Orchestra Unions 101

April 6, 2022

Arts consultant Joseph H. Kluger, ACO President Melissa Ngan, and Artistic Director of the London Philharmonic Elena Dubinets present the basics of orchestra unions and answer attendee questions about common aspects of the union relating to orchestral composers.

Joseph H. Kluger, a Principal of WolfBrown, has over 30 years of experience as an arts and culture executive and consultant in strategic planning, organizational collaboration, facilities development, governance, executive coaching, executive compensation and succession planning projects for nonprofit museums, theaters, opera companies, symphony orchestras, performing arts centers, and arts education institutions.

A high-profile artistic leader and music scholar, Elena Dubinets was appointed Artistic Director of the London Philharmonic Orchestra from September 2021, having previously held top artistic planning positions at the Atlanta and Seattle symphony orchestras. In 2018 she was named one of Musical America’s Professionals of the Year. Serving the wider music community, she has held appointments on the Recording Academy Board of Directors and as Chair of the City of Seattle Music Commission.

Additional Resources

Transcript

Melissa Ngan:

Hello, everybody! Welcome back! We are really excited to be here today. My name is Melissa Ngan, President and CEO of the American Composers Orchestra, and it is my pleasure to welcome you to today’s professional development session. This is part of a series that we are presenting in connection with our earshot composer advancement programs and in partnership with the American Composers Forum.

Today’s session is titled Orchestra Unions 101, and I’m joined today by 2 wonderful panelists, Elena Dubinets and Joe Kluger. A high-profile artistic leader and music scholar, Elena Dubinets was appointed Artistic Director of the London Philharmonic Orchestra from September 2021, having previously held top artistic planning positions at Atlanta and Seattle Symphony Orchestras. In 2018, she was named one of Musical America’s Professionals of the Year, and Joe Kluger, who is a Principal of WolfBrown, has over 30 years of experience as an arts and culture executive and consultant in strategic planning, organizational collaboration, facilities development, governance, executive coaching, executive compensation and succession planning for nonprofits, and also is a phenomenal consultant with respect to media rights. So really benefited from his expertise over the last year.

I’m really looking forward to today’s conversation and wanted to share a few reminders at the start of today’s session you can use the Q&A button below the video to submit your questions to the panelists, or to raise your hand if you’d like to join us on screen to ask your question in person. We’ll also have questions answered throughout the session today. So, you’re welcome to raise your hand or ask a question any time, and we will call on you. And you’re also welcome to use the chat function to interact with your fellow attendees.

This panel will be recorded and available on ACO’s YouTube Channel and on ACF’s website, and before we begin I’d also like to thank those who made today’s series possible: the Stephen R. Gerber Trust, American Composers Forum, Virginia B. Toulmin Foundation, New York State Council on the Arts, New York City Department of Cultural Affairs, our individual donors, and of course, our ACO staff Lindsey Werking, Aiden Feltkamp, Stephen Behr, Derek, Bermel, and Sydney Cusick.

So, thank you so much for being here today. We greatly appreciate it, and I’d like to take this opportunity to welcome Joe and Elena. Welcome and welcome to today’s webinar!

Joe Kluger:

Thank you very much, it’s nice to be here.

Melissa Ngan:

Absolutely! Well today’s session is on orchestra unions, and this is a very, very big and broad topic. We’re inviting both of you… Joe, I know that you’ve had a phenomenal amount of experience, both as a leader of an orchestra, a consultant, and also with the EMA now

negotiating media rights at the national level. And, Elena, I know that your experience really touches on this from the perspective of artistic planning and administration. What it takes for an orchestra to manage these relationships in the creation of new, adventurous artistic work.

So really the way we’re framing this conversation. The piece of the conversation that’s around, orchestra unions is about the intersection of union relationships and musician agreements with the creation of new artistic work. So how does that impact some of the work that composers do with orchestras, with respect to writing new pieces, delivering them, rehearsing them, and of course, performing and recording them.

So that’s the lens through which today’s conversation will take place. And I know that we’ve prepared a number of materials for you. So I’m gonna go ahead and share my screen first so that we can go ahead and get started today, and we’re going to start off with a few definitions.

So essentially the goal here is first to understand what the musicians’ union is. So, Joe, I want to bring this to you first. Share a little bit about the AFM…The American Federation of Musicians: what that entity is and what it is meant to do.

Joe Kluger:

So, the American Federation of Musicians is a national umbrella structure that represents really all unionized musicians in the United States in setting national principles and guidelines, by which musicians are employed in orchestras. They also, on an active basis, negotiate terms and conditions for electronic media activities that take place out to a local area. That’s particularly recordings and streaming and other activity like that.

We’ll talk a little bit more about that in greater detail. What’s interesting about the…we use the acronym AFM here…is that there are also local chapters of the union in each city, or in each region. And those entities that are…think of them as affiliates of the national AFM…are separately incorporated, and they are responsible for negotiating collective bargaining agreements that govern wages and working conditions for musicians, for rehearsals, concerts, and local digital media activities. And those are negotiated either directly with an orchestra management team.

But in some cases, if your piece is being performed by a per service orchestra, that’s just a pickup group or isn’t necessarily employing musicians on a long-term basis. Sometimes a local union will set minimum rates and conditions, and then an employment group will decide whether to use them or not. But essentially, you’ve got an umbrella structure on a national level that works cooperatively with individual local organizations.

And what governs the work, the new composition that you might write, that gets performed for the first time, or as a repeat performance, is partially…rehearsals and concerts are covered by the local CBA, the local Collective Bargaining Agreement. And to the extent it is recorded and distributed, it’s usually the local CBA that covers local radio and television broadcasts if there are any. But it’s the national agreement and the national AFM that governs terms and conditions for distributing that content outside the local area in which the performance takes place.

Just 2 other groups of people that you need to be aware of when you come into a community and are preparing a work, you have an agreement, a contract that governs a lot of how the work is done their rules and regulations about that. But there’s a usually an Orchestra Committee, musician representatives within the orchestra that work closely with the management work in that organization to interpret the agreement, to help you understand. Okay, the rule says the rehearsal has to start at such and such a time, and it has to have a break in between.

And so, a lot of issues get addressed in terms of how those rehearsals take place, whether you can have overtime or not. Issues relating to instrumentation. All of those sometimes require interpretation of what not only a contract says, but what it is intended. Lastly, maybe one of the most important people to get to know when you come into the orchestra environment is the personnel manager. It’s somebody on staff who keeps track of musicians and how they are assigned to works and concerts. They’re in charge of hiring substitutes and extras, particularly if you need an unusual instrument performed, and their job is to keep track of the administration of the agreement.

I tell managers and union representatives with whom I work, that there are certain guiding principles that should apply to all of these situations. Even though there’s a contract and sometimes there are tensions in the negotiation of those things. But the successful relationships are built when the musicians and management and the Union all have and are working towards a shared set of goals and objectives. When people involved in the system are honoring the intent of the agreements, as well as the letter of them, and they’re not trying to, you know, take shortcuts, or take advantage of ambiguities. And the keys to good relationships are: listening, being transparent, direct, and honest, and always making sure you understand what the other parties to that agreement want. The “why” of what’s in in those agreements.

Melissa Ngan:

Yeah, that’s really great advice and we had a session a few weeks back on commissioning agreements and consortia. So a lot of this is really reinforcing and echoing a lot of that as well as our last session with Aaron Kernis, where we were talking about the different relationships that you need to have within the orchestra. So, it’s great to have that personal manager, highlighted as someone else who was really good to get in touch with and get to know as part of the process as well.

And I want to dig into one quick thing for clarification. So, you mentioned “honor the intent and the language” of an agreement. Can you share an example of how intent and language might be similar? But not the same.

Joe Kluger:

I should have been prepared for that and I don’t know. I’ll think about that as the as we go along and see if someone comes to mind. I can speak to that more clearly when we get to some of the digital distribution agreements, where I think there are some nuances. Rehearsals and concerts are usually more straightforward in determining what the rules and regulations are.

Melissa Ngan:

Right.

Joe Kluger:

It’s more of a philosophical statement than a specific one.

Melissa Ngan:

Then a practical one. But really, I think that that speaks very well to the first point, which is, if both parties understand what we’re there to do, and what we’re there to accomplish, and what’s important to the other party. It can be helpful to interpret the language in such a way that it’s consistent with that. So, there might sometimes be little twists and turns in legalize that that might not be as tightly defined by those larger principles. But I think it’s really great advice to keep those in mind.

And then one last thing that I wanted to just ask is as we’re thinking about the way that collective bargaining agreements are negotiated and what the Union is there to do. You know, it’s just like any other agreement or a contract, which, again, when we were speaking about what composers need to be thinking about in their commission agreements, oftentimes it tends to be informed by past experiences, right? So, when a situation has occurred that gets in the way of musicians’ ability to do their jobs well, oftentimes that comes into a collective bargaining agreement on the next round.

So, it sounds like a lot of what the AFM is there to do is to make sure that musicians have what they need to perform well, and that a lot of what they’re looking at is the past precedent of things that have either stood in the way of that or facilitated that. Does that feel right, Joe?

Joe Kluger:

Yeah, yeah that’s exactly right, and that’s partly why I said “what’s the intent of an agreement?” and management of orchestras that resolve problems when they come up are less likely to end up with 85 page contracts.

Melissa Ngan:

Yeah, that’s a really great piece of advice, and so, I want to come now to our next topic, which is really around the creation of new work. And also, I want to come to Elena with these questions.

Here we have a lot of terms in a CBA or Collective Bargaining Agreement that really do touch on the steps in the process that are typical for a commission or for a performance of a work by a living composer. And oftentimes, a composer might not know what all of those are, which is one of the reasons why we’re coming into this session. So I’m really grateful to have you here to speak about this from the perspective of artistic planning and program development.

So, I’m wondering if you can share a little bit about how some of the typical terms in the CBA govern and impact programming for the orchestra?

Elena Dubinets:

Happy to! First of all, thanks for having me here it’s exciting to be able to share some knowledge about this process, and it’s also my assumption that you have covered some of these elements when you were talking about the commissioning agreements, because many of these points should be negotiated as part of those agreements, either between the composer and the orchestra, directly, or between the publisher or an agent.

Now many composers have managers, and they negotiate with the orchestras, so some of it might sound for me and stop me if I’m repeating stuff that you already know and don’t want to hear again. But I’ll start with some basic stuff notification timelines and timelines for changes.

What’s really important to understand is that the orchestra is inflexible. It’s a slow machine. We need to prepare for everything very very early. It’s a really big, steep train that is slow to start and slow to finish, and what happened in the middle of the ride is also quite slow. So, if a composer suddenly decides to change something within that time line, it affects many constituencies within the organization, and it’s really important to understand it from the get-go.

Every orchestra will have slightly different timelines for their preparation process. What I will be sharing is general information for, let’s say, major American and European orchestras that plan their seasons about two years out. Typically, when a piece is placed on the program for an upcoming season or for two seasons out, we start preparing for getting the music at a certain time, and at some point the conductor and the soloist will want to start learning the piece.

So normally, we ask the composers to send us the first draft of the piece about six months out, six months before the performance, but no later than four months out, and I would say that it’s very important guideline for your work. If you get delayed with your processes, the orchestra might actually decline play in your piece, if it’s a major orchestra. They might want to postpone because they preparatory process will be distorted.

So, four months out is your final deadline, so to speak. However, you can continue working on small details a little longer, and typically 3 months out is when the very final score and the parts are required because the librarians need to start working on the bowings and marking the parts and preparing practice parts for the musicians. And they usually, librarians, are no less important than personnel managers for the composers processes because they are also unionized. They’re often members of the Union and you really need to follow the guidance that is provided by the CBA of each orchestra, in relation to the librarian timelines. They are usually your best friends as well. You want to get to know them as early as possible in the process and win their trust and support because they will be helping you when you are already on the ground for your premiere. It’s a very important relationship for every composer.

About eight weeks out orchestras begin preparing the publicity materials. Of course, they will have posted some information on line and print it in the season brochure, but typically more extensive information for the program books is required about eight weeks before the performance. So, if you are planning to write a program note for your piece, do it before then.

And also, during the process, during the entire process of composing a piece, you should be prepared to satisfy certain requests that might not be thought of as part of your regular processes, such as potential meetings with donors. Let’s say if there is a sponsor supporting your commission.

They might want to see the score, or the drafts, or talk to you, or some of them enjoy a meeting with you in an informal setting, and they might ask you to play through your piece or play segments of your piece, which is sometimes embarrassing, but you just should be prepared for it because it’s becoming — in the current economic climate, they should say — orchestras are becoming to ask for personal communications more and more.

Now, what’s important to understand is that the instrumentation that you discuss in your commission in contract should not be changed later in the process. It can be changed, and we will talk about how it can be done if you absolutely demand certain changes. But ideally you should specify the instrumentation when you are discussing your contract because it will reflect upon who is hired for your performance. How the doublings are, you know, identified, and all additional elements will be discussed along these lines.

For example, if you want the musicians to speak or whistle or, let’s say, wear something like a hat or use any kind of a prop needs to be discussed at the time when you’re negotiating your contract. Because all of these things believe it or not can require additional payment, and the management should be able to budget for it appropriately before you submit the score. It’s too late to do it at that point, you know they might say no to you because you didn’t satisfy the requirements of the Commissioning Agreement if you start coming up with these additional elements later in the process. So, think about it ahead of time.

Now, if there are differences in instrumentation, for example, if you would like to add some instrument that is not normally used in that particular orchestra, let’s say an Oboe d’amore, it’s really important to discuss that instrument very early on in the process because some players might not be able to use that instrument. You know, they might not have that instrument, and the orchestra would need to somehow borrow it, or, you know, purchase it, even.

So again, think it through very early because it’s not only your creative initiative that gets engaged right here. It’s only a ton of budgeting considerations that are also related to CBA requirements.

Now, due dates — you already mentioned that some of them do exist in in the CBAs, but there might be some additional considerations that you might want to know. So, whenever you are talking to an artistic administrator or a personnel manager, who probably won’t be your contact until the very last moment. But perhaps you will be talking to a librarian very early. Ask them about additional requirements that a particular orchestra might have.

For example, when they put out their practice parts for the musicians it can vary, and it doesn’t necessarily get specified, in CBAs. Typically it’s about two weeks out, but it might be different. Now, ask them if they allow for pencil markings or if they use electronic tablets. It’s not a common thing yet, but some orchestras, especially chamber orchestras do use them, and it’s a very different process of preparing the parts, and especially of marking the part during the rehearsal process that you need to be aware of.

Libraries often will want to keep the original copies of of your parts and scores for potential repeated performances later on. So, you really need to pre-consider or your publisher should pre-consider how to share your music with other orchestras. For example, if there are multiple co-commissioning orchestras as part of your project, the first orchestra wouldn’t necessarily lend your music to the following orchestra, which is somewhat counterintuitive, but sometimes situations like this do happen, so please keep it in mind and talk about it from the get-go.

Sometimes copies could be made or sometimes the original scores could be learned to the other orchestras, but then they would need to be returned to the original orchestra, to the premiering orchestra. So just talk it through with your best friend librarians when you start working with them.

Now, if you do envision changes, if you cannot deliver this piece without changing the instrumentation or any other element, please do talk to multiple people about it, not just to the conductor. Sometimes conductors can become too busy. You know, they are busy people, and they just might not think through all of the repercussions of your changes. Please talk to the artistic administrators, in addition to the conductors. Even if you have the best possible personal relationship with the conductors, do talk to the administration and talk to the librarians.

Now, when you start getting closer to submitting the parts think about the process of bowings, and how the revisions can be made. I already touched upon it, but typically during the rehearsal process, you will want to be as close to the librarians as possible, physically, in terms of physical proximity to where they are located in the building, and sometimes, libraries are not even in the concert halls. You know there are different situations for each orchestra. What I recommend doing usually is setting up a librarian right behind the stage or right in the wings so that you could run basically during the rehearsal and tell them something if you need an immediate change. And changes do happen all the time, don’t be afraid of it! I’m not trying to deter you from making changes to your you know to your project if you believe in them, but you just really have to communicate them very carefully.

And what I suggest doing is, when the changes get implemented — for example, if you have alerted the conductor, the artistic administrator, and the library about these changes — then try to ask them how they’re gonna communicate them to the musicians, because you just don’t want your information not to be shared appropriately at the last minute. And what we have done at my previous orchestras was, you know, simple stuff like posting some notes in the elevator when the musicians are writing the elevator on the way to the concert stage area, you know, or of course you can email them, but sometimes they wouldn’t check their email, so post some signage on the walls of the concert hall. It might sound silly, but it does help the process. You really want to be as clear as possible about your changes.

And always discuss the timeline. If changes do happen at the last minute — for example, if your piece was written in such a way that some musicians might not be able to deliver it, if there are certain issues such as you might have not be considered some rests for the musicians to for their hands to relax a little bit in the middle of a very long passage — they will tell you about it and, you know, I have experienced commissions when we had to alter the instrumentation on this spot during the rehearsal in order to somehow release the load of the musicians. We had to distribute one part between two musicians. I’m not gonna name the composer or the piece or when it was happening, but it was a real-life experience.

So, if it happens talk to the musicians afterwards. Express your feelings about it. Apologize maybe. You do want them to be positively predisposed towards you before the actual concert before the performance. They have to deliver your piece to the best possible results. And if you happen to make a mistake or if you just didn’t think about something, it’s to your advantage to be asked nice about it as possible. It’s again a silly suggestion, but it does help the process sometimes.

What happens if you haven’t finished your project in time. You weren’t able to complete your project for any reason. Health reasons, you know. Miscommunications. Things happen. We all are human beings, and you know postponements happen all the time. First of all, again, talk to people. Communicate very clearly about your reasons. Be as transparent as possible. It always helps us, you know, to understand why you are doing certain things in a certain way.

And then ask about potential options. Of course it’s ideal if your premiere can be postponed, let’s say, until the next concert, which is almost impossible for major orchestras. Quite often, they will offer you a slot on the following season.

But you should remember that if your piece was co-commissioned, some pieces of the puzzle might change accordingly. For example, if the first orchestra had the premiere rights, would they now go to the second orchestra in line or would they still be retained by the first orchestra but the season later? But what if the second orchestra was in the middle between these two dates? You should be able to navigate these issues to everybody’s satisfaction. You don’t want to upset orchestras because you want to continue working with them in the future.

Same goes for recording rights, for example. Quite often orchestras negotiate the recording rights early on, and Joe will talk about the media agreements later. What I’m saying now is that sometimes the premiere recordings would be made only archival, and the proper recording for a CD release, let’s say, would be negotiated for another orchestra, especially if composer is aware of his or her own, you know, predisposition to changes after the premiere. Quite often composers do alter their scores after the premiere, and then they want to record the updated version, and their publishers would negotiate it ahead of time.

So again, what would happen if your initial performance gets postponed? Would the recording rights be kept the way they had the negotiated? Or would they need to be changed? If your piece couldn’t be postponed, if the orchestra decides to completely cancel your piece, what are your other options in this situation? Would you transfer the premiere rights to the next orchestra, or would you be looking for the next orchestra? Or would you still try to convince the first orchestra?

You know, all of these are essential questions for artistic planning, and you should be thinking about them when you are negotiating your agreements, and especially during your process. And what I’m trying to say here again and again is that you should really try to satisfy the timelines that you have negotiated. It’s really not good practice to be late with any of this.

Joe Kluger:

Can I just ask one…I just want, thought of one other thing to highlight on this this topic. Back up to instrumentation. One of the things that some composers like to incorporate into works these days is electronic elements. So pre-recorded music that then gets added to a piece that’s performed live. You have to be really, really careful about clarifying that issue in advance to make sure that that what you are recording on an electronic basis is not displacing the employment of union positions. That’s a very sensitive topic, and you really got to clarify that in advance with your commissioning partners.

Elena Dubinets:

Absolutely, thank you. And I’ll also say that quite often conductors will be less excited about commissioning the piece when it includes an electronic element because they might think that the synchronization issues could be required in this case. But of course, electronic components can work in multiple forms and shapes. So be very clear how you are planning to use electronics, and if it will require, you know, some sort of a click track and synchronization.

Melissa Ngan:

Yeah, that’s really great. And one of the things I really appreciated about what you the way you framed this entire section is you’re really outlining for us the many domino effects of any particular decision. So, if you are late on one particular thing, marketing, librarian, you know, the parts getting to the orchestra musicians, the recording rights, the delivery of scores, and the premiere dates for other orchestras — all of these things are implicated by that. So it’s just really important to note that that’s the case.

Just to drive this point home a little bit further thinking about doubling. You might not think it’s that big of a deal to say, “oh, I think a lot of contrabassoon today.” But, I will say, that’s a huge issue, especially from the perspective of an orchestra that is per service. Let’s say that you’re hiring for an orchestra, and you know who you need based on the commissioning agreement, and you’ve hired a second bassoonist who is a wonderful bassoonist but doesn’t own or play contra, and all of a sudden, the part is delivered, and it has contra in it. Not only are you an issue of having to deal with getting that instrument through the door, but you might have to be thinking about, what would it mean to replace this person, which is awful. That’s not at all what you ever want to see.

Joe Kluger:

There’s a very famous story. I don’t remember the work, but the Boston Pops or the Boston Symphony played some work where the arranger or the composer wanted the musicians in the orchestra to play a rubber ducky. It was a Sesame Street piece, and the Union said, “Well, that’ll require doubling, because rubber ducky is not part of the individual.” So that’s a famous situation that requires clarifying these issues in advance.

Melissa Ngan:

For sure, anything can be doubling, so it’s just important to realize that that’s a cost and that’s also a…can the musician do it? Is that the right person for the right job? So, if you change it to the last minute that can be an issue, or if it’s not clear and consistent with the commission agreement or the listing at the front of the score, if we find it part way through the score in a notation, that can also be an issue.

And Elena or Joe, please feel free to hop in on this question. I’m curious if you can let us know what the financial implications are of lateness. I’ve seen situations in which composers are maybe charged some fees, if those scores and parts are not delivered on time.

Elena Dubinets:

I haven’t seen situations like this, but your piece can be canceled, really. You know, especially if there are marketing concerns, and there, you know, there will always be marketing concerns in relation to any contemporary piece. Because, of course, what we do when we program a contemporary piece, we use, a so-called opportunity cost, that could be utilized better from the perspective of our marketing colleagues. Quite often you could place a Beethoven symphony there instead and bring many more people, as they think. So they will push artistic administrators to reconsider if the piece is late, and you know, they can’t get it in time for the performance.

Joe Kluger:

So yeah, commissioning agreement is going to specify this. Usually there’s…you get a fee up at the beginning, and then there’s an additional fee paid when you deliver the score and parts, so there’s an incentive for composers to comply with those timelines. Some composers are notoriously late, but I think it’s important to try to deal with it.

I think, on a time issue, this may sound completely obvious, but if you are commissioned to write a 20-minute work, don’t write one that’s 40 minutes.

Melissa Ngan:

Oh, yes.

Joe Kluger:

Because the consequences of that in terms of rehearsal time and performance overtime are tremendous.

Melissa Ngan:

It’s not a gift. Yes, thank you. I appreciate that. And a couple of questions that are coming through in the Q&A window. So, Elena, you had mentioned that part preparation is a huge thing, and I know we talked about that with Aaron Kernis in our last session, that this is often the way in which musicians will get to know you, is how that those materials are, and also the librarian too. So, the question here is, is it appropriate for the librarian to refuse materials that aren’t prepared satisfactorily. In other words, if there are no page turns, the music’s too small or too big, or takes too many pages. So, we’re talking about how in a lot of agreements you have to align with MOLA guidelines.

Elena Dubinets:

Yeah, so you have to do it. They will turn you in away. You will have to run back home, and redo everything last minute you know. It’s a really big issue, especially in the major American orchestra. They’re just not…they don’t have time to read your handwriting and to go through your scribbles. These requirements are not random. They have been proven by many years of experience and it’s really essential to satisfy them. If your font is too small, your musicians will come and tell you that they can’t read your music. If the page turns are not organized very well, usually librarians will catch it ahead of time, but you will be adding more work to their plate, and it’s not a happy situation. You really need to think about all of this ahead of time.

Melissa Ngan:

Yeah that’s really great. And just very briefly because I know we have a lot more to get through. I know you mentioned that some orchestras are using PDF parts. Do you see more orchestras starting to do that? And do you see any differences in how parts are prepared?

Elena Dubinets:

You know it’s still very expensive to do it for large orchestras. Some of them have done it, but I don’t see it happening on a regular basis in the near future. But, if you are working with a chamber ensemble, then  it’s a reality. You know, what’s happening right now, many of them are using PDFs. And you cannot quite mark them effectively the same way you mark your paper copy, using a pencil. You know, it’s much more efficient to use a pencil.

But of course, then you should be thinking about how your original music is going to be used in the future. As you know, librarians usually erase pencil marks when they give the music to back to the publishers or to the next orchestra. If you make a copy from a paper copy with the markings, then the markings stay on the copy. You can’t quite erase them at that point, so again you really need to preconsider how the rehearsal process is going to be organized. And if an orchestra does happen to use electronic tablets, you need to know about it, and you need to plan for it in advance in terms of preparing the parts.

Melissa Ngan:

Perfect. So, I know we have a lot to get through in terms of media rights. So, we did want to share a little bit about the rehearsal process itself. So, Elena, if you could give us your top line pieces of advice on how to work through rehearsal process, that would be lovely.

Elena Dubinets:

Yeah, one of the pieces of advice has just been shared by Joe: do not exceed the length of the piece. Because it does affect the rehearsal plan, and I have been in multiple situations when the concert length just couldn’t be extended, and the composer would deliver a piece which would be much longer than what we had expected. And the orchestra would need to go into overtime, and, you know, pay musicians much more, and also the attention span of the audience really needs to be considered from the get-go. And if you exceed your length, then it creates so many problems for all of us on the other side, that it’s really not advisable. If you do need to change something, tell us ahead of time at least three months out, so that we could adjust our, you know, planning processes.

When the score is delivered, or draft score is delivered to the conductor, that’s the moment when you should be starting, talking to the conductor and the artistic administrator about rehearsal plan because the length of the piece will affect how rehearsals are scheduled. And quite often the conductor will decide how many rehearsals the piece should have after seeing the initial draft. And I should just warn you that typically you shouldn’t expect, especially if you are an up and coming composer, you shouldn’t expect that your piece will be rehearsed thoroughly. You will only get a maximum of two rehearsals. Maybe, let’s say, half an hour each for a ten-minute piece. You know, there are no rules here. I’m just randomly naming some figures. But Joe, did you want to comment?

Joe Kluger:

Well, I wanted to say that because of that you’re dealing with orchestras that are very soon talented, sophisticated professionals, but you have to make sure that the piece you’re writing is not so complex that that it’s not “rehearse-able” in a couple of hours, as you outlined. I’ll tell you one more story — when I was running the Philadelphia Orchestra, we commissioned Milton Babbitt to write a piece that was determined by several conductors to be unplayable. So, we got to the rehearsals, and it fell apart. It eventually got premiered by Gunther Schuller, but with a student orchestra, where he had 24 rehearsals for it.

So, you’ve got really got to write something that, even if it’s sophisticated, can be played and rehearsed in a relatively short amount of time.

Melissa Ngan:

Right, and it to me, I would say, know your partner, know your situation, right? Like where we ended with the session we did with Aaron Kernis was that: in a typical commissioning and rehearsal situation, everything that Joe and Elena just shared is 100% true. If you want your piece to come off well, you’ve got to write it in such a way it’s accomplishable in that period of time. And then I would also say that I hope that more orchestras will think about what it means to create more of a laboratory process. I know that’s something ACO is doing. Then if you find yourself lucky enough to be in that scenario, more adventurous things might be possible because you have the time to do them. So it’s really just a question of the personality the institution and how much time you know you have at the outset.

Elena Dubinets:

Yeah, exactly. So, what rehearsal process begins it’s already too late for prepare your piece properly. You really should be talking to representatives from the orchestra very early, and the order of the rehearsal is quite essential, for, you know, preparing your piece properly. Quite often composers are able to convince the conductors to put their pieces at the top of the rehearsal process, which is really good advice, I would say, because it would not limit the conductor to the time that would that he or she could have at the end of the rehearsal having rehearsed the rest of the program, right? They might have only let’s say twenty minutes left for your piece, and it wouldn’t be enough. So try to push for an earlier slot. If they could start with your piece and spend, let’s say, almost as much time as you would like them to spend on your piece, it’s always a better situation. Now, if you think that there should be sectionals in the piece, it’s not gonna be your decision, it’s a conductor’s decision. But you could point it out to them, and I’ll give you a very good example that I am actually working on right now.

London Philharmonic just announced their 2023 season. So, it’s not a secret anymore. We will be doing the UK premier of a major orchestral cycle by Heiner Goebbels. It’s his new piece, which is called A House of Call, which was premiered earlier this season by Ensemble Modern and will be bringing it to London next season. He quoted a pretty substantial chunk from a piece by Pierre Boulez. So, what he’s telling us right now is that we should allocate some rehearsal time prior to rehearsing his piece to prepare that section from Boulez, because as you know, Boulez’ language is very difficult. It’s one of those situations that might happen that Joe just described to us, and the composer has been very proactive in letting us know that we really should plan our rehearsal process appropriately. And this is what I would recommend to all of you in every situation.

Melissa Ngan:

Yeah, that’s great advice, and I know we need to move on to media rights. Is there any last pearl of wisdom that you would give before we do?

Elena Dubinets:

Well, probably bowings because you will want to work with the concertmaster if your piece is somehow involved in terms of bowings. And again, establish that connection very, very early in order to have direct access to the performer — of course, always in partnership with the conductor. But sometimes it does help to talk to the principals.

Melissa Ngan:

That is beautiful advice. Thank you so, so much for all of the context and all of the understanding of how these relationships work really well together.

So, Joe, I’m coming back to you. This is your area of expertise on a national level. We’d love to hear a little bit more about digital projects, media rights, all of the things that we care so much about with respect to how work gets documented and shared.

Joe Kluger:

Right, so we’re going to share this Powerpoint with you when we’re finished because, because as you’ll see, following this kind of agenda slide, we’ve got a lot of material and there’s not enough time to go through all of it. But I wanted to just kind of introduce the topic at the 30,000, or maybe the 10,000 foot level.

As you prepare for performances to be performed live for audiences, there is a tremendous opportunity to capture that performance for a variety of purposes. And so, what I want to do is take you through the strategic overview of why that’s valuable, how to make it happen, how to figure out how to navigate some really complex rules. Union agreement rules about what you can capture, what you can distribute, how do you go about doing that in order to accomplish your objectives?

So, let’s just walk through this I’m gonna kind of highlight what these slides are all about, but not take you through all of them. It’s just too much information, so just kind of go through the next one.

One of the things that’s interesting about this is that the role that digital content has played in orchestras is not a new topic. It’s been around for decades, but historically it played a role, a secondary role, and it’s still a secondary priority in the sense that we’re in the business of presenting live performances. But what’s happened in recent years, even before COVID took place — you started to see orchestras take the position that the digital distribution of audio and audio-visual content is not just nice to have, but a core strategy for helping these organizations reach more people. For composers, it’s a tremendous opportunity to document the work you created and to disseminate it to more people.

What’s really happening in addition to that, and maybe this is one of the big takeaways from this discussion, is that in the old days you would have a radio station or a record company or a television show that would take the initiative to make these things happen, and in the 21st century it is the responsibility of the content creators: the musicians, the conductors, the composers, the management of these institutions. That if they want this to happen, they’ve really got a take responsibility for initiating the projects.

Okay, go to the next slide, which is just to show you that there’s a wide range of benefits to doing this. Some of them are — it used to be, primarily an economic rationale for doing it. Today, the rationale for capturing performances in distributing it either an artistic one, because you want to document something or showcase something you’ve done that’s unique, or because you want to use it as a way of marketing audiences, building, really reaching more people, or using it to market the live performance experience. The economic benefits while they might exist if you have a — if you hit a home run, if you’ll forgive that analogy — generally speaking, these are not activities that are gonna displace or even replicate the economic engine that goes with live performances.

Okay, go to the next slide. The reason for focusing on these benefits is because when we advise orchestras and opera companies about how to undertake digital media projects, we want to really encourage them, and we would encourage all of you as composers, to focus on what your objectives are before deciding, then how to undertake the planning that goes along with it. Whether you should release something just for streaming, whether you should make a physical CD, whether you should try to be on television, whether you should try to focus just on reaching people in the local area where the performance takes place, or reaching people globally.

All of those issues around what the objectives are should be established before you decide what you’re doing, because the electronic media activity is a strategy to achieve some other objective. So, these are just the steps that we encourage people interested in doing this to go through, to think through, planning for these activities in the same way that you would plan for any concert experience.

Okay, jump to the next section because maybe that’s perhaps the most…this is where the rules and regulations need to be followed, and if they’re not followed can get in the way. We advise organizations that are trying to capture content to make sure that you understand that you need permission from everybody. Yes, I can show you an 85 page contract that covers the terms and conditions for using the musicians in a digital project. But you also need permissions from conductor, soloist, chorus. There’s a whole group of people in the upper world. The stagehands have to permission needs to be obtained. The venue in which the performance take place, if it’s not owned by the orchestra, needs to have its permission obtained, and of course, representing composers. Those of you who are composers have rights as well, and an institution that wants to make a project using your material, they need to obtain your rights, either statutory rights through blanket license agreements or voluntary license agreements with your publisher.

As with the conversation we were having about how you go about planning for rehearsals and concerts. The key to the success is making sure that all of these permissions are obtained, that there are shared goals established in advance of the project, even being discussed, and that the process for making decisions is collaborative.

Okay, jump ahead. Let me just focus with the remaining time on — since this is a topic about orchestra union agreements. I put that other stuff first because even as it relates to orchestra union agreements, the way these agreements are structured they require not just payment of fees, but you also need approval of the project from the musicians and or the orchestra committee. And that is more easy to obtain when you have open conversations in advance about what the goals and objectives are. As we said at the very beginning of the session, you have a local AFM, an AFM local or a CBA that governs local radio and television activities. But all of the other electronic media activities that you might want to do in connection with the capturing and distributing of a new work are governed by some national agreement with the American Federation of Musicians, the national union. There are a variety of those different agreements — the one that applies in most cases to the work of symphony, orchestras, and opera companies is the integrated media agreement that is either one that was negotiated by this consortium of 120 symphony and opera orchestras, that actually I represent, that has its own integrated media premium. Or in some cases there are some institutions that aren’t part of this 120 member institution, and they have their own agreements with AFM. And in some cases, if you’re with an opera company they’re subcontracting an orchestra. Bottom line is there’s a roadmap here. If you need help following it I’m happy to you talk to any composers or publishers after the fact and help you follow the rules to make sure you’re working with the right agreement.

Okay, move ahead. I’m not gonna…I don’t think we should cover this today, but what’s included in this material is an overview of terms and conditions. The key ones in the integrated media agreement that applies to most orchestras in this country. This is just a series of describing what kind of content can be released free without payment to musicians under some news and promotional uses.

Jump to the next slide. There’s actually 2 slides of this. I’m not going to read it to you. It’s just too much information, but there’s a menu of options here that enables content to be released for free. And the next slide covers the basic structure if you want an entire work captured and distributed. There is a clause in this agreement that allows the content to be released in all audio or audio-visual formats, other than television, upon the payment of a single upfront fee to each musician, and this describes what the fees are. And the key to this is, as it says, at the very bottom — two key philosophical points. One is that the employer of the musicians, the orchestra, or the opera company, must own and control, must be the copyright owner of the content in order to get these discounted rates, and the orchestra committee musicians has to approve the project.

So, if you are interested in having your work recorded. If it’s just for art…actually go to the next page…last slide here…if you’re interested in an archival tape, you can sign an agreement with the orchestra that gives you access to that tape for your personal use. If you want to have an excerpt of that recording released for promotional purposes, it needs to meet some very very strict rules and regulations.

I didn’t put them on here, but there’s probably 7 or 8 rules and conditions that have to be met, and it requires approval of the orchestra committee. If you want to have an entire work distributed, you have to really identify who’s got responsibility for making it happen, who’s responsible for raising the production cost to make the recording, and you’ve got to resolve and recommend resolving all these things not at the last minute, but, if possible, at the time the commissioning agreement is resolved. Because the sooner you can resolve some of these key philosophical points, the more time you have to plan for it to be executed and implemented properly.

Melissa Ngan:

That was brilliant.

Joe Kluger:

I could go on for another hour.

Melissa Ngan:

And I would sit and listen in rapt silence because, honestly, Joe has been one of the most incredibly knowledgeable and important people in my first year at ACO, just from the perspective of being able to understand what these rights look like. I recognize as the leader of an organization whose primary purpose is discovery and development of composers who will expand the definition of American orchestral repertoire, that this piece of it, the recording and the ability to get that music out there for others who will want to listen to it and program it and commission you in the future is one of the most important things we can do. So being able to navigate these agreements successfully, and, as you said, so clearly understand the purpose, the reason why we are doing this, is one of the most important things towards creating successful agreements. So, Joe, thank you so much for all of the things you are doing to advance this in our field. We are very, very grateful to you.

And so I want to…we’re just at time now. I wanted to take this opportunity to thank both Joe and Elena for sharing their wisdom with us. We couldn’t be more grateful to have you here with us today. And also for helping us to clarify and demystify some of the things that maybe composers might not fully understand until there is a problem. So, I really appreciate the opportunity to be proactive and well-informed, so that we can all be great partners to one another. So, thank you all so much for being here.

Elena Dubinets:

Thank you.

Joe Kluger:

Thank you very much.

Melissa Ngan:

Of course, and I’d like to welcome Aiden back to the screen to close this out and thank you to everyone who’s watching we greatly appreciate each and every one of you for being here and learning with us today. And we’ll make sure that this is available to you as well as all of the resources after today’s session.

Aiden Feltkamp:

Thank you so much to Melissa and to our amazing amazing panelists. Thank you for sharing with us today. Again, a thank you to our donors who made this happen: the Virginia B. Toulmin Foundation, the Steven R. Gerber Trust, NYSCA, and the New York City Department of Cultural Affairs.

If you would like to find out about our future events such as this, please be sure to sign up on our newsletter at americancomposers.org. And this will be followed up with email with resources and with the recording of today’s event so that you can follow up. We’ll also be sharing a survey link, so you can let us know how we did with this and what other topics you’d like us to cover in the future.

And Melissa and I will be on Discord for the next 15 minutes answering your questions. So, if you’d like to join us over there just follow the link, and we will be happy to answer your questions. Thank you so much for joining us today.

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American Composers Orchestra (ACO) is dedicated to the creation, celebration, performance, and promotion of orchestral music by American composers. With commitment to diversity, disruption and discovery, ACO produces concerts, pre-college and college education programs, and emerging composer professional development to foster a community of creators, audience, performers, collaborators, and funders.

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