. Doing that is definitely illegal. The feds enforce it, and violators can be fined and go to jail.

    Thankfully, MIDI is probably not part of the criminal code.

    That makes the high school teachers "risk takers", rather than "criminals".

    They might not be aware of the risks though. Thanks for highlighting this.

  7. #7

    Re: A Cautionary Tale re: MIDI orchestras for theatre

    Interesting message, and thanks for the heads-up.

    I do a lot of theatre music direction, and on a few occasions I have used backing tracks. On a few more occasions I have created the backing tracks myself.

    My argument (which may very well fall flat in a litigation situation):

    -Let's say you have a live, acoustic orchestra, but are missing an instrument because there simply isn't one available? For example, your percussionist plays drumset but has no access to timpani, marimba, and chimes. Is it illegal to have a keyboard player play these parts on a synth?

    -Let's say you are missing a reed player so you have one of your reed players jump back and forth between two books, covering both parts. Is it illegal for one player to play multiple parts like this?

    -Let's say you have no budget for your orchestra whatsoever, so you have a piano-only performance (very common). Is it illegal for the pianist to use an electric keyboard alongside the piano in order to fill out the sounds? What about a drum machine to help keep the beat?

    We are sent the scores/parts and given license to realize them. We may (presumably) have players cover multiple parts if necessary, and we may (presumably), use a synth to cover a missing part or add color. So it follows that we should be allowed to have one or two players cover all the parts with a synth.

    When a theatre company asks someone to produce a backing track, they are essentially asking for his services as a performer -- he is hired to be a multi-instrumentalist who performs the whole orchestra as a "one-man-band."

    Anyway, this is my rationale. Whether it holds water in a legal sense, I don't know, but it certainly seems that there is a lot of grey area and it would be hard to know where the line is drawn from one of these scenarios to another.

    Your thoughts?
    chris.

  8. #8

    Re: A Cautionary Tale re: MIDI orchestras for theatre

    Quote Originally Posted by wst3ae
    I think a better solution is to re-arrange the score for the musicians that are available. A clever arranger can reduce a score without sacrificing the beauty of the composition - most of the time. There are some scores that simply won't reduce well... so if you can't field the orchestra to do it right don't do it!
    I have had to do this on occasion, re-arranging scores for the instruments at hand. It's a good solution but it brings up an interesting point:

    Nowadays, our definition of a "musical instrument" is a very wide one. Synthesizers, electronic instruments, samples, loops, etc. are used alongside acoustic instruments in EVERY style of music. There is no legitimate argument that says "an oboe is a real instrument, a Korg M1 is not." There are thousands of thousands of legitimate professional musicians who play electronic instruments exclusively, whether they be synthesizers, samplers, turntables, drum machines, (not to mention electric guitars, basses, V-drums, etc.)

    So if you are "re-arranging" an orchestra, why is it illegitimate to include a synthesizer player in your trimmed down orchestra?

    Quote Originally Posted by wst3ae
    But, the current contracts forbid such an approach. I think that is very short sighted of them.
    Most "grand rights" licenses state something like "this work may only be presented in its entirety, with no edits, cuts, changes, etc." According to this language, a theatre company is in breach of contract if an actor forgets a line! But directors make changes and cuts all the time. They cut scenes for time constraints, they change words or lines because they are out-dated, inappropriate, or sometimes even racist by today's standards. Music directors make similar changes all the time, transposing a part to fit an actor's range, cutting some measures to fit a quick scene change, etc.

    I think *technically* all of these things are breaches of contract. This may be short-sighted, but they keep it that way because it's a slippery slope for them to start saying "well, this kind of edit is ok, but that kind is not."

    (I think "West Side Story" and "Fiddler on the Roof" both state that you must use Jerome Robbins' original choreography. If this were tracked down and pursued consistently, then every single high school in the country would be closed down by now!)

    Anyway, it just goes to show. According to the law, there is no grey area -- any change whatsoever to what's written in the book/score is wrong. In reality, however, these kinds of edits are made every day and I can't imagine even litigators finding some of them unreasonable.

    This is why I brought up some scenarios in my last post. Where is this (de facto) grey area, and what kinds of changes are reasonable? Where do you draw the line?

    Anyway, I am not a lawyer by any means, this is just my interpretation based on experience. If anyone with some legal knowledge wants to chime in, please do so!

    chris.

  9. #9

    Re: A Cautionary Tale re: MIDI orchestras for theatre

    Thanks, Jon, for the explanation of why the word "illegal" isn't accurate in this case. Consequences of breaking that contract, when sued by the publisher, are as severe as those when some laws are broken--So, I guess it is rather a moot point.

    And hello, Chris. As someone who has talked at length with several musical theatre publishers in New York, I can confidently answer several of your questions, though I do not claim to be an expert:

    "...Is it illegal to have a keyboard player play these parts on a synth?..."

    Taking Jon's point that it isn't actually "illegal"--the answer is Yes, it's contrary to the contract. Publishers are being very precise when they say the various parts rented for an orchestra must be played by a musician who plays the instrument indicated by the show's arranger.

    To use a synth to replace Anything is contrary to the letter of the contract. As you can see from my experiences, I do know that special permission can be granted, but as Gary Garritan pointed out, one should always seek out the permission and not Assume that permission will be granted.

    "...Is it illegal for one player to play multiple parts like this?..."

    No. Musicians playing multiple parts seems to be no problem.

    "...Is it illegal for the pianist to use an electric keyboard alongside the piano in order to fill out the sounds? What about a drum machine to help keep the beat?..."

    Yes, that is contrary to the contract. Drum machines fall into the category of synths and are not allowed to substitue for a live drummer.

    "...So it follows that we should be allowed to have one or two players cover all the parts with a synth..."

    No, that doesn't really follow. The only exception I'm aware of is that permission is granted for a synth keyboard to substitute string parts when needed. Permission has to be asked and granted.

    "...When a theatre company asks someone to produce a backing track, they are essentially asking for his services as a performer -- he is hired to be a multi-instrumentalist who performs the whole orchestra as a "one-man-band...."

    Yes, and they're breaking their contract. It's not only the theatre that would be held liable, but the MIDI musician also.

    It's easy to rationalize the use of keyboards in theatre. I wish we were able to do it with no problems, because I know it's the only way some community theatres can accomplish musical productions. I'd love to do more of it, because I'm good at it and have had a great time doing it in the past.

    But the fact remains that it's possible for a theatre to land in serious trouble--enough to ruin them financially.

    AND--I reiterate what I said about Aztec Show Trax. They've shown incredible gall to start that service and lie to their customers. I hope they suffer a Lot when the publishers shut them down.

    Randy
    rbowser

  10. #10

    Re: A Cautionary Tale re: MIDI orchestras for theatre

    Quote Originally Posted by CallMeZoot
    I have had to do this on occasion, re-arranging scores for the instruments at hand. It's a good solution but it brings up an interesting point:
    <really cool argument snipped>
    So if you are "re-arranging" an orchestra, why is it illegitimate to include a synthesizer player in your trimmed down orchestra?
    Excellent point... and I suppose to a degree I'd have to agree. I would not do it that way, but that's me. I don't find it all that challenging to simply play the part into a sequencer - not that this activity is not challenging, it is! - but I find it more artistically rewarding to work with the live players that I have on hand. That isn't to say that I won't write a score that includes synthesizers, sometimes playing caricatures of more conventional (and even that term really doesn't fit, but you get my drift) instruments.

    One of the more interesting activities of the synthesizer age is realizing pieces that were once performed with orchestras using only synthesizers. Certainly that was a real challenge when all we had was Moog and Arp modular synthesizers<G>... and the really interesting pieces (Tomita?) did not try to mimic the original instruments so much as capture the essence - and sometimes they didn't even do that<G>! But now I'm drifting...

    Quote Originally Posted by CallMeZoot
    Most "grand rights" licenses state something like "this work may only be presented in its entirety, with no edits, cuts, changes, etc." According to this language, a theatre company is in breach of contract if an actor forgets a line! But directors make changes and cuts all the time. They cut scenes for time constraints, they change words or lines because they are out-dated, inappropriate, or sometimes even racist by today's standards. Music directors make similar changes all the time, transposing a part to fit an actor's range, cutting some measures to fit a quick scene change, etc.

    I think *technically* all of these things are breaches of contract.
    It is... it isn't a technicality. The contract states that you are not supposed to change the script. That clause is there because the playwright is proud of the words they chose and the order in which they placed them. Same goes for the composer.

    I'll assume that you were being clever with the example of an actor missing a line, but the rest are real practical issues. I personally get annoyed when something is perceived as no longer politically correct - part of the importance of a script is the time in which is was written and the values that society, or the playwright, held dear at that time. But that's an entirely different topic.

    Quote Originally Posted by CallMeZoot
    This may be short-sighted, but they keep it that way because it's a slippery slope for them to start saying "well, this kind of edit is ok, but that kind is not."
    It is a slippery slope, and it is short-sighted. I don't pretend to know how one solves that dilemna. The obvious, but not terribly practical solution is to have over-seers act at the agent of the copyright owner's behest. Yeah, that'd be fun.

    Quote Originally Posted by CallMeZoot
    Anyway, it just goes to show. According to the law, there is no grey area -- any change whatsoever to what's written in the book/score is wrong. In reality, however, these kinds of edits are made every day and I can't imagine even litigators finding some of them unreasonable.
    There's the rub... if you sign a contract and then choose not to abide by ALL the rules contained in that contract you are opening yourself and the organization up to all sorts of trouble.

    If the issuer of the contract finds out, and they find that the edits are not reasonable you will get sued. If they find out, and they don't really object to the changes per-se, but they want to create an example you get sued. If they had a fight with their significant other and sat in traffic on the way into the office you might get sued.

    But beyond all of that is shows a certain disrespect for the contract, the company that issued the contract, and the person that holds the copyrights. I think that is a problem.

    My solution - at least for now? I generally only work on productions of classics! There's lots of them, some of them are really quite good, and they are in the public domain, so as long as we don't violate community standards we're OK.

    Sometimes we stretch the envelope a little bit too far - we did a production of Shakespeare's "Tempest" set in an insane asylum with a small musical ensemble on stage two seasons ago and we got blasted! We were even threatened with a lawsuit from some ant-something-or-other group.

    But thats still another topic for another thread! (Coincidently, I think the lawsuit was dropped when it was announced that "Sweeney Todd" was going to be set in an asylum with the orchestra on stage<G>) Fashions change.
    Bill Thompson
    Audio Enterprise
    KB3KJF

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