davidbeem

Young Person’s Guide to Careers in Classical Music Part II: When Entertainment isn’t Education

In Arts and Education, Young Person's Guide to a Classical Music Career on September 15, 2012 at 5:57 pm

Today’s blog post is generously shared with us by Stephen Soderberg, the recently retired Senior Specialist for Contemporary Music in the Music Division of the Library of Congress. I’ve included his bio at the end of this blog for those who are interested in getting to know Stephen a little better.

Stephen and I met on Facebook a few months back and he shared with me this very interesting blog, which carries alarming implications for the future health of the American symphony orchestra.

I’m filing this under my Young Person’s Guide series because aspiring orchestra folks should have an idea of the nuts and bolts of how orchestras float, and how they may stand to be restructured, should this Milwaukee ruling go national, to the U.S. Supreme Court. I had intended the second blog in this series to be about outreach, but found myself wanting to reference data from this blog, so I’ve decided to publish this first, then do the outreach blog as third in the series.

Without further ado:

GUEST BLOG

BREWED IN MILWAUKEE

By Stephen Soderberg

First published May 9, 2010, in the blog Logogriffin (now defunct).

To begin this, let me say that I am not a lawyer. The closest I’ve ever come to reading the law was Should Trees Have Standing? by Christopher Stone. I read it three times, so maybe I get extra credit. But still, I’m not a lawyer. Remember that as you read on.

Second, I generally stay away from the raves (as in parties not reviews, but the reviews too) where critics lately have taken to whipping themselves and a few music departments and arts administrators into a frenzy over saving classical music, both old and new. Yes, audiences are aging ~ No, I do not believe “the young people” will flock to hear Yo-Yo Ma play the Bach suites in the men’s room at Le Poisson Rouge. Pretending art is common entertainment won’t save it. Just the opposite. That’s what this post is about.

Four days ago I read an item I was pointed to from the Arts Journal site titled “Court rules against Milwaukee symphony in tax dispute.” The gist of it was that “Wisconsin’s five percent sales tax does apply to the sale of tickets to Milwaukee Symphony Orchestra concerts.” That alone, given the current disarray of performing arts organizations and the state of the economy generally, is sort of a ho-hum. If a little sales tax on tickets is all an orchestra had to fret about, well, they could easily make up for it by shmoozing a little harder on a big donor or two. That’s what they pay “development” offices for. Pay the tax. End of story.

Then it hit me. I remembered something I learned from Christopher Stone (well, not in so many words): It’s not the decision, stupid ~ it’s the argument.

The article goes on to say the courts found: “… the orchestra’s concerts are entertainment events [argument] and therefore are subject to the tax [decision]. The court rejected the symphony’s argument that the 100 to 150 concerts it gives every year are primarily educational and charitable in nature and therefore exempt.”

I have been half-joking (very, very, very quietly) with friends and colleagues for years that performing arts organizations are really lucky to have intelligent friends in high places who agree with us artsy folks that a concert is “educational.” It’s the only non-profit category in the U.S. tax code that an orchestra can reasonably be made to fit into. Here is how it reads:

Internal Revenue Code Section 501(c)(3):The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.

If, like so many seeking quick information, you go to Wikipedia (yes, I do it all the time myself) you’ll find this more comforting summary:501(c)(3) exemptions apply to corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, educational purposes, to foster national or international amateur sports competition, promote the arts, or for the prevention of cruelty to children or animals. [my italics]Whoever the Wikipedia editors were on that one, evidently they thought they should add what “we all know to be the case” ~ but, as far as I know, it is not (literally) the case. There may have been administrative, and, for all I know as a non-attorney, judicial, “interpretations” of the word “educational” to let the arts in, but nothing in the Code reads “promote the arts” in so many words. If it did, every rock group in the land, each of which by currently accepted popular definition is a purveyor of “art,” would incorporate and apply for 501(c)(3) status ~ but no garage band I know of has yet convinced the IRS that its goal is to educate.

At this point, if you are a serious arts administrator ~ or a critic ~~ or professional arts blogger who would enthuse over a music video featuring the members of the string section of the Chicago Symphony in clown costumes jumping through fiery hoops to throw complimentary cakes of rosin into a crowd of crazed seniors flicking Bics ~~ you need to do what I did to sober up:

Read the Wisconsin Supreme Court decision ~ every word of it:

I truly hope there are attorneys out there who might chime in to enlighten further and correct me, but my own very amateur opinion after reading it (and before correction by those who might know what they’re talking about) is this:(A) The Wisconsin Supreme Court is probably technically “correct” in its decision to uphold the state Department of Revenue’s interpretation of the tax statute. They kept to a strict reading that focused on “entertainment” as the legislative basis for the tax and found that (1) people go to a symphony concert primarily to be “entertained” and (2) promotion of symphony concerts emphasized the entertainment aspect and barely mentioned any “educational” value.(B) The decision specifically insulated itself (or tried to insulate itself) from 501(c)(3) because entertainment, not education, was the issue. This is where it gets dicey. The Symphony’s mission statement (just as that of every performing arts group in the U.S.) says that their services are “educational” and the federal government tacitly backs that claim by accepting the Symphony as a non-profit. Ignoring this as irrelevant to the specific case at hand, the Wisconsin Supreme Court found that the Symphony’s primary function for purposes of the state tax law is entertainment. (The Court came close to calling the Symphony’s mission statement a fabrication.) So the Court agreed with the state Department of Revenue’s determination that (1) an event that is 50% or more entertainment is subject to state sales tax, (2) by that definition the Symphony was obliged to pay the tax, and (3) any counter-determination by IRS that a symphony concert is “educational” is irrelevant.I am probably missing some subtle points of law and logic here that would make my judgement seem silly ~ a lot like those I rail at for rendering pseudo-authoritative opinions on technical matters in music when they haven’t the foggiest idea what they’re talking about. But fools rush in, so ….It appears to me that, despite the Wisconsin Court’s disclaimer, they have, albeit unintentionally, set the stage for a potentially apocalyptic battle that the performing arts community in the U.S. REALLY doesn’t want to have and, given circumstances of their own making as demonstrated in the Milwaukee case, can’t win.The Wisconsin courts were right, I think, in the specific case before them ~ that they couldn’t reach into 501(c)(3) as the Milwaukee Symphony wanted them to, such that determination of federal tax status on one basis trumped the state’s right to tax ticket sales on a different basis. But now this issue puts the question on the table as to whether “promoting the arts” is legally considered an “educational” endeavor or merely an attempt to maintain a favored status for certain forms of “entertainment,” striking right at the heart of the basis for charitable arts support in the U.S. ~ namely the tax exemption under 501(c)(3). 501(c)(3) is the Ace in the bottom floor of a house of cards. Take it away and the house falls (just ask the executive director of any local orchestra, dance company or theater).Right now the Milwaukee Symphony is certainly “weighing its options” as one web article says. But this is no longer only a local matter. The arguments in this case have forced us to confront a false dichotomy: entertainment versus education. It does no good in this case and, arguably, from this point on, to point out that these two things need not be in competition and are often complementary. It is now case law that in Wisconsin, if a concert is 65% entertainment, it cannot also be 65% educational ~ these things are now in opposition. When an orchestra deals with the state, it has to admit it entertains; when it deals with the Federal Government, it has to pretend it educates. By indicating that I personally still think the Wisconsin courts were “right” in this decision, I am also indicating that they really had no choice based on the situation we’ve created in our attempt to make peace with a dominant popular culture where the word “Art” can’t be whispered without shouts of “elitist snob.” Neither the Court nor the state Department of Revenue invented this stupid situation ~ we did.The court was merely affirming the Janus face we in the arts community have been presenting for the past half century or more and hoping would pervade our culture without anyone noticing. We have succeeded. Even if the court had decided a Milwaukee Symphony concert is primarily educational and denied the tax, that would also have affirmed the dichotomy. We just never thought anyone would call us on this: we’re selling apples and oranges because we don’t want anyone to know we’re really mango growers. There’s a gigantic mango in the room, and its name is Art with a capital A. And we keep telling everyone to ignore it, it’s not there, mangoes don’t exist (or, as with the art-is-everywhere approach, it’s all mangoes, so mangoes are irrelevant ~ same difference). And they believed us.

The fairly recent disappearance/denial of the word Art can actually be seen in the Wisconsin court decision, paragraph 88:The [Wisconsin Tax Appeals] Commission highlighted the Milwaukee Symphony Orchestra’s Articles of Incorporation from both 1976 (the Milwaukee Symphony Orchestra’s “primary purpose[s]” are “to organize and maintain and conduct a symphony orchestra and to present performances by the said orchestra . . .to further the cultivation and appreciation of the art of Music. . . . “) and 1988 (“The purposes for which the Corporation is organized are educational, to present classical and other orchestral music, performed with the highest degree of artistic excellence, to promote and develop public appreciation of and to educate the public in such music . . . .”). [italics are mine]With the exception of vestigial (and mostly meaningless) derivatives such as “artistic excellence,” for the most part the word “Art” just plain disappeared. In the present case, it was gone in just 12 years, between 1976 and 1988. And this is not to fault the Milwaukee Symphony’s administration or board. It happened everywhere. The pragmatic reason (denials will be ignored) was to align with 501(c)(3) ~ to survive and maybe thrive hiding behind the skirts of sacrosanct “education.” I doubt you will find a non-profit performing arts organization anywhere in the U.S. today that is so stupid as not to put “education” up front in its mission statement. But the demands of a pragmatic business model (“the business of music is too important to be left to musicians” ~ an actual quote of a real board member of my acquaintance) are not the only reasons.

This dubious connection became even more dubious as public education, pushed by school boards and later “No Child Left Behind,” began going in a much different direction. During approximately the same time frame that orchestras were discovering how to disguise Art as “education” in the 1970s-80s, the word hadn’t gotten to school boards. Art was being escorted out the door of public schools for “budgetary reasons” based on the notion that Art is not a fundamental aspect of education, but a “frill” (read: entertainment).

The idea that music, especially music, is merely a cultural-generational spice to sprinkle on life’s truly important and nourishing food groups such that a meaningful distinction needn’t (can’t) reasonably be made between Bach and Bacharach took hold in just one generation.

It is no surprise, then, that the Wisconsin Supreme Court decided as it did. And it should come as no surprise to the performing arts community when the next shock hits. I don’t pretend to know the exact form it will take, but I feel it’s near.

* * *

And just to be clear, I do not deny a relationship between education, entertainment, and Art. But I see Art as covering the other two, not the other way around. Art can be educational, but in the popular sense of “education” today as nearly synonymous with “training,” the goal of Art is not to educate. Art can also be entertaining, but in the popular sense of “entertainment” today that embraces American Idol, the goal of Art is not to entertain. But it’s too late.

* * *

I started by admitting my only experience in “reading the law” ~ Christopher Stone’s Should Trees Have Standing? I’ll end with the words of another important environmentalist ~ not a legal scholar but a novelist, the late John Fowles who wrote in The Tree: “It is far less nature itself that is yet in true danger than our attitude to it. Already we behave as if we live in a world that holds only a remnant of what there actually is …. I believe the major cause of this more mental than physical rift lies less in the folly or one-sidedness of our societies and educational systems, or in the historical evolution of man into a predominantly urban and industrial creature, a thinking termite, than in the way we have, during these last hundred and fifty years, devalued the kind of experience or knowledge we loosely define as art; and especially in the way we have failed to grasp its deepest difference from science.”

Stephen Soderberg

 

About

With my primary interest in the field of compositional and mathematical music theory, I have published articles in Journal of Music Theory, Perspectives of New Music, and Music Theory Online (see the accompanying CV for a list of publications). My essay, “Transformational Etudes,” appears in the collection Music Theory and Mathematics, ed. Jack Douthett, Martha Hyde and Charles Smith, University of Rochester Press, 2008.  My essay “At the Edge of Creation: Elliott Carter’s Sketches in the Library of Congress” will appear in Elliott Carter Studies, ed. Marguerite Boland and John Link, Cambridge University Press, forthcoming 2012.

I have delivered papers at various conferences, including the American Mathematical Society and the Society for Music Theory. I have been a guest lecturer at the University of Maryland and the University of Iowa, and I am currently on the editorial board of the Journal of Mathematics and Music.  My professional memberships include The Society for Music Theory, The Music Theory Society of the Mid-Atlantic, and The Society for Mathematics and Computation in Music.

I am recently retired as Senior Specialist for Contemporary Music in the Music Division of the Library of Congress where I planned and coordinated internet-, concert- and collections-related projects focused on American contemporary classical music.

As a violinist, I performed semi-professionally in various orchestras and chamber ensembles and taught privately for 45 years.  I studied violin with Ludwig Schmidt and Charles Treger, viola with William Preucil, and conducting with Henry Veld, Charles Gigante and James Dixon. I was a founding performing member of the former Washington Sinfonia and served as its program director for three years.

I have served on the boards of directors for Lorton (Virginia) Arts Foundation, Garth Newel Music Center, and Contemporary Music Forum/Verge Ensemble.

  1. Their recent press release states they’ve ended the fiscal year with a balanced budget and have eliminated accumulated debt –just realized this piece is from 2010. I wonder how much the above case affected their ability to come out in the black (in other words, might have done it sooner?) or if this has been overruled?

  2. Hi Jon,
    Yes, the MSO is a huge, welcome success story in the midst of a troubled music world. And with Mark Niehaus as their new president & ED (from the little I know anyway, a brilliant choice!), they will, for the near future, remain in great shape – musically & fiscally. I doubt the 2010 ruling had much effect on delaying their getting to the balanced budget they now enjoy – it could have even provided a sort of rally from supporters to make up the loss from the tax for all I know. A far as being overruled, I can find nothing else on the web that says the MSO challenged the ruling, a challenge that would have immediately made it go nationwide. So, again, as far as I know, the ruling stands as case law that could easily be cited in other states.

    Of course, this post isn’t about the Milwaukee Symphony per se. The MSO & Wisconsin just happened to be where the first shot was fired & hardly anyone (except perhaps behind the scenes) seems to have heard it. But the case really does serve to define where the battle *might* go. Now that this post from 2010 has been reactivated, this time with a much wider reach thanks to David, I note that it still hasn’t drawn many public comments, which doesn’t really surprise me. But now I feel challenged to update it to our present, real situation in the midst of a really nasty election.

    When I first read the decision in 2010 & realized it hinged on education VERSUS entertainment, it sent a chill down my spine. I had the same initial reaction that I think a lot of people out there have: first, surely my imagination was running wild (nothing serious could come of this), and then, realizing the politics that were building around “reshaping the tax code,” I should just keep my mouth shut because (I think this is probably what MSO & other orchestras were thinking) I don’t want to give anyone any ideas. But ultimately, my choice to try to ring an alarm bell (for a fire that’s just a spark right now) hinged on the old saw: To be forewarned is to be forearmed.

    So I’ll be writing more on this & post it by the end of the day I hope.

    And many thanks to David Beem for generously lending space on his excellent blog!

  3. For easier reading I am posting this “update” of the original post in 5 brief comments. The first 2 will come close together because the first is a kind of review of the portion o the decision where the usual approach just didn’t work.

    (1)

    For those without the patience to read through the decision, the following quick summary of MSO’s argument is meant to show that the MSO threw in just about every argument they could think of to justify their claim that a symphony orchestra’s primary purpose is educational while at the same time downplaying the entertainment value which is, after all, what puts butts in seats:

    1. Expert testimony from a musicologist who tried to demonstrate to three judges why listening to the Eroica is, in and of itself, an educational experience
    2. Outreach in the public school system & childrens’ concerts
    3. Pre- and post-concert presentations and discussions
    4. Program notes and distribution of other educational materials
    5. Survey of audience motivations conducted by the American Symphony Orchestra League
    6. Acceptance of 501(c)(3) non-profit status by the IRS based on fitting into the “educational” category (plus other state & federal exemptions based on MSO’s educational or benevolent pupose)
    7. MSO’s own mission statement with “educational” purpose prominently featured

    None of this worked, mainly because the court had already accepted an either/or purpose test that doesn’t recognize an overlap. So on a scale of 1 to 100, they really had to show that more than 50% of a concert experience is “educational.”

    Next: Politics.

  4. (2)

    While I understand there are many reasons for the silence out there, which I respect, I have nevertheless been frustrated at the lack of public discussion on this topic. So I turned to a FB friend who happens to be an attorney who recently retired to go to grad school in music composition. While he has given permission to use his name and words, I’ll still protect his privacy by calling him DBR – it’s up to him to correct me if I misconstrue what he said as well as to own up to his own lawyerly sins. So…

    DBR began by accurately quoting my question back to me: “Is Stephen’s threat assessment hogwash or not?” He then cut through my crap and went straight to the point I had been trying unsuccessfully to get at:

    “As a preface, I think that your overall position – that art is at the same time educational, entertaining and something else unique altogether – is clearly true. The law, on the other hand, is an ass. You seem to bebothered more by the disrespectful attitude of the courts and litigants toward music and art than the details of the opinion, and you are probably justified. I believe, however, that your anger with the court is misplaced, and is better directed at the Wisconsin legislature. … The legislature could fashion an exception to the sales tax law exempting arts functions, but the courts can’t draft that onto a law duly enacted – separation of powers.”

    I could argue back that the state tax commission already “legislated from the bench” in a sense when in a previous case they allowed a circus museum in Wisconsin to escape the sales tax by declaring they were mostly educational rather than entertaining, despite the fact that the statute itself never uses the word “educational.” It was reasonable for MSO to argue, look, if a circus museum and, in a later case, an annual air show fly-in are more educational than entertaining, surely a symphony concert is mostly educational.

    But continuing to argue that way as I have done keeps the problem bogged down where I was before. The value of DBR’s response here, for me, is that it moves the argument to where I want you all to consider it – in the legislative, and therefore highly political, arena – in the midst of an election where one of the few assumptions both sides agree upon is that the tax code needs to be revised which will be a big step toward improving revenue sources and eventually solving the budget crisis. Furthermore, even forget the federal tax code, as DBR succinctly put it to me, “I think what we’re seeing is cash poor states hitting up what they perceive to be elite constituencies for extra dough.”

    Next: Whose definition?

  5. On the other hand, I may as well get all five out at once. Read at your leisure….

    (3)

    DBR then argues (as did the judges) that the MSO status under 501(c)(3) is, for purposes of the case at hand, unrelated to the state’s entertainment tax statute. His position is: “In short, your argument is not invalid, but the sky is not falling yet. Nobody will be able to use this state court decision to mess with the IRS rulings that permit orchestras to remain tax-exempt as educational organizations.”

    My reply is: yes, but this is a dangerous kind of comfort. This conclusion, correct or not, just underscores the larger issue of definitions. While nodding to the IRS’ definition, the judges chose to use common dictionary definitions of “educational.”

    Most of us keep trying to get above the whole education/entertainment dichotomy and get to that “something else unique altogether.” We are at a loss here. We know what this unique something is. We experience it. We help others to experience it. But we can’t find the words for it. It is a truly ineffable quality and experience, and we want to share it. Unfortunately we live in an age and place where, if you can’t eff it, it doesn’t exist.

    Even the word “art” doesn’t help anymore because it commonly points in only one of two directions in people’s minds, depending on context. Either it refers to an elite hobby (how dare you demand a living wage to play Bach?) or it refers to anything and everything in the “entertainment world” (try to tell a fan that Justin Bieber is not an artist of comparable worth to Mozart). I have a lot more to say about this, but that will have to wait for another time.

    So now, to the Big Irony.

  6. (4)

    When the Wisconsin Supreme Court made its nod to the IRS’ working definition that allowed orchestras to claim non-profit status under the “educational” category, they cited the IRS’ basis for this determination. I want you to look at the citation for a moment. Stare at it.

    The Internal Revenue Service, Solicitor’s Memorandum, 1919-1 C.B. 147, 1919 WL 49784 (1919)

    It’s hard to miss that date. This C.B. (Cumulative Bulletin) was written in 1919. Your orchestra’s exempt status today hinges on a definition of “educational” written in 1919! And the words in that 1919 C.B. come closer to expressing our ineffable “unique something” we’re struggling with today than any current dictionary definition I’m aware of:

    “’Educational’ is not used in its meaning of instruction by school, college, or university, which is a narrower or more limited meaning of the word, but in its broader signification as the act of developing and cultivating the various physical, intellectual and moral faculties toward the improvement of the body, mind, and the heart. That the instruction in music given by a musical association is conveyed in such a manner as to be pleasurable does not negate the fact that such instruction is educational.”

    Nearly a century ago, some unnamed bureaucrat “got it” & society agreed. The question I’m raising now is, given our current culture and the economic, social and political forces shaping it, can we keep it? All it would take to bring the whole house down would be an “update” to that 1919 C.B., possibly with some grandfathering language to make the transition easier for those who 501(c)(3) will no longer cover. Of course this still assumes there is no other relevant case law that would make a simple IRS update more dificult. But remember (as DBR also noted to me) the term could be redefined or eliminated legislatively – not an impossible scenario in the present political climate.

  7. (5)

    One final thing from what DBR pointed out to me: “The IRS collects income tax not sales tax so they have no ability to soak orchestras which are not profitable enough to pay taxes.”

    I have more than a little quibble with this. It’s undeniable that nearly any orchestra in the U.S. wouldn’t be worth the attention of a tax collector, even if the orchestra suddenly found itself without its 501(c)(3) cover – how do you tax an entity that always seems to end up either in the hole or on the edge of one. But that’s not where the potentially significant taxable money is hiding. Eliminating the non-profit exemption takes away the exemption from the orchestra of course, but it also takes the deduction away from the donor who will now very likely go looking for another charity.

    I don’t know what the national totals are, but I believe the numbers for donations to the arts are in the billions, and givig on the whole is on the rise – enough to make any “fiscal conservative” drool. I’ve read that arts organizations generally need about 2/5 of their income from donations, and we’ve all heard that donations are down already anyway due mostly to the economy.

    To end on a small spark of hope for those wishing to keep the current non-profit system chugging along, if push comes to shove about amending the tax code in the near future, probably one of the best defenses would be to point out once again the economic case many have tried to make for the arts – that a vibrant artistic culture creates jobs in other areas, so taking away non-profit status for the arts would be killing the goose that lays golden eggs for society at large. I’m not sure the Tea Party or Grover Norquist’s fraternity would listen, but it would be worth a try.

    My own preferences go in other directions – searching for some genuinely new ideas. The only way to find those ideas is to begin with this one assumption:

    Your

  8. Sorry, the last comment was cut off. My fault. It should end:

    “Your orchestra just lost its 501(c)(3) status. Now what do you do?”

  9. [...] that outreach is everything puts a precarious trigger on institutional finances, and this is where the last post in this series may prove prophetic for future generations of musicians, in the event that the Federal Government [...]

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