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War Horse musicians sue National Theatre

Are artists special? In the musical adaptation of Alan Parker’s iconic film, Fame, set in the New York High School for the Performing Arts, there is a pivotal scene where ballet teacher Ms Bell and English teacher Miss Sherman battle for the hearts and minds of their students:-


Artists are special, celestial fools

Blessed with a talent for breaking the rules

Unfit for confinement in cubical schools

Artists are special.


Artists are people, not primitive fools,

They learn what to do before breaking the rules

They know that the brain is the finest of tools

Artists are people

Artists should be treated differently, argues the dance teacher, because they simply are different. It’s an argument which runs throughout the show and gives audiences food for thought without ever purporting to teach them the ‘right’ answer.

But it’s an argument that’s being played out in real life as the National Theatre find themselves in the High Court this week, taking on the musicians of War Horse. The newspaper headlines declare that “Musicians Lose Legal Battle Over Jobs”, but (as is often the case) the headlines only tell part of the story…

The Background

War Horse has been one of the most successful productions mounted at the South Bank in recent years. Michael Morpurgo’s 1982 children’s novel explains the suffering of war from a truly impartial viewpoint – that of an officer’s horse, Joey. It was later adapted for the stage and, with the assistance of South Africa’s Handspring Puppet Company, the National Theatre mounted the first stage production at the Olivier Theatre in 2007. The revolutionary life-size puppets captured the public imagination and the production has gone from strength to strength, transferring to the West End in 2009 and subsequently touring to the US, Canada and Australia. Advances in broadcast technology means that audiences further afield have been able to enjoy the show, as it featured in one of the flagship NT Live Broadcasts, relaying a live performance to spellbound cinema audiences around the country.

It’s a production on an epic scale. The puppets for each fully-grown horse each require three operators. With two horses on the stage it’s a physically imposing sight and the production is scaled to match. At its height (prior to March 2014), War Horse played with a cast of 36 actors. The orchestral score is equally epic, but features recorded music embellished with five live musicians who played from the band room, with the sound fed through to the auditorium. In addition the musicians featured on stage in costume, to play for up to 3 minutes during the ‘sequestering’ scene. (The characters of the Song Man, Accordionist and Bugler are played by ‘actor-musicians’ who feature in the acting cast not the pit band. And for the purposes of this blog, that means their contracts will likely be backed by Equity and not the Musicians’ Union).

Touring a play is an expensive business. The whole ensemble and the whole staging need to be created in duplicate whilst the original production continues to play the west end, and so any cost-saving measures are to be encouraged. Although War Horse has toured extensively, the touring productions have never featured the live musicians (save for the actor-musos) relying instead on a wholly recorded score for the incidental music.

The Difficulties

War Horse has played at the New London Theatre since 2009. Inevitably, over a period of five years, audience numbers diminish, and Nick Starr the chief executive of the National Theatre (who was honoured along with retiring artistic director Nicholas Hytner in a joint award at the Olivier Awards this week) is on record as saying that profitability is down. To survive, and to deliver other critically acclaimed productions, the National Theatre must maintain a profit where it can – like any other business.

The director and the composer agreed, as a cost-saving measure, to bring the London production of War Horse in line with the touring productions and rely solely on recorded music. The National Theatre sought to terminate the musicians’ contracts in December 2012, but following a mediation process established with the Society of London Theatres and the Musicians’ Union, it was decided that the National could not unilaterally terminate the contracts. But the switch to recorded music had already begun. Although they were to remain under the employment of the National, the musicians’ roles were reduced to playing in a single 15-minute scene of the show.

But clearly, having to employ five musicians (plus deputies) for a single scene of the play, when the balance of music has been recorded is a mounting expense for the National – more than a quarter of a million pounds a year. In March of this year, the National served notice on the five musicians that their roles were redundant and their employment would be terminated completely.

The departure of the musicians coincided with other amendments to the production. As is often the case with a long-running show when fixed term contracts come to an end, there were large-scale changes in the acting cast, with changes to around 50% of the cast. With the absence of the musicians from their previous on-stage scene both the direction and the technical aspects of the scene were altered to take account of the change. The new cast were rehearsed in over a period of 7 weeks, learning only the new version of the scene – now changed for good.

The High Court appearance

The five musicians were seeking not only to challenge the termination of their employment, but sought an interim court order to force the National to re-hire the musicians and allow them to work their previous roles pending the final court decision on the employment contracts.

From a legal standpoint this is unusual to say the least. The standard legal remedy to challenge redundancy would be an unfair dismissal claim (routed first through an Employment Tribunal, not the High Court). In an Employment Tribunal situation, even where a claim is successful, a tribunal will rarely force an employer to re-hire an employee - there is a general presumption that the working relationship will have broken down (and no doubt been exacerbated by the unfair dismissal claim).

In this case though, the musicians argued that by refusing to allow them to perform the National Theatre were in breach of Article 10 of the European Convention on Human Rights, which protects freedom of artistic expression.

The decision on the validity of the redundancy claim has not yet been made, but the decision which has made the headlines was the Court refusing to uphold the human rights claim. The freedom of artistic expression is protected for the National Theatre too, and the court noted that since the National had decided the most appropriate version of the play was one with recorded music, it was not for the court to start making directorial decisions. The judge even noted that the human rights claim backfired on the musicians, as they were still free to play their instruments “albeit not in War Horse”.

Why does it matter?

By trying to invoke the European Convention on Human Rights, the five musicians are trying to run the legal equivalent of the Teachers’ Argument from Fame - that ordinary rules should not apply to artists, because they are special and their freedom of expression should not be inhibited in any way.

But all freedoms come at a cost and that needs to be balanced. Neither the National Theatre nor the musicians in question can function without an audience.

And from an audience point of view, the departure of the musicians seems to make no impact at all. For the most part, the musicians had been hidden from view in the band room and the sound electronically conveyed to the audience. The audience doesn’t care if that electronic sound is a live feed or a pre-record. They are still treated to engaging live performance from the actor-musicians who further the plot, and since the audience were largely unaware that the incidental music was a live feed, the lack of the musicians will not be felt by them.

So if a change to the production makes no impact on the audience, but frees up a quarter of a million pounds a year for the National Theatre to plough into new programming and an even broader audience experience, why shouldn’t it be made?

Yes, it’s sad that people had to lose their jobs. But the National Theatre is a business like any other and artists aren’t exempt from challenging times. For an artist to affect an audience, they need to reflect the audience’s world, not stand apart from it.

It seems that the National Theatre knows that full well.

We’re off to book our tickets for the next NT Live broadcast of The Curious Incident of the Dog in the Night Time and we can’t wait to see what they come up with next….

War Horse.jpg
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