Judge Allows Composer to Sue Brooklyn Philharmonic for Breach of Contract

Monday, May 20, 2013 - 12:00 PM

A Brooklyn Supreme Court judge has denied an attempt by the Brooklyn Philharmonic to dismiss a lawsuit brought by the composer Nathan Currier, who alleges that the orchestra broke a contract by abruptly terminating the premiere of his oratorio mid-performance at Avery Fisher Hall.

“It was disappointing and it will be appealed,” said Harvey Mars, the Philharmonic's attorney in a phone interview. A conference between the two parties is scheduled for May 28.

The lawsuit, filed in Brooklyn Supreme Court, alleges that the Brooklyn Philharmonic stopped the April 21, 2004 performance of Currier’s two-hour Gaian Variations mid-stream so that the musicians wouldn’t go into overtime.

Currier, a Juilliard-trained composer who has won a number of industry prizes, is seeking compensatory damages of $72,000, the amount he paid the orchestra to premiere his magnum opus, which is scored for a full orchestra, chorus, string quartet, vocal soloists and assorted soloists. The performance became undone when, during the second intermission of the evening-length performance, Philharmonic CEO Catherine Cahill summoned Currier backstage to an emergency meeting.

Cahill told Currier that the performance was running long, and he faced significant overtime costs unless he made cuts to his piece. Flabbergasted, but lacking the funds to pay overtime, the composer attempted to salvage the situation by cutting three movements from the middle of Act Three, thereby ensuring the finale would still be played.

But instead of adhering to the cuts, at 10:45 pm, the orchestra apparently decided on another solution and abruptly ended the piece (overtime would begin at 11 pm). The New York Times savaged the oratorio in a review, saying the composer “seemed unable to end the work,” and that the concert stopped “as the piece neared the three hour mark.”

Justice David Schmidt allowed for the lawsuit to go ahead on May 5. Currier declined to discuss the case, but wrote in an e-mail: “I am happy that Judge Schmidt has been giving his attention to the case, and hope that it gets resolved soon, as I believe that Gaian Variations, which concerns how our planet self-regulates, is not only still relevant, but in fact is becoming more pertinent to our society by the day.”

The Gaian Variations is said to be based on the Gaia theory, which views the Earth as a single self-regulating entity.

Currier's lawsuit hinges on the interpretation of union rules for intermissions. Some officials at the Philharmonic believed that the musicians were entitled to two 20-minute breaks during the performance while other officials understood the breaks should last no more than 12 minutes. What followed, according to Currier, was a concert with two breaks totaling 29 minutes, timings that he had not anticipated.

“The record demonstrates a sharp disagreement, even among the employees and officials of BPO engaged in producing Gaian Variations over the proper interpretation” of the intermissions, Justice Schmidt wrote in court documents. He added that while Currier did not articulate at his deposition the damages he's suffered, “that does not defeat his claim.”

Mars, the orchestra’s attorney, said the suit could severely damage the orchestra, which has a recent history of financial troubles. He added that it could be as long as a year before the suit goes to trial, should his appeal be denied.

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Comments [14]

ardath_bey

What kind of sh*tty orchestra goes in front of an audience without rehearsal or without knowing how long that night's performance will be? Currier paid $72,000 to have his music played in its entirety and it wasn't, he should get his money back, plain and simple.

Plus damages, since his art and reputation have been publicly damaged.

Sad however that a composer has to pay to hear his music played, it should be the other way around. I bet John Williams never had this problem. And by that remark I'm not diminishing either Mr. Williams or Mr. Currier.

May. 24 2013 12:34 PM
musician307

I could understand a group of unrehearsed freelancers showing up with a conductor who has never seen the piece to do a reading and this being the outcome. However, regardless of any disorganization or misrepresentation on the part of the composer, you'd think if the Brooklyn Phil was going to have their name attached, they would want to have some basic handle on the running times, if only to present themselves in a "professional" light. Even the decisions about the intermissions would have needed to be made prior to the performance for a proper running of the house. I think it's strange that Harvey Mars, famous for being a Local 802 (musicians union) lawyer is in this case acting as the counsel for "management". It certainly sounds like there is much, much more going on in this than is being told here. It would be interesting to get the whole story.

May. 23 2013 03:23 PM

So what's new? the rich ride roughshod over the little guy. I hope he gets plenty in punitive damages due to the reviews that disparage his talent and hard work...

May. 22 2013 11:16 PM
AT Hobbit from Harlem

I was in this concert. The entire chorus and orchestra knew the piece would run long-- in fact, it ran so long that at none of the scheduled rehearsals was there sufficient time to once run it start to finish.

May. 22 2013 03:03 PM
Benjamin Niemczyk from Brooklyn, NY

I sang in this performance in 2004. There were several dozen people in the audience, one of whom was my mother. She was asked by ushers to move from her paid seat to one closer to the stage, as the staff was moving everybody out of sections that were being closed due to lack of ticket sales. So, in some ways, this performance was doomed before it got started.

I'm fairly open-minded when it comes to music, having studied many hundreds of modern and contemporary works, and I believe that Currier's Gaia Variations is inferior from almost any angle. Its use of electronic instruments is outdated, and the choral parts are horrendous in every way. The piano writing in the piece, however, is excellent, as is the string quartet writing. The orchestra scoring is murky and sloppy.

That doesn't give the performing ensemble the right to stop the piece early, but by the time we had reached 10.45PM, our sanity was at stake. I wish we had been allowed to perform the finale, but the piece had been given a chance to develop over the evening. It failed, and the work is now more infamous than famous in my memory.

Harold Rosenbaum did all that he could to compact the work into the allotted time, but there was just too much going on. Rosenbaum is a master of contemporary music and conducted the tempos that Currier wrote, down to the last tick, so shame on the composer for miscalculating the timings. What's that about Juilliard-trained? Uhm, I think his rudimentary addition skills need some work.

I kept my vocal score, and it has functioned well as Christmas wrapping paper these last nine years.

Ben

May. 22 2013 02:57 PM
Justsomeguy

From the judge's decision, two things seem clear:

1) Mr. Currier underestimated his performance time by a long shot. He estimated 125 minutes to play the complete work, and it actually took 130 minutes to perform just the first 2 acts, minus the 35-minute 3rd act. A difference in tempi shouldn't account for that huge of a discrepancy (40 minutes?!) It is unlikely that the tempi fluctuated so widely from the rehearsal tempi, which the composer surely oversaw. The concert started at 8:05, and by 10:12 only the first two acts had been performed, with a 15 minute intermission. However:

2) The composer clearly made compromises to get the piece completed under the wire, and was denied the option to have his final 14 minutes performed before the actual cutoff time of 11pm. That seems inexcusable - if the composer made the call, then he could be responsible for any overtime that would result, and then the BPO could sue him rather than the other way around. If the BPO was going to interrupt his work, why do it before the contractually agreed upon 3 hours are up?

May. 22 2013 01:47 PM
Faust from Manhattah, NY

Nathan comes from a background of musicians and is himself in possession of a Doctorate from Julliard. Knowing how this business works - and do not kid yourself, it is a business - and knowing nothing of the Brooklyn Phil, it sounds to me as if someone had an ax to grind with him. The industry has no short fall of career assassinations. It's the nature of the beast. I think the musicians are being used as a scape goat.

For those of you unfamiliar with New York City professional musicians:
Hell, the same thing happens on such rubbish as “Saturday Night Live”. Where the veterans will try to make other skits run longer, in order to bump a fellow cast member they do not like. It's like a bad high school with bigger stakes.

He struck three pieces, which shows he was more than willing to compromise. He probably knew of the overtime fees, which after curfew are excessive! Hence, why even the Rolling Stones will make sure they are off stage by a specified time.

How overtime works:
Let's say you have curfew (meaning the last note is played and everyone leaves the stage by 11:00PM) if the show runs one minute over 11:01 PM everyone - and I do mean EVERYONE - is entitled to overtime pay for hours of work even if the show ends at 11:01 PM. Weather they themselves see any of that overtime is another matter entirely.

It's a shame. I feel for the man. I hope he wins.

May. 22 2013 11:30 AM
AllaB1

So, if I am understanding this correctly, the composer was paying for everything and thus HE would have had to foot the bill for the overtime.

When it's a self produced concert and they are looking at overtime, they normally would bite the bullet and deal with the overtime. No incentive to do that here, and no incentive to "compromise" (which is a poor choice of words to refer to "break their contractual terms.")

As for the timing, I can't fathom how they didn't realize this would happen. They surely ran the entire piece at least once all the way through. Even if they took the minimum mandated union breaks, that would still be about 20 minutes, so the addition of 9 minutes to the intermission shouldn't have been such a shock unless the entire thing literally clocked in at 2 hours and 59 minutes in rehearsal.

May. 21 2013 03:24 PM
Jamie

I'm a professional musician and premiered many contemporary pieces. It's a mystery why the composer mistimed his magnum opus. In the article it states:
Currier's lawsuit hinges on the interpretation of union rules for intermissions. Some officials at the Philharmonic believed that the musicians were entitled to two 20-minute breaks during the performance while other officials understood the breaks should last no more than 12 minutes. What followed, according to Currier, was a concert with two breaks totaling 29 minutes, timings that he had not anticipated.
OK, so was he counting on the orchestra players not take any breaks? Sounds like the breaks were very reasonable. 29/2 = 15 minutes each. Go figure.
Didn't he had to cut 3 movements of the piece and still couldn't get it done before the orchestra goes into overtime????????
It's great that he writes a gigantic piece but to expect an orchestra to perform it w/o adequate compensation is wrong. Next time hire non-union players.

May. 21 2013 01:53 PM
John Porter from NYC

The history of the mid to late 20th century is riddled with orchestras screwing over composers. How many premieres took place without adequate rehearsal, because the music comes second.

I am not at all surprised about this. It sounds to me like bad management. Didn't anyone clock the piece and build in enough time. The poor guy pays all this money and ends up with something he most likely can't use for much.

May. 21 2013 10:05 AM
Rob Frank from Dallas

Good NY Studio musicians CAN sightread a piece better than many professional orchestras can perform after many rehearsals, so a performance w/o a rehearsal is not unheard of. No doubt this was a composer-paid vanity performance, but if the contract was for the performance of the work, and the duration was reasonably represented (that is where I have a suspicion... did the composer not provide an accurate duration, or did the conductor/music director not accurately review the score in absence of a stated duration?) then this is a great example of the damage a union clockwatcher can do. Musicians do also need fair, reasonable compensation, and if an accurate duration wasn't provided beforehand, then shame on the music director/contractor, not the composer! (PS - this sounds strangely like the disastrous world-premiere of Brahms' German Requiem... look it up sometime!)

May. 21 2013 09:58 AM
Professional Musician Weighs In from Brooklyn

To HYH,

Your comment is quite apt. If they had been rehearsing the piece, they ought to have known how long it would last, and they ought to have planned the details of the concert (such as length of piece, breaks, etc) almost to the minute. The composer was right to be flabbergasted at the mid-concert request to cut pieces. It is incomprehensible to me that the length of the program could have come as such a surprise to the players and leaders that a mid-concert change would need to be made.

I have performed hundreds of concerts for over a decade, and I have never heard of such a thing happening.

While I would hate to see the Brooklyn Phil go under because of something like this, they should clearly be held accountable for this travesty.

Befuddled,
N

May. 20 2013 10:43 PM
Eugene Pagano from Oyster Bay, NY

The judge's decision is posted online:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_50704.htm

May. 20 2013 08:16 PM
HYH from Working in Purchase

This is a very odd story. I'm assuming I do not understand enough about how these situations work, and maybe there is not enough information in the article. But, how is it that the orchestra and management did not know how long the piece would last? They must've rehearsed it prior to performing. I am fully in support of ensuring orchestra players are fairly compensated and not taken advantage of in terms of time, etc. but, surely some type of compromise could've been reached that evening? Are there no contingency plans for such issues? It seems incomprehensible to me that a performance could be stopped mid-way like that. What about the ticket holders? They paid for a full performance? Will they receive compensation? There has to be more to this story. If not, then somebody is not telling the truth.

May. 20 2013 04:03 PM

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