Opera and Copyright: Why is Mozart Performed More Often than Modern Composers? (Is Copyright the Reason?)

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Early in the New Year I thought it might be fun and interesting to look at how copyright and opera intersect, not that much opera is being performed these days. However, if the COVID vaccines are rolled out quickly and effectively (right now this seems more like a hope than an expectation), allowing public performances to resume, then La Scala, the Met and all the other famous venues may be back in business by the end of 2021. That’s something for lovers of opera to look forward to.

Many of you may fall into the category of true opera aficionados. You’re able to hum famous arias, know all the main characters in The Magic Flute, can sing the libretto in Italian of The Barber of Seville, and are able to recite Beverly Sills’ most renowned performances. I also suspect that many others are a bit like me. We love to go to the opera occasionally, for the music, the costumes, the whole spectacle. And when we go, we usually choose to see some very familiar work—Carmen, or Marriage of Figaro or La Bohème, for example—because, well, they’re familiar.  We like to hear the music and songs that we remember, and follow the stories that we more or less know (while recalling that all opera plots are generally ridiculous and that most of the characters on stage will eventually come to a tragic and unhappy end). To keep us—the average opera-goer—coming back for more, artistic directors ensure that their programming includes a healthy dose of the classics. More avant-garde, experimental pieces are usually mixed in but the bread-and-butter of most companies, seeking to ensure balanced budgets and full houses where possible, are the tried and true “recognizable” works. There is nothing very surprising in this. Symphony orchestras work much the same way, balancing the need for popular appeal by regularly playing the classics combined with trying out new pieces to expose audiences to something different.

Thus it was with great interest that I recently read a research piece from WIPO, the World Intellectual Property Organization, that suggested copyright might be the reason why more classical operas, which are in the public domain, are performed than are modern pieces that are still under copyright protection. (There was the usual disclaimer for such think pieces that the views expressed were those of the authors, and did not necessarily reflect the views of WIPO or its member states.). The study’s focus is stated as follows; 

“Today, the works of almost no living composers are performed on global opera stages….Why are we not seeing more performances of modern operas? What are the factors that have driven new works off the stage? While previous research has focused around how copyright incentivizes composers to create new work, we’ll be taking a look at the economic role of copyright and how it affects opera houses’ decisions around staging and reusing works. Is granting exclusive rights to new opera works actually excluding them from the stage?”

The paper points outs that of the 50 most widely performed operas globally in 2017-18, only 1 percent of them were written by composers born in the 20th century (29% of composers were born in the 18th century and 70% in the 19th century). The only 20th century work in the top 50 was Leonard Bernstein’s Candide. It had 111 performances during this time period. The most popular, Verdi’s La Traviata, had 853.

To the question of whether copyright encourages creativity in the opera world, the paper argues that while in theory copyright incentivizes composers to create new operas by granting them exclusive rights, in the case of opera this might not be true because “new, avant-garde works tend to attract smaller crowds and sell at lower ticket prices compared to the many popular works in the public domain. Opera houses have low expected revenues from these performances so the cost of licensing them from composers becomes too high.”

The first part of this statement is certainly true, but does it follow that lower revenues mean that the cost of licensing new works is too high relative to anticipated income? To me this is a questionable conclusion although the paper states that it can document that works are performed more frequently (plus 15 %) once they are out of copyright than when they are under copyright protection.

The extension of the argument that new works are performed less often because of licensing costs is that artistic directors select which operas they will perform based on whether or not they have to pay royalties. Why not go for Mozart, when his work is in the public domain, over, say, John Adams, the composer of Nixon in China, Doctor Atomic and a number of other modern operas. Could licensing fees really be that significant a disincentive and does payment of royalties skew the decisions as to which works to produce? I think this is a dubious proposition where adding 2 plus 2 has yielded 5. Yes, many fewer modern operas are produced than classical works, and yes, modern operas require payment of copyright licensing fees whereas classical works don’t. But is there a direct correlation between these two sets of facts or are there other factors at play—factors such as the tastes of “average” opera-goers like me?

In a search to find out, I contacted the artistic director of my local professional opera company (Pacific Opera Victoria), Maestro Timothy Vernon, putting the question to him. He responded that “royalty payments are important in drawing up a workable budget, but are seldom if ever a determining factor in deciding to produce any given opera.” Maestro Vernon said that if a copyrighted work is chosen, there will be a negotiation with the publisher, taking into account factors such as the size of the company, its audience and budget, and the popularity of the work. As artistic director, while mindful of financial parameters, first and foremost he considers artistic aspects in making choices as to what works to offer to his audiences, recognizing that there are 400 years of opera creation to draw from.

That is only one view, but I suspect it is a common view among those who determine what works to offer audiences in the opera world. Artistic considerations come first.

Another factor to consider is the cost of royalties in comparison to the considerable expense in putting on an opera. I am not privy to what it costs to license an opera production but as Timothy Vernon noted, often a negotiation takes place. In the elusive search for truth, I went on the internet and tried to research the cost of vocal scores and full scores for a couple of modern operas, namely two by John Adams, Nixon in China and Doctor Atomic. Some well-known sources of musical scores are the famous British music publisher Boosey and Hawkes and the longstanding US firm of J.W. Pepper (which sells the Boosey and Hawkes produced vocal score of Nixon in China). Ordering the vocal score of Nixon directly from Boosey and Hawkes will cost $99 (all prices in USD). If ordered from J.W.Pepper the price is a bit cheaper at $85. The full score is available for only one piece from the opera, Chairman Dances, for $45. Boosey and Hawkes informed me that the full score for Nixon was not available for sale, but perhaps it could be available “to hire”. The full score of Doctor Atomic is available from J.W. Pepper for $175 and just the vocal score for $75. This seems like a pretty modest sum, but then I am not sure how many copies are required. I assume that if a large number are purchased for the choir, a bulk rate could be negotiated. In sum, the amounts involved are more than trivial but less than significant, and compared to the total cost of mounting an opera, the cost of copyright licensing can hardly be considered the key factor in determining whether or not to stage a particular work. To the question posed “Does copyright actually encourage the creation and promotion of new opera works?”, I would have to answer that it certainly does not discourage it.

While I disagree with the proposition that “copyright may act as a barrier to entry and licensing cost hurdle for new, more avant-garde operas, particularly for new productions that are outside of an opera house’s standard production repertoire” (because the WIPO research piece overstates the role of copyright fees in determining which works get air time), the issue of how new pieces can get performed in order to attract recognition and popularity among audiences is a real one. The author of the WIPO document (Alexander Cuntz) offers a couple of suggestions to remedy this problem. First, he proposes that consideration be given to establishing a new collective management system for licensing opera productions, which would require that a new collective rights management organization be established.

Another is to encourage the testing of new opera on both stage and on digital platforms, in order to give new productions greater exposure. If copyright fees are truly a disincentive to staging more new operas (a conclusion about which I have reservations), he argues that lower streaming royalties could be negotiated to encourage digital productions. However, if copyright fees are not the real problem but simply mask the basic issue which is the unfamiliarity of audiences with new works, distributing productions online will only partially solve the problem. Digital distribution will reach more audiences, but there are two issues that need to be addressed; production costs and revenue generation. Production costs for a digital opera production may be somewhat less given that it only needs to be performed once, and then recorded, but initial costs will still be close to a live performance. On the revenue side, it has proven difficult in many fields to raise significant revenue from digital offerings, or at least as much revenue as from a live performance. A livestream performance should bring more revenue than a recording, but even a livestream performance is unlikely to begin to match the cost of seat at a live opera. Views of a recorded performance will generate a much lower return. One can argue that the lower unit cost of a digital performance can be offset by repeated viewings, but this is unlikely to close the revenue gap.

The WIPO paper posits the conundrum that copyright exists to incentivize new production yet, if you buy the argument in the study (which I don’t), it also tilts the playing field in favour of public domain works because of the cost of royalties. However, you could make the same argument about plays or symphonies, but I doubt if the timeless popularity of Shakespeare is a result of Hamlet or Romeo and Juliet being in the public domain as opposed to the work of any modern playwright. Rather it is a result of audience choice, and familiarity with those classical works that have stood the test of time precisely because they are the best of the lot. Artistic directors have learned to their peril that while they may wish to “educate” their audiences and challenge them with new, sometimes avant-garde works, the operas that pay the bills come from a limited repertoire of classical favourites. The finger of copyright rests very lightly if at all on the scale that determines which operas get selected for production. In fact, I will wager that in almost all cases, copyright is scarcely a factor at all.

© Hugh Stephens 2021. All Rights Reserved.

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