The Commoditization of Symphony Orchestra Musicians

The Commoditization of Symphony Orchestra Musicians

Posted @ 9/17/2012 9:16 PM By Brian Smith

Chicago based lawyer Kevin Case has written a very interesting and insightful article focused on the prevailing attitude of a large number of orchestra managers in the country today.  Mr. Case’s practice, according to his law firm’s website, focuses on the world of the fine arts.  The firm, Moen & Case LLP, describe themselves and their work as follows:

“Moen & Case LLP provides sophisticated legal representation to classical music, art, film, theatre, dance, publishing, and fine musical instrument clients in a wide range of legal matters, including contract, copyright, trademark, labor and employment, and litigation matters.

The firm’s partners, Zachary V. Moen and Kevin Case, each have a unique combination of legal experience, superior legal credentials, and backgrounds in the fine arts that make them particularly qualified to understand the needs of classical musicians and fine arts clients.

Unlike many entertainment law firms that are focused on finding the next pop star, Moen & Case is dedicated to representing working musicians and fine arts clients, with a focus on the ever-changing labor, business, and intellectual property issues and disputes that such clients encounter.”

We would be very interested to hear your impressions of Mr. Case’s argument, which can be read in it’s entirety below.


By: Kevin Case, Partner, Moen & Case LLP

The recent headlines are horrifying.   Musicians in top orchestras have been asked to take massive cuts in pay and benefits.  Managers are slashing weeks and demanding reductions in the number of musicians – in some cases, by putting tenured players out on the street.  Longstanding work rules are being gutted for reasons that have nothing to do with finances.  It is a full-fledged assault on protections for musicians that took decades to achieve.

Perhaps most disturbing, however, is the response from some orchestra managers and board chairs to the argument that players, faced with these draconian measures, will pack up and leave.  The message is simple and blunt:  we don’t care.  Go ahead and leave.  After all, you’re totally replaceable; we’ll just hire one of those fantastic kids coming out the conservatories.

This message is being delivered with stunning candor.  The chairman of one major orchestra demanding huge cuts noted the “quite remarkable” number of music-school graduates, characterizing it as “a large supply.”  Another manager acknowledged a “risk” that his players would “find their way to another place” if forced to accept management’s demands, but shrugged it off:  “those who can leave will.”  Yet another board chairman told one departing principal that he wouldn’t care unless nine or ten players left – and then, only because it might be “bad PR.”  (And of course, who can forget the manager who thought he could hire a brand-new Louisville Orchestra on Craigslist.)

What we are seeing is the public manifestation of a belief that has long simmered in the background among some managers:  that players are really just interchangeable parts, and if one leaves, the orchestra can easily find someone just as good.  As a player, I knew managers who held this belief privately; as an attorney, I’ve encountered it in negotiations.  It represents nothing less than the commoditization of symphonic musicians.  It is perhaps the most dangerous trend at work today, and left unchecked, it will ultimately destroy musicians’ livelihoods.

What do I mean by “commoditization”?  It is the process by which goods or services once viewed as unique, distinguishable, or superior become indistinguishable and interchangeable in the eyes of consumers.  The result is a rock-bottom price for what is now a simple “commodity” (and low profits for the producer or provider).  Many economists (especially those who extoll the virtues of the “free market”) argue that labor should be viewed as a commodity as well.  The typical illustration of this principle involves unskilled workers; for if a job requires only the barest skill, then there will always be a ready “supply” of qualified, interchangeable workers and thus no incentive for an employer to pay anything but the bare minimum.

It is shocking that any symphonic manager or board member can hold this belief with respect to the musicians in their orchestras.  Those artists are the furthest thing from unskilled laborers; to the contrary, they have dedicated their lives to honing the most unique and specialized skills imaginable.  Nonetheless, as the above comments from managers and board chairs demonstrate, commoditization has now reared its ugly head – and the result, if this belief gains wide acceptance, will be a race to the bottom in terms of wages and benefits for orchestral players.

What can be done to counter this?  First and foremost, it must be emphatically pointed out, again and again, to anyone who will listen, that this belief is simply wrong.  Yes, conservatories churn out thousands of highly-skilled musicians per year – far in excess of the number of available jobs.  And yes, vacancies in symphony orchestras often attract hundreds of applicants.  But no matter how many candidates show up for an audition, only a handful make it to the final round.  And how many times have auditions concluded with no one being offered the position – because even the ultra-talented and proficient candidates that made it through the rigorous process were not the right “fit”?

Sports provide a close analogy.  For example, there are dozens, maybe hundreds of talented young baseball players who can play the position of shortstop at a major league level.  They all can hit, catch, and throw with great skill.  But the New York Yankees would never view them as a “supply” of equally qualified options.  The Yankees want the next Derek Jeter, with his unique blend of grace under pressure, clutch performance, and personal qualities that make him a great teammate.  They will seek out that player – and when they find him, they will do their damnedest to keep him.

So it should be with orchestra musicians.  Such players have unique skills and characteristics that go far beyond technical proficiency:  perhaps a particular sound that meshes well with a their colleagues, an unusual depth of musical sensitivity, or a personality that makes everyone’s lives a little easier.  In addition, audiences keep close track of who is one on the stage:  often a musician will have “fans” who look forward to hearing their favorite play an exposed solo (or they will note the new dress the third-chair violist is wearing – hey, at least they’re watching).  To believe that such players are faceless, interchangeable parts is a slap in the face not just to the musicians, but to the audience.