# Is using MTPIT Legal?



## ninjacowonskis (Aug 8, 2012)

Well the title says it all really, but if you want details...

My stage doesn't have an orchestra pit and so each time we do a musical we have to find some place to put the orchestra. We usually end up taking out a few seats just in front of the stage and cramming in a 5 piece band. This causes many acoustical problems between them being to loud for the audiance and to quiet for the performers. Last year we decided to try out MTPit which if you aren't familiar with uses a digitally recorded full orchestra and we rent the digital recorder from them and hook it into our system. We had so many compliments last year for the first time ever we decided to do it again this year.

Well it turns out when I mention this to the publishers they get out bent out of shape and start quoting their contracts about how they state that we must use an orchestra. Well MTpit says that we aren't using a synthesized piece of music but in fact are renting the orchestra from them it just happens to be recorded.

My question is who the heck is right? I mean I understand the publishers wishes for us to use live music but for some that just isn't possible. I'd really hate to have to go back to having to hear about how no one can hear the actors even when they are microphoned. But of course I really do not want to be caught up in a legal battle. We can't be the only ones with this problem. 

Any legal minded people out there with some kind of idea on this? Or is it just the publishers trying to frighten us?

thanks


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## sk8rsdad (Aug 8, 2012)

I don't think there is a clear definition of what is _legal_ available to us. This is contract law, and without access to the contract it is difficult to discuss legality, other than to state that you are obliged to uphold the terms agreed to in the contract. There are exceptions to the rule, like if the contract requires you to do something that would break another law, but I doubt that is what you mean by _legal_.

As copyright holder, or agent for the copyright holder, the publishing house gets to set the terms. If you agree to the contract then you agree to their terms. This particular issue is further complicated by the terms by which the publisher is constrained. In the case of musicals, and especially Broadway musicals, there are a lot of stakeholders all scrambling for a piece of the pie. That might mean the publisher is obliged to insist upon live musicians. To get around this, MTI offers several versions of the same musical, some of which come with pre-recorded music, age restrictions for actors, etc. in order to meet the demands of their market, and satisfy the requirements imposed upon them by the Musicians Union.

In any event, it should be defined in the contract, or in a document cited in the contract.


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## museav (Aug 8, 2012)

ninjacowonskis said:


> Well it turns out when I mention this to the publishers they get out bent out of shape and start quoting their contracts about how they state that we must use an orchestra. Well MTpit says that we aren't using a synthesized piece of music but in fact are renting the orchestra from them it just happens to be recorded.


I wonder if MT Pit would accept a copy of a real check as payment? 

I did note that MT Pit is very clear that you have to first obtain all licensing and rights essentially as though you were using a live orchestra. If the rightsholder or their agent chooses to apply a stipulation to granting those rights that the orchestra actually be live, then I believe that is their perogative. However, this is the type of issue that really should be addressed by a qualified legal expert.


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## JChenault (Aug 8, 2012)

Note that there are some publishers who have figured out how to make money from these kinds of systems. For example, MTI supports OrchExtra which is a system to supplement ( and by supplement they mean from a couple of fixtures to the entire pit ) for a number of their shows.

I believe there is another similar system used other publishers but I don't remember the name at present.

To the OP - just to be clear - you are planning to rent the orchestration as if you were having a live orchestra aren't you? What show and who is the publisher?

Have you looked at the contract and does it mention a minimum number of live musicians?


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## ScottT (Aug 8, 2012)

JChenault said:


> I believe there is another similar system used other publishers but I don't remember the name at present.



Sinfonia?


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## Scarrgo (Aug 8, 2012)

We did a show with MTPit, It was Wizard of Oz. 
As per our contract(yours may differ)we had to rent all the books for the orchestra as if we were having a live pit. Everybody gets their money and everybody is happy.
I dont think we will do it again, it is kind of rough if there is a problem onstage, vamping was a small issue. 

But, it did sound good.

Good luck
Sean...


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## FACTplayers (Aug 9, 2012)

We have used OrchExtra. It was alright. Kind of a buggy system and caused a lot of interference. Overall it's a really cool program and idea, did I mention expensive? We still purchased the rights as if we were using an orchestra. We had a couple live players playing along with orchextra. It turned out really well. Unless your contract is different, I don't see why the publishers have a problem with MTPit.


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## museav (Aug 10, 2012)

FACTplayers said:


> We have used OrchExtra. It was alright. Kind of a buggy system and caused a lot of interference. Overall it's a really cool program and idea, did I mention expensive? We still purchased the rights as if we were using an orchestra. We had a couple live players playing along with orchextra. It turned out really well. Unless your contract is different, I don't see why the publishers have a problem with MTPit.


It will often be about money but it may also be just like some playwrights won't let certain scenes or lines be cut or anything else they feel is critical to maintaining the integrity and intent of the piece. If the creator and/or rightsholder feel that a live orchestra is critical to maintaining the intent of the music or the performance then they conceivably may attach that condition.


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## FACTplayers (Aug 10, 2012)

museav said:


> It will often be about money but it may also be just like some playwrights won't let certain scenes or lines be cut or anything else they feel is critical to maintaining the integrity and intent of the piece. If the creator and/or rightsholder feel that a live orchestra is critical to maintaining the intent of the music or the performance then they conceivably may attach that condition.



I understand they want their hard work to look as good as possible; anyone would want that. But nothing is stopping a production from using terrible actors and ruining the production anyways. Or something worse, like trying to fly Peter Pan and taking the set down instead. IMO sometimes companies get too uptight and don't want to embrace innovations, such as MTPit, when it realistically won't break the show.


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## museav (Aug 11, 2012)

FACTplayers said:


> I understand they want their hard work to look as good as possible; anyone would want that. But nothing is stopping a production from using terrible actors and ruining the production anyways. Or something worse, like trying to fly Peter Pan and taking the set down instead. IMO sometimes companies get too uptight and don't want to embrace innovations, such as MTPit, when it realistically won't break the show.


The quality of a performance is subjective and even if one wanted to do so, trying to define, much less assess and enforce, subjective criteria would be difficult. In comparison, whether you have a live orchestra or not is fairly objective and easy to define and determine.

I also view the situation as actually somewhat analogous to what I deal with in building design and construction where the designer can define the work to be performed, the design intent, but the builder is responsible for how it is performed, the means and methods. Where a designer specifies qualitative criteria there needs to be some accepted objective manner to verify compliance or it can easily become a mess.

We don't know if that may be a factor here or not, I was only trying to point out that it could be relevant. And from that, that it might be worth trying to find out more about the specific issue involved so that you might explore some alternative or compromise solutions.


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## Starlet24 (Dec 23, 2014)

My question is - how do they get the full orchestra books? I've been in contact with them as a vocal director to cut the tracks and so forth and have asked this numerous times. They don't have the rights to the shows like we do, and they said they don't get the books FROM MTI or R&H or Tams - so where do they get them from? They are the exact books you GET from MTI because when you tell them to cut measures 143 to 152 they just do that. 

We do everything we can to budget for an orchestra and oftentimes members will play for a lot less if you just ask because they want the experience of a new show or they are students, etc... But we have had to use MT-PIT and AZTEC (the former being better quality than the latter). Every time I get on the phone with a new person I casually ask where they get their orchestra books from.... they get very quiet. It's irritating. Anyone know?


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## FMEng (Dec 23, 2014)

Don't ask, don't tell.


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## Starlet24 (Dec 24, 2014)

FMEng said:


> Don't ask, don't tell.


I don't see what the big deal is about asking and telling. It's a legitimate question. how do you get the same books from MTI without the rights? 
We've had TamsWidmark find out that we used tracks for You're a Good Man, Charlie Brown and slap us on the wrist for using tracks. However - THEY EXIST. So, how and why do they exist if the contract says - you must use live music?? I think that if we are renting the music from a company registered with the BBB, licensed etc... claiming they have integrity, then it should be clearly marked on their website how they acquire what we have to pay for. As someone stated above, you have to rent the books as tho you were hiring an orchestra. Instead, you 'rent from them' musicians/pre-recorded tracks that they can edit for you with the same books you have. How did they get the books without the rights. It drives me crazy.


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## FMEng (Dec 24, 2014)

This is just my speculation: You wouldn't be asking unless you knew that they have to get the scores by less than legitimate mean, in some cases. Of course they won't tell you. Some publishers will cooperate with them, some will not. The rep on the phone probably doesn't know which scores are legit and which aren't. What is your intent by asking? Is it to kill their business? If you are concerned about the liability for your organization, then I suggest that you either not hire them, or have your copyright attorney review the situation. Nobody is forcing you to hire them. If you pay the publisher for the scores and perform the show, who exactly is getting harmed here?


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## MNicolai (Dec 24, 2014)

The person answering the phone may have no connection with how the scores are acquired and recorded. At the office I work in, one phone number rings every phone in the office. Anybody can pick it up, and anybody can end up fielding all kinds of questions they don't know the answer to. This can lead to many awkward pauses while trying to figure out how to best 1) refer the call to someone else, 2) find them their answer, 3) disregard the question and move on as the answer may have no influence on the problem they're trying to have solved. Not saying they are legitimate, but awkward pauses from someone on the phone are not indicative that they aren't.

Likewise, not every person on staff at every publisher is going to be fully aware of MT Pit. They may have a cursory awareness that this service exists, but unless they've adopted a blanket policy against using these services which is reflected in the contract you sign, they may or may not know off of the top of their head which works allow the use of these services and which works are licensed so as to prohibit them. It's very possible that the person who says "Well, you have to use a live orchestra" is mistaken, and that if further pressed, may dig into the contract and discover that the language of the contract doesn't exclude use of such services.

For whatever it's worth, I'd be hard pressed to believe they are operating illegitimately. Any publisher is going to be able to find that they offer this as a service for particular works, and they don't want to have lawyers sent after them. I wouldn't be surprised though to learn that they're operating in a contractual gray area. If the contract reads, "The music must be performed by musicians present at the theater in real-time", it's pretty clear a pre-recorded service would be prohibited. If the contract reads, "The music must be performed by live musicians", that could be interpreted to mean that anything not digitally synthesized is fair game. After all, live musicians were used to generate the recording.

Another facet of this conversation is that more and more orchestras are being put in rooms away from the main theater. The audio is piped from another room where the orchestra is into the theater's PA. In this regard, a pre-recorded service ultimately offers nothing to the theatergoer's experience than a live orchestra in another room would aside from lower ticket prices if you don't have to pay for the musicians.

Food for thought:
Pre-recorded musical scores are to live symphony accompaniments what the internet has been to print media.


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## Starlet24 (Dec 30, 2014)

MNicolai said:


> The person answering the phone may have no connection with how the scores are acquired and recorded. At the office I work in, one phone number rings every phone in the office. Anybody can pick it up, and anybody can end up fielding all kinds of questions they don't know the answer to. This can lead to many awkward pauses while trying to figure out how to best 1) refer the call to someone else, 2) find them their answer, 3) disregard the question and move on as the answer may have no influence on the problem they're trying to have solved. Not saying they are legitimate, but awkward pauses from someone on the phone are not indicative that they aren't.
> ......
> Pre-recorded musical scores are to live symphony accompaniments what the internet has been to print media.



This is not my concern - none of it. They don't answer the question because they've been told not to answer it. I just asked it again the other day when getting our WOZ tracks. I said - you're not supposed to tell me where you get the books are you? And she said - no. So there you have it. I am sure it's legal. We have no problem using them. But I still want to know where they get LICENSED BOOKS. Do they borrow them from the local theater company when they do a show - an affiliation? If so, then ok. 

Or, perhaps they don't want to tell because they don't want to make it easy for competition.


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## Starlet24 (Dec 30, 2014)

FMEng said:


> This is just my speculation: You wouldn't be asking unless you knew that they have to get the scores by less than legitimate mean, in some cases. Of course they won't tell you. Some publishers will cooperate with them, some will not. The rep on the phone probably doesn't know which scores are legit and which aren't. What is your intent by asking? Is it to kill their business? If you are concerned about the liability for your organization, then I suggest that you either not hire them, or have your copyright attorney review the situation. Nobody is forcing you to hire them. If you pay the publisher for the scores and perform the show, who exactly is getting harmed here?


As I stated to MNicolai, I just am curious. I'm not at all concerned about the liability. It's stated very clearly on their website that it is like you are hiring their "orchestra" so in that case you ARE using live music (there's some synth in there, pretty sure). Both you and MNicolai are reading into my curiosity. It's a question they refuse to answer - so either they are told not to answer OR they don't want anyone to know 'trade secrets' for competition purposes. I was simply asking if anyone knew.


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## BigBangKaraoke (May 27, 2015)

Probably not according to their own website you must obtain licensing rights to the show before they well sell you their tracks:


> Do I have to do anything about copyrights if I use The MT Pit music?




Yes! Before we will rent our recorded tracks to you, you must first license the show through a professional licensing company and rent all materials as though you had hired a full orchestra. It is as if you are hiring The MT Pit Orchestra for the duration of your show.


as well as claiming no affiliation with any music licensing agency:


> The MT Pit is not affiliated with, nor endorsed, by any of the following licensing entities or their authors: Music Theatre International, Rodgers and Hammerstein, Tams-Witmark, Theatrical Rights World Wide, or Samuel French.




And I see no trace of any affiliations with artist rights agencies such as BMI, ASCAP, SOCAN, etc. stating that they are paying artist royalties so 99% chance that they are reproducing tracks without licensing them, themselves!

I know that They do not have publishing rights for Really Useful Group shows!!!

WHICH OF COURSE MAKES THEM NOT ONLY HYPOCRITES BUT PIRATES!!! As Fair Use Absolutely does not cover the renting or lending of copyright materials!!

I would be better to use Orchextra/Sinphona which seems to be owned by Music Theater International one of the major Licensing groups for Musical Theater


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## ItStartsWithAStory (Nov 12, 2015)

BigBangKaraoke said:


> Probably not according to their own website you must obtain licensing rights to the show before they well sell you their tracks:
> 
> 
> 
> ...



First of all, I am not a lawyer (so check with a lawyer to back up anything said on this thread), but I have dealt with music royalties and music licensing throughout my professional career. The comment by BigBangKaraoke seems to me to be misleading.

BigBangKaraoke first indicated that The MT Pit requires that "Before we will rent our recorded tracks to you, you must first license the show through a professional licensing company and rent all materials as though you had hired a full orchestra." 

This looks to me like a music license is being fulfilled by the person putting on the musical. The writers are being paid, the licensers are being paid, even the orchestrator gets a ka-ching. Unless I'm missing something and The MT Pit is putting on a performance every time they rent out a show... 

I know for a fact that a company like MT Pit couldn't even license the tracks individually through BMI or ASCAP because the shows are not even licensable in their full versions through these companies. There may be single song licenses that could take place through BMI or ASCAP, but not the full show. Beyond that the MT Pit is stating that they are the ones doing original recordings of the musicals so they would not be subject to any royalties for unrelated previously recorded tracks. I hope that makes sense.

If a company like MT Pit were to sell their tracks, then they would of course be responsible to take care of the associated rights and royalties.

Hypocrites and Pirates??? Perhaps that's an overstatement. Thanks for the conversation.

P.S. For those that have used mt pit, what has been your experience with the quality of the tracks?


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## Starlet24 (Nov 14, 2015)

ItStartsWithAStory said:


> Hypocrites and Pirates??? Perhaps that's an overstatement. Thanks for the conversation.
> 
> P.S. For those that have used mt pit, what has been your experience with the quality of the tracks?



The last tracks I heard used through them were the full version of Les Miserables. It was horrible. They were not full and big like they should have been. They tried to get as close to all the original pieces that are supposed to be used like zithers and the like, but instead it was a synth nightmare. The horns and all brass was weak. I don't get how you can mess something like that up. But they did. Not only that but the tracks skipped at the show I was at and they had the music turned off and the play on hold for EIGHT minutes while they tried to get things going again. The music director in the pit (alone) had a DX7 in the pit with him and he just started playing. His solo performance sounded better than those lame tracks. 

Wizard of Oz are great tracks, actually. It sounds like they used a real orchestra for that one and it's full and really good. Guys and Dolls is ok - horns are definitely real. You can sample their stuff - if you get them for rehearsals they say "rehearsals tracks" in a very annoying woman's voice over and over - about every 60 seconds. They're about the same as what you would get once you get the score. IF you are particular about your vamps and your cuts, you will need someone who reads at the very least piano scores and then someone who can check MTPit's work once they send back your edits. They will do exactly what you say - cut this bar to this bar - and they don't care how it sounds once it gets back to you. They will charge you $50 per mess up YOU make, more for rush orders and you will have to fight them and prove to them that they've made a mistake. In my opinion, they are a last resort and they are extremely expensive.


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## ItStartsWithAStory (Nov 14, 2015)

Is this the Les Mis track that you heard? 

http://themtpit.com/albums/shows/les-miserables/

I'm guessing what you heard wasn't these tracks because it sounds like a pretty large orchestra to my ears.


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## Starlet24 (Nov 16, 2015)

ItStartsWithAStory said:


> Is this the Les Mis track that you heard?
> 
> http://themtpit.com/albums/shows/les-miserables/
> 
> I'm guessing what you heard wasn't these tracks because it sounds like a pretty large orchestra to my ears.



Those are definitely the tracks. Having played this show numerous times in the pit, this is a synth nightmare. And it's largely out of tune. Horrible to my ears.


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