Wednesday, November 3, 2010

Arts and the Law

A very interesting blog post today by Anne Midgette about a lawsuit recently filed against Young Concert Artists alleging age discrimination in their competition guidelines. See below for the link and text.

Without getting into the merits (or lack thereof) of this particular situation, it does shine a light into the crevices of a larger issue: the bipolar relationship between law and art. Everyone wants to avoid contracts, statutes, and legal issues in favor of simplicity, trust, relationships and "artistic considerations", until someone's engagement gets canceled or they don't get whatever it is they believe they deserved or believe they bargained for or are entitled to, and then all bets are off and they run to the courts for redress. The legal system is a black hole from which no one emerges unscathed, regardless of the merits of their claim. It is a trap for the unwary and a feeding ground for attorneys with clients who are hurt, emotional, and seeking "justice"--even if it comes at their client's own detriment. Without suggesting that everyone adopt an attitude of distrust and cynicism, the arts industry, and not-for-profits in particular, might be better served by engaging in a bit more strategic thinking when it comes to assuming that the rules (whether they apply to taxes, visas, contracts, copyrights, discrimination, or a myriad of other issues) simply don't apply to them. If nothing else, understanding the rules can protect artists from one another--especially when they turn on you!

Music and the law this week brought my attention to a lawsuit by a 60-year-old violinist against Young Concert Artists. YCA, now in its 50th season, holds a competition for young musicians; it then presents the winners on its concert series in New York, Washington, and Boston, and provides them with management as they get their start in the concert world. This violinist, Martin Stoner, recently lost his job with the New York City Ballet Orchestra, so he is looking for new avenues of work. He wants to audition for YCA; and now he’s bringing a suit against them for age discrimination because the cutoff age for their auditions is 26.

Others have already weighed in on the basic foolishness of this claim, which seems an obvious ploy on Stoner’s part to get media attention (and it’s working, because I’m writing about him). The man has been playing the violin professionally for years; he knows how the business works; and he’s had plenty of time to show the world whether or not he has the talent and chops to become the kind of world-class soloist YCA is looking for. Furthermore, YCA is clear about its age requirements (and most competitions have some sort of age cut-off or restriction, frustrating as this is to the 30-something who has yet to be recognized).

The larger issue, though, is the difficulty of applying civil law to musical organizations. There are
always complications when questions of artistic merit are brought into conflict with issues of civil
rights. Traditionally, orchestra musicians in particular have had to put up with less than desirable treatment at the hands of their conductors; and while no one today would tolerate outbursts a la Toscanini, courts do tend to recognize that artistic considerations take precedence over civil ones. In October, an oboist for the Welsh National Opera went to court after being dismissed, claiming he had been bullied by the conductor, Carlo Rizzi; the court upheld the right of the orchestra to dismiss a soloist for what it sees as poor performance.

And whether the performance is poor or not is usually not for a court to decide -- though back in the 1980s and 1990s, after the trombonistAbbie Conant was demoted from first to second chair in the Munich Philharmonic because the conductor Sergiu Celibidache told her “We need a man for first trombone,” she actually did, in the course of her subsequent lawsuit, have to play for an independent evaluator and collect dozens of testimonials to demonstrate her artistic merit. And in that case the court did, repeatedly, rule against the orchestra.

Yet orchestra are seeking to become more socially-minded, civic organizations. An illustration of the conflict between the elite role of the musician and the community goals of an orchestra, which I've already posted about, is the Detroit Symphony Orchestra management's desire for a contract that requires its musicians to take on non-performing duties like teaching and outreach activities. Does this imply a more social definition of an orchestra musician? Would this lead to a scenario down the road where an orchestra job would go not to the very best musician, but the most well-rounded one -- as Ivy League schools select no longer purely on the basis of academic merit? And would such a step imply the gradual eroding of a certain kind of artistic elitism -- or open up opportunities to more, and different kinds of, performers?

I trust, though, that most musicians will continue to understand that their "right" to perform is not something that a court can uphold, or force upon an unwilling presenter.

*Edited to add: I was just told of an example closer to home I hadn't known about: a violinist with the Kennedy Center Opera House Orchestra who sued the Kennedy Center alleging that he was let go after his probationary period not for poor performance, but because he was Jewish and Heinz Fricke, the then-music director, and the orchestra manager, Shana Alewine, were German and therefore anti-Semitic. The case was decided in 2000; the violinist, Boris Reznikov, won $150,000.

By Anne Midgette | November 3, 2010; 10:00 AM ET

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