Producers beware! Theatregoer sues over canned music and wins!

We're definitely not in Kansas anymore!

A british theatregoer has prevailed in his lawsuit against a theatre that used recorded music in staging its production of “The Wizard of Oz”.

In a time of increasingly tight budgets, many theatre groups are opting for recorded musical accompaniment, in lieu of paying for an orchestra, conductor, and the additional audio requirements a large orchestra can impose on a production. The savings can be significant, but at what artistic cost? Critics complain that the ‘canned' music or “tracks” as they're sometimes called, drastically reduces the vibrancy of the performance given by the actors, singers and dancers on stage.

In England, the cost can be even greater. Adrian Bradbury sued the producers after attending a production of “The Wizard of Oz” that used tracks instead of live musicians.

Bradbury, who is the son of a clarinetist in the BBC orchestra, claimed that the billing of the show as a “Musical” violated the U.K's “Trade Descriptions Act,” which bans false advertising. Bradbury's claim centered on the idea if a person had bought tickets to a show billed as a “magical family musical” he or she would be entitled to expect live musicians. The Judge Agreed, awarding him a refund of the ticket price.

Here in the U.S. the licenses granted for most stage productions explicitly prohibit the use of recorded music, and require that the show be performed exactly as written, with all instrumental parts covered, etc.

It is, however, increasingly common for the publishers of musicals to offer ‘tracks' (sometimes under trade names like “band in a box”) as an alternative. Renting the equipment and recordings to the producers in place of the musical scores.

Could american theatregoers bring similarly successful claims if disappointed at the lack of live musicians in the orchestra pit? It's certainly possible. The United States' Lanham Act, and many State Unfair Competition statutes prohibit deceptive advertising in a fashion similar to England's Trade Descriptions Act.

The big question, then, is how to accurately advertise a “musical” that uses recorded tracks? Should the word “Musical” carry a footnote in all advertising?  In Bradbury's case, one expert witness  stated that, without an orchestra or musical director, “a performance of The Wizard of Oz is best described as karaoke”.