Then, I grant you, the composer-conductor lives on a plane of existence unknown to the virtuoso. With what ecstasy he abandons himself to the delight of “playing” the orchestra!
How he hugs and clasps and sways this immense and fiery instrument!
Once more he is all vigilance.
His eyes are everywhere.
– Hector Berlioz
The Memoirs of Hector Berlioz
edited and translated by David Cairns, W.W. Norton, p. 285

I have spent the last several years at orchestra concerts and ballet performances on my own singular plane of existence. Furtive, vigilant, with my eyes everywhere (for I might get caught!) and my ears carefully attuned to “playing” the orchestra, I’m on a secret mission: to surreptitiously record intermissions.

At concert halls across the country, symphony musicians often return to the stage during intermission, sometimes mere moments after the entire orchestra has officially exited. Individually or collectively, clarinetists, trumpeters, timpanists, and others warm up and work through difficult passages that await on the remainder of the program. This soundscape is not limited to American orchestras, though in my experience, visiting European orchestras, after the program’s first half, usually remain backstage until the second half of the concert begins.

Why record intermissions? One duty of the composer is to expose the unexpected, overlooked, and hidden skeins of music woven in the world around us. Culling sounds from the world as a composition subverts long-standing, essentialist notions of music as comprised of notes, melody, traditional instruments (violin, guitar, drums, piano, etc.) and so forth as well as flouts contemporary expectations of abstractly agglomerated, musique concrète-ized sound.

Throughout history, the definition of music has remained a moving target. I hope recording and presenting these intermissions in some small way abets and accelerates the ongoing re-definition of music in our culture towards moving, meaningful, coherent listening.

Making such recordings is illegal, a result of rules negotiated by the Musicians Union and various venues, yet I believe the importance of documenting these intermissions trumps antiquated copyright laws and misguided prohibitions.

There’s little money to be made – I doubt Deutsche Grammophon has plans to release a compilation such as Favorite Intermissions any time soon – and these recordings seem unlikely to damage anyone’s reputation, though it might tweak a conductor’s ego to find out that the best “new” music is heard between two halves of his or her meticulously planned concert program.

Recording these intermissions preserves a soundscape that could be blithely abolished by the arrival of a new music director – who might forbid on-stage warm-ups during intermission – or rendered extinct by the eventual implementation of noise cancellation technology that silences a room and hermetically seals conversations, confining any chatter to the person next to us.

I hope this album offers a new entryway to orchestral music; stagehands dragging chairs, instrumentalists leafing through music and trilling a few notes, close by conversations, and the distracted ambiance of the crowd combine to flatten and inscribe the aural surface. As a phonographer, I too am present, improvising corporeally as I angle my body-mounted microphones to capture the right mix of everything I hear. My voice, the flaws of my surreptitious recording system, and faults (and in “Awaiting AGON,” the incipient failure) of my equipment are all part of the music. Today’s glitch is tomorrow’s melody.

I adore listening. At the last possible moment – or when the ushers begin to eye me suspiciously – I rush back to my seat to hear even more music.

Published in Soundscape: The Journal of Acoustic Ecology, Fall/Winter 2004 in mid-2005, p. 22 and revised September 2006 for the Favorite Intermissions CD.

One month after Favorite Intermissions appeared in the New York Times in May 2007, Universal Music Group (UMG), the corporate “parent” of Deutsche Grammophon (DG) initiated heart-stopping legal action against myself and GD Stereo. Claiming that the album violated their trademark and the attendant (and nebulous) concept of “trade dress” of DG, UMG demanded the surrender and destruction of Favorite Intermissions.

The U.S. judicial system remains notoriously unfair, exclusive, and blind to its own bigotry against the poor. Trained by cop shows, every American knows the Miranda Warning: “If you cannot afford an attorney, one will be appointed for you.” The accused, even the impoverished, have a right to “appointed counsel,” which might mean a great, good (maybe goodly intentioned), or at least a semi-conscientious professional will advocate for you in criminal court.

Impoverished civil litigants, by contrast, have no constitutional or statutory right to appointed counsel. Legal aid societies and non-profit organizations may or may not take your case. Budgetary constraints and available staff as well as the expectation (or lack thereof) of victory mitigate against any guaranteed advocacy. Unlike the accused in a criminal case, someone else decides if an attorney will defend the destitute in civil court.

A system truly confident in administering impartial justice would remove money from the equation by requiring the random appointment of counsel to both prosecution and defense. We know this will never happen; there is too much money to lose, too many all-marble bathrooms at stake (yes, I temped at several law firms). Not the truth, but a good (or great) lawyer can set you free.

Defending yourself is untenable. Our educational system does not teach its citizens how to navigate the legal system, much less any awareness of the difference between a civil action and a criminal charge. Do you know what it means to file a lawsuit pro se? Can you check your mens rea at the door? Without money, the court system – and honest justice – is closed to you.

What does an impoverished artist do when a non-human alien life form with billions of dollars in the bank (i.e., a corporation) threatens to bankrupt your life and destroy you in civil court? You take a deep breath, you consult with allies; I am deeply grateful to Keith Sanborn, Rick Prelinger of the Internet Archive, the Electronic Frontier Foundation, and attorney Kohel Haver for their wisdom and support. Then you surrender.

Anyone familiar with the twin history of album covers and graphic design will surmise that a solid case could have been made against UMG for failing to enforce their trademark and “trade dress.” Favorite Intermissions was not the first to parody the DG look, however mounting such a defense would have placed – based on my own modest knowledge and research – over two dozen artists and labels at risk for litigation.

Rather than betray my fellow parodists and pit them against a corporate colossus with in-house(!) legal counsel, we did the unexpected. We befriended the enemy.

I negotiated directly with UMG on behalf of myself and GD Stereo. We reached a compromise which allowed Favorite Intermissions to return after the offending cover was destroyed and replaced.

Although GD Stereo and I wanted the replacement cover to remain congruent with the multifarious intent of the album, we also didn’t want to give the corporate behemoth another opportunity to squash us. So we did the smart thing. We asked them to approve the cover.

UMG’s counsel rejected the initial replacement cover designs depicted in the image-strip above, responding “Although it is, admittedly, a clever pictorial representation of your agreement in response to our cease and desist letter, I must object…” We eventually reached an agreement. The torn, blackened cover on the far right of the image-strip is the current cover.

UMG’s ultimate approval of the revised cover of Favorite Intermissions unwittingly fulfilled the corporate giant’s central accusation: my intent to establish a relationship between DG and Favorite Intermissions.