President’s Report: Victory at Variety Arts!

Local 802 Scores Another Win for Live Music

Volume CIV, No. 5May, 2004

David Lennon

On April 13, Local 802 achieved another precedent-setting agreement against the use of the virtual orchestra machine. This time the battleground was at the Variety Arts Theatre, one of Off Broadway’s largest houses. An eleventh-hour agreement was reached shortly before a planned rally and protest outside the theatre.
Click here for photos and press clippings.

The agreement between the union and the theatre secures a 10-year prohibition on any use of the virtual orchestra machine in future productions without the union’s consent. The pact, which is similar to the one recently reached with the Opera Company of Brooklyn (OCB), marks the first such agreement Off Broadway.

The OCB agreement was challenged by the virtual orchestra machine’s maker — Realtime Music Solutions — through the filing of an unfair labor practice charge against Local 802 and the OCB with the National Labor Relations Board. On April 1, the regional office of the NLRB agreed that the machine does indeed pose a threat to live music, and threw out Realtime’s charge. (Realtime has appealed.)


It is important to clear up any misconceptions of the deal reached at the Variety Arts.

First, Local 802 in no way approved the use of the virtual orchestra machine in the current production of “The Joys of Sex.” That fact is spelled out in the agreement — along with the prohibition against the use of the machine without the union’s consent in any and all future productions appearing at the Variety Arts Theatre:

“Despite the Union’s objection to the use of the Sinfonia, it agrees not to protest its use in the current production of “The Joys of Sex” or any future production thereof presented outside of New York City. In consideration thereof, the owners of the Variety Arts Theatre agree that any and all productions; whether produced by the said owners or, otherwise, appearing at the said Variety Arts Theatre may only use the Sinfonia or any other virtual orchestra machine upon mutual agreement with Local 802.”

Second, 802 only agreed to call off its demonstration in order to secure the long-term ban on the machine.

Lastly, each and every attempt by producers to utilize the virtual orchestra machine has proved to be an attempt to eliminate, replace or displace live musicians. Therefore, the burden to prove otherwise lies with the producers. It remains to be seen if there will ever come a time when we will accept their “proof.” Period.


Our win did not happen by accident.

Although the support and solidarity of the Coalition of Broadway Unions and Guilds (COBUG) remains strong, legal restrictions in the contracts of the other unions engaged at the Variety Arts did not allow them to demonstrate their support in the same manner they did during last year’s Broadway strike. Specifically, no union presently has sympathy strike language Off Broadway.

That does not mean that the coalition did not work together to help 802 achieve its goals. It simply means that each fight has its own unique elements and must be approached accordingly.

We may not have had the same ability in this case as we did on Broadway to stop the show. Nevertheless, we achieved a 10-year deal whereby any producer playing the Variety Arts cannot use the virtual orchestra machine unless we say so. We have not agreed to any acceptable use of the virtual orchestra machine.

The victory at the Variety Arts would not have been possible without the solidarity and support of the labor movement, namely the New York State AFL-CIO, the Central Labor Council, the immeasurable contribution of the dedicated 802 staff and, most importantly, the rallying of our members, many of whom were willing to take off work to show a strong presence outside the theatre.


This victory would not have been possible if we had allowed ourselves to be discouraged by the prevalence of the virtual orchestra machine.

It would also not have been possible if we succumbed to such thinking as “You can’t fight technology,” “Technology always wins,” “We have to pick our battles,” and “What is the ‘end game’ here?”

If we are to thrive and succeed as a union that truly represents the interests of working musicians, it is critical that we decide who we are and for what we stand. This decision must not be based on our perceived chances of winning or losing, but solely on what is right and just, and what is in the best interests of our collective membership.

While strategy is extremely important in any campaign, all too often justifications for positions are given which are based on nothing more than a fear of losing. That is not how this administration will operate.

We are almost always facing uphill battles. That is what the union does, and does best. There is no shame in fighting the good fight and losing. It is shameful to lose by default. Zero tolerance does not mean that we win every time. It does mean that we fight every time. The fear of losing cannot and should not deter us from our goals. Had we allowed it to this time, “The Joys of Sex” would be going forward without the 10-year virtual orchestra ban in place.

Why is this fight such a high priority for Local 802? If the virtual orchestra machine wins it will affect all of us.

The machine represents a frontal attack on live music. It attacks the very essence of live musical performance. It threatens the livelihood of all our members, and the union itself. It attacks the audiences who pay hard-earned money to experience the magic and wonder of live performance.


The facts leave no doubt as to the true objective of the virtual orchestra machine makers and the producers and presenters who would utilize it: the elimination of live music in order to reap profits.

Fact: Realtime’s virtual orchestra machine is the same machine that was at the heart of last year’s Broadway strike when producers attempted to replace live orchestras.

Fact: Realtime’s virtual orchestra machine is the same machine that has replaced half of the “Les Miserables” orchestra in London.

Fact: Realtime’s virtual orchestra machine is the same machine that the show’s producer, Broadway’s Cameron Mackintosh, claimed he was using solely because the show was moving to a smaller venue, only later to brag to Playbill that he is “using it as a showpiece to display [the machine] to producers in America.”

Fact: Realtime’s virtual orchestra machine is the same machine whose maker filed an unfair labor practice charge against Local 802 with the NRLB claiming live musicians were trying to put it out of business!

Fact: Realtime’s virtual orchestra machine is the same machine whose maker is represented by the law firm responsible for the elimination of live music in Las Vegas!

Their actions speak volumes about their intentions. Likewise, the actions of Local 802 will speak for ours.


While our opponents are formidable, our allies are stronger. Justice is a far stronger motivator than greed. We must and will continue to send a loud and clear message that canned music will not be tolerated in New York City, the live music capital of the world. Their determination to destroy it only strengthens our resolve to defend it. We remain ready and poised for the next battle.

Although I will move on to other issues of importance in my future columns, we will keep you closely informed of our ongoing efforts to keep music live. In a few short months, together we have begun to achieve that which many thought impossible: banning the virtual orchestra machine. I hope these reports have in some way helped provide a sense of hope that we can win these fights — and the strength and courage necessary to take a stand going forward.