- For the details of Bach v. Longman and Lukey see John Small, J. C. Bach Goes to Law’, The Musical Times, 126 (1985), 526–9. No publication of a viola da gamba sonata by Bach has survived, and until recently there were no sonatas for the instrument attributed to him. However, a manuscript collection that came to light in 1992 (lot 463 at Sotheby's London sale of books, manuscripts and music, 28–29 May 1992) contains three viola da gamba sonatas by Bach. It is possible that the sonata at issue in Bach v. Longman and Lukey was one of these three.
- Sir John Hawkins, A General History of the Science and Practice of Music (London, 1776); modern edition ed. Charles Cudworth (New York, 1963), 850. We are grateful to David Hunter for informing us about Hawkins's discussion.
- Enrico Careri, Francesco Geminiani (1687–1762) (Oxford, 1993), 25, links this episode with Geminiani's decision in 1732 to engrave and publish his own works.
- Throughout this article, ‘bookseller’ is used in its eighteenth-century sense to denote one who engages in the various activities associated with the publishing industry. The closest modern equivalent to the term would be ‘publisher’.
- This lawsuit was also discovered by Curtis Price and Robert Hume.
- On copyright in eighteenth-century England see Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, Mass., 1993); David Saunders, Authorship and Copyright (London, 1992); Lyman Ray Patterson, Copyright in Historical Perspective (Nashville, 1968); Arthur Simons Collins, Authorship in the Days of Johnson (London, 1927); and Robert Maugham, A Treatise on the Laws of Literary Property (London, 1828). The following overview of English copyright law is indebted to Patterson and Collins. On musical copyright in particular see David Hunter, ‘Musical Copyright in Britain to 1800’, Music and Letters, 67 (1986), 269–82.
- Patterson, Copyright in Historical Perspective, 71–3, explains this as a negative covenant; ‘a contract not to object to the publication of the work, rather than a contract granting a right to publish it’.
- On this point see ibid., 158–60. -
- Anne, C. 19, also known as the Act of Anne. For the events leading to the act see John Feather, ‘The Book Trade in Politics: The Making of the Copyright Act of 1710’, Publishing History, 8 (1980), 19–44; and Harry Ransom, The First Copyright Statute (Austin, Texas, 1956).
- Such a view of music was held by Charles Burney, who considered that ‘music is an innocent luxury, unnecessary, indeed, to our existence, but a great improvement and gratification of the sense of hearing’. Charles Burney, /(General History of Music from the Earliest Ages to the Present, i (London, 1776); modern edition ed. Frank Mercer (New York, 1935), 21.
- Bach v. Longman and Lukey, 2 Cowp. 624. Bach had unsuccessfully petitioned the House of Commons on this very question. See Small, ‘J. C. Bach Goes to Law’, 528. Throughout this article, British cases are cited to the set of English Reports.
- According to David Hunter, at least 40 royal privileges were granted to composers during the eighteenth century (personal communication). In ‘Musical Copyright in Britain to 1800’, 277, note 51, he lists 16 privileges granted between 1710 and 1770. He gives three more (courtesy of H. Watton) in a letter published in Music and Letters, 68 (1987), 210.
- Millar v. Taylor, 4 Burr. 2303.
- Stationers' Company v. Carnan, 2 Black. W. 1004.
- 4 Burr. 2408.
- Small, ‘J. C. Bach Goes to Law’, 527.
- For a detailed discussion of the legal aspects of the book trade see John Feather, ‘The English Book Trade and the Law: 1695–1799’, Publishing History, 12 (1982), 51–75.
- On the petition to the House of Commons and the bills of 1735 and 1737 sec Collins, Authorship in the Days of Johnson, 68–78; John Feather, ‘The Publishers and the Pirates: British Copyright Law in Theory and Practice, 1710–1775’, Publishing History, 22 (1987), 5–32; and Rose, Authors and Owners, 49–66.
- Applying to a court of equity was more expedient than initiating an action at law for damages, in which case the piracy could continue until the final decision was rendered. Obtaining an injunction was also the preferred method of stopping piracies of publications that fell within the purview of the Copyright Act. -The penalties imposed by the act were so meagre that damages were rarely thought to be worth pursuing in a court of law. See Maugham, A Treatise on the Laws of Literary Property, 168–9; Saunders, Authorship and Copyright, 59; and the testimony of the bookseller William Johnston in Bach v. Longman and Lukey in Journal of the House of Commons, 14 Geo. III (1774), 590.
- See, for example, the cases of Osborne and Tonson, discussed in Collins, Authorship in the Days of Johnson, 82, 84.
- Gwyn Walters, ‘The Booksellers in 1759 and 1774: The Battle for Literary Property’, The Library, 5th series, 29 (1974), 287–311.
- Hunter, ‘Musical Copyright in Britain to 1800’, 270.
- Quoted in Roger Lonsdale, Dr. Charles Burney (Oxford, 1965), 18; and in Memoirs of Dr. Charles Burney: 1726–1769, ed. Slava Klima, Garry Bowers and Kerry S. Grant (Lincoln, Nebr., and London, 1988), 103. We are grateful to John Parkinson for bringing this passage to our attention.
- The text of Artie's privilege is taken from Vocal Melody: An Entire New Collection of English Songs and a Cantata, i (London: John Walsh, 1749).
- The London Daily Post, and General Advertiser, 9 March 1741. Quoted in John A. Parkinson, ‘Pirates and Publishers’, Performing Right, 58 (1972), 20–2.
- Rose, Authors and Owners, 45, 56–66.
- On Pope's relations with the London book trade see David Foxon, Pope and the Early Eighteenth-Century Book Trade, rev. and ed. James McLaverty (Oxford, 1991).
- Rose, Authors and Owners, 59, lists five copyright suits brought by authors up to 1741.
- PRO CI 1/2260/7, consisting of Arne's bill and Roberts's and Johnson's answer. The Engraving Copyright Act of 1735 (8 Geo. II. c. 13) protected only those who engraved their own works or designs; it also required that each print include a dated publication line. For a discussion of this act see Hunter, ‘Musical Copyright in Britain to 1800’, 278; and ‘Copyright Protection for Engravings and Maps in Eighteenth-Century Britain’, The Library, 6th series, 9 (1987), 128–47.
- )Arne gives the years of publication for his editions of the opera Rosamond (1735), the music in The Masque of Comus (1737) and the incidental music to As You Like It (1741). No edition of Rosamond, first performed at Lincoln's Inn Fields on 7 March 1733, survives, and only four songs from the opera appeared in printed collections. By the time of the lawsuit, three songs had already been included in The British Musical Miscellany (1734): ‘Was ever nymph like Rosamond?’, ‘Beneath some hoary mountain’ and ‘In that dear hope’. The earliest known edition of the music in Comus (first performed at Drury Lane on 4 March 1738) is the full score published in 1740. See John A. Parkinson, An Index to the Vocal Works of Thomas Augustine Arne and Michael Arne, Detroit Studies in Music Bibliography, 21 (Detroit, 1972).
- Filing a bill at Chancery was a sure way to determine the extent of one's losses resulting from unauthorized publications, as the defendants were required to make a full disclosure of their publishing activities. According to the testimony of William Johnston in Bach v. Longman and Lukey, ‘by filing a Bill in Chancery, the Booksellers always obtained an Injunction, and by the Answer given the Bookseller could ascertain the Damage he had sustained, as the Defendants were obliged to declare the Number they had printed’.
- Indeed, it is striking that Arne mentions the Copyright Act to bolster his case. Statute law was by no means always invoked in copyright disputes, musical or otherwise: Chancery judges usually based their decisions in such cases on the inviolability of property. See Feather, ‘The Publishers and the Pirates’, 7. Arne may have taken his cue from Pope v. Curll.
- For an overview of English song during this period see H. Diack Johnstone, ‘English Solo Song, c. 1710–1760’, Proceedings of the Royal Musical Association, 95 (1968–9), 67–80; David Hunter, ‘English Opera and Song Books 1703–1726: Their Contents, Publishing, Printing, and Bibliographical Description’ (Ph.D. dissertation, University of Illinois at Urbana-Champaign, 1989); and Hunter, ‘The Printing of Opera and Song Books in England, 1703–1726’, Notes, 46 (1989), 328–51. On English cantatas and art songs see Richard Goodall, Eighteenth-Century English Secular Cantatas (New York and London, 1989).
- 1747 is the publication date of the second edition of Michael Christian Festing's English Cantata call'd Sylvia, The Mo[r]ning fresh, and 4 other songs, advertised last in the second volume. Also in the list of Simpson's publications are Lewis Christian Austin Granom's op. 3 flute duets (c. 1747). Festing's Ode upon ye Return of his Royal Highness ye Duke of Cumberland from Scotland' (after April 1746), and both volumes of Simpson's song collection Thesaurus musicus (c. 1742–5). According to Frank Kidson, ‘Some Illustrated Music-Books of the Seventeenth and Eighteenth Centuries: English’, The Musical Antiquary, 3 (1912), 195–208, the second volume of Calliope contains several songs relating to the Jacobite rebellion of 1745 and others from the Gentleman's Magazine of 1745 and 1746.
- See Kidson, ‘Some Illustrated Music Books’, 200–8, for a discussion of the Musical Entertainer and other eighteenth-century collections modelled upon it.
- The London Daily Post, and General Advertiser, 9 June 1738. An advertisement for vol. ii, no. 4 run the following month attacks Cole's British Melody even more forcefully. See Kidson, ‘Some Illustrated-Music-Books’, 201–2.
- The London Daily Post, and General Advertiser, 19 January 1739.
- For this point we are grateful to Curtis Price.
- The first volume of Calliope had contained two additional Arne songs, ‘Love relaps'd’ and ‘How happy a state’ from The King and the Miller of Mansfield. They were not at issue in the dispute, presumably because both had appeared in other printed collections (including The Musical Entertainer). See Parkinson, An Index.
- Roberts is probably referring not to the elder Daniel Wright, who died or retired about 1735 (well before Comus), but to the younger, who was active from 1730 to about 1740. On the basis of the claim, made by both defendants, that Wright is ‘deceased’, his date of death must fall within the years 1738–41. Johnson may have founded his business on that of the Wrights. See Frank Kidson, William C. Smith and Peter Ward Jones, ‘Wright, Daniel’, The New Grove Dictionary of Music and Musicians (London, 1980), xx, 540–1.
- Although no records of Ame's publications appear in the Stationers' Company's registers, Roberts and Johnson are less convincing on this point since, strictly speaking, registration was not necessary to establish copyright. As the courts interpreted it, the Copyright Act's registration clause pertained only to proof of copyright. From the passage of the act booksellers had openly and successfully evaded the deposit requirement. See Feather, ‘The Publishers and the Pirates’, 5–6.
- Most privileges were granted to protect newly composed ‘vocal and instrumental music’ before first publication. We are grateful to David Hunter for confirming this point.
- No mention of the case is found under the following PRO class codcs: C24 (Town Depositions), C31 (Affidavits), C33 (Entry Book of Decrees and Orders), C38 (Reports and Certificates) and C42 (Awards and Agreements). According to John Small (J. C. Bach Goes to Law’, 528), Bach v. Longman and Lukey was transferred from Chancery (a court of equity) to King's Bench (a court of common law) because Chancery did not have jurisdiction to interpret the Copyright Act. Yet a chancellor had done precisely that in ruling, in Pope v. Curll, that letters were protected by the statute. Throughout the eighteenth century, uncertainties as to the boundaries of jurisidiction between equity and common law made the legal system both slow and cosily.
- Parkinson. ‘Pirates and Publishers’, 20.
- The London Daily Post, and General Advertiser, 24 May 1746. Quoted in Parkinson, ‘Pirates and Publishers’, 20.
- The Public Advertiser, 27 January 1761. We are grateful to John Parkinson for bringing this advertisement to our attention.
- PRO C12/2082/42, consisting of Pyle's two bills of complaint and Robert Falkener's answer. In his will, dated 2 August 1758. Walsh had named Pyle and Sir Francis Gosling, a banker and alderman of the City of London, executors of his estate. On the wills of both Walshes see William C. Smith, ‘John Walsh and his Successors’, The Library, 5th series, 3 (1949), 291–5.
- This amended bill also cites a few additional works by Handel that are not present in the initial bill.
- Pyle seems to have been accurate in his description of Falkener's publishing activities, as most of the works listed in Table 3 survive in editions by Falkener dating from about 1770. Not mentioned in the dispute are three other Handel works published by Falkener which also survive: ‘Oh sleep, why dost thou leave me?’ (Semele), ‘Cease thy anguish’ (Athalia) and the coronation anthem My heart is inditing, HWV 261. It is possible that these editions appeared after the bills were drafted, or that Pyle was unaware of them. For listings of Falkener's Handel editions sec Händel Handbuch: Thematisch-systematisches Verzeichnis, ed. Bernd Baselt, ii (Kassel, 1984).
- For the pasticcio Love in a Village, including 19 songs by Arne, the agreement was made two days before the first performance; for Judas Maccabaeus, Alexander Balus and Joshua the agreements were made on the day of the first performance; and for The Triumph of Time and Truth the agreement was made on the day following the first performance. The relatively late date of the agreement for Acis and Galatea may reflect a renewal or renegotiation of an earlier agreement.
- The leaf, the original of which has not been traced, also lists the amounts and dates of payment for 13 Handel operas and his opp. 4 and 5; the usual amount paid to the composer for each work during the period 1721–38 was £26 5s. Sec Otto Erich Deutsch, Handel: A Documentary Biography (London, 1955), 468.
- The Water Piece, a five-movement suite for trumpet and strings, is of questionable authenticity. In addition to a manuscript copy in the British Library, the earliest sources for the work include editions by Daniel Wright (c. 1733; lost) and John Johnson (c. 1740/45; printed from Wright's plates). A later edition by Charles and Samuel Thompson (c.1755; three movements arranged for harpsichord or piano) was reprinted by Falkener and others. The ‘overture’ to the work is the only movement common to both the Wright and Thompson editions. Händel-Handbuch, ed. Baselt, iii, 109–10; and Hallische Händel-Ausgabe im Auftrage der Georg Friedrich Händel-Gesellschaft, ed. Hans Ferdinand Redlich, iv/13 (Kassel, 1962), x.
- All five depositions are found under PRO C24/1798.
- Although the interrogatories are vaguely worded, referring only to ‘several paperwritings now produced’, it is virtually certain that the ‘paperwritings’ were in fact the Walsh copyright agreements.
- Handel's signature on the agreement for The Triumph of Time and Truth would have been shaky owing to his total blindness. Smith, who acted as Handel's amanuensis during the composer's later years and may have been responsible for some of the oratorio additions of 1753–9, would have been uniquely qualified to identify Handel's latest handwriting. Aside from signatures on a letter and on the codicils to his will, there are no extant examples of Handel's writing after 1752. See Anthony Hicks, ‘The Late Additions to Handel's Oratorios and the Role of the Younger Smith’, Music in Eighteenth-Century England: Essays in Memory of Charles Cudworth, ed. Christopher Hogwood and Richard Luckett (Cambridge, 1983), 147–69.
- In two affidavits, the first given jointly with Pyle on 4 June 1771, and the second given alone on 8 June, Birchall had already revealed his involvement in less detail (PRO C31/181/461 and C31/181/467). He appeared again at Chancery with Pyle on 15 July but made no statement.
- As Birchall's age is given in the deposition as ‘22 years or thereabouts’, his date of birth can now be revised from c.1760 to 1750. See Frank Kidson, William C. Smith and Peter Ward Jones, ‘Birchall, Robert’, The New Grove Dictionary, ii, 727.
- The privilege, dated 31 October 1739, states that Handel had composed certain vocal and instrumental works ‘and hath authorised and appointed John Walsh… to print and publish the same’. Like statutory copyright, the rights which a privilege afforded were generally transferable to an assignee, an executor or an heir. Handel had been granted a privilege in his own name on 14 June 1720; it appeared in a number of Walsh editions, including those of Floridante (1722), Ottone (1723) and Flavio (1723). Terence Best, ‘Handel's Harpsichord Music: A Checklist’, Music in Eighteenth-Century England, ed. Hogwood and Luckett, 171–87, suggests that Handel's privilege was taken out in response to Walsh's unauthorized edition of the Pieces à un & deux clavecins (1719). The texts of the two privileges are reproduced in Deutsch, Handel, 105–6, 488–9.
- An excerpt from the privilege appears in Deutsch, Handel, 844.
- PRO C31/181/472.
- PRO C31/181/471.
- PRO C31/181/469 and C31/181/470.
- Falkener claimed that the privilege violated the Statute of Monopolies of 1624 (21 Jac. 1, c. 3). As this statute did not apply to royal privileges issued for printing, Falkener's claim is unconvincing.
- PRO C33/440, f. 438.
- On the role of natural law in Millar v. Taylor sec David Lieberman, The Province of Legislation Determined (Cambridge, 1989), 95–8. The voting of the 12 common-law judges in Donaldson v. Beckett, so often discussed in histories of copyright, is reinterpreted in Rose, Authors and Owners, 97–112, 154–8; and Howard B. Abrams, ‘The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright’, Wayne Law Review, 29 (1983), 119–91.
- Rose, Authors and Owners, 101. Apsley was in fact voting to overturn his own injunction against Donaldson, which he had issued as a matter of course prior to a final determination of the copyright question by the House. See The Cases of the Appellants and Respondents in the Cause of Literary Property, Before the House of Lords (London, 1774), 55; and The Pleadings of the Counsel Before the House of Lords, in the Great Cause Concerning Literary Property (London, n.d.), 35; both reprinted in The Literary Property Debate: Six Tracts, 1764–1774, ed. Stephen Parks (New York, 1975).
- PRO C33/442, ff. 309v-311.
- One common-law judge, Lord Mansfield, abstained, though he would surely have favoured the common-law right had he voted.
- Rose, Authors and Owners, 104–7.
- It may be significant that Falkener nowhere questions Handel's authorship of the oratorios, as he might have by pointing out that the texts were derived from such authors as Milton, Congreve, Ovid and Dryden.
- The Rise of Musical Classics in Eighteenth-Century England: A Study in Canon, Ritual and Ideology (Oxford, 1992), 168.
- Ibid., 248–51.
- See Howard E. Smither, A History of the Oratorio, iii: The Oratorio in the Classical Era (Chapel Hill, 1987), 202–12; and Winton Dean, Handel's Dramatic Oratorios and Masques (London, 1959), 640.
- Smither, A History of the Oratorio, iii, 214–20; and Weber, The Rise of Musical Classics, 124–30.
- As Hunter, ‘The Printing of Opera and Song Books in England’, 333–4, has noted, the use of engraved plates ‘transferred ownership of the printing medium from the printer to the publisher’. Unlike letterpress-printed books, in which each book was newly set, a music bookseller who employed engraved plates could maintain a ‘backlist’ of works that could easily be reprinted. It could be argued, of course, that in England the works of Purcell and Gorelli also remained profitable long after first publication. But in the case of these composers, no single bookseller claimed exclusive property rights to their works.
- Rose, Authors and Owners, 67.
- See Walters, ‘The Booksellers in 1759 and 1774’, 303; and Collins, Authorship in the Days of Johnson, chapter 2. For a list of eighteenth-century pamphlets that discuss literary property see Harry Huntt Ransom, ‘The Theory of Literary Property: 1760–1775’ (Ph.D. dissertation, Yale University, 1938), 306–8; and Rose. Authors and Owners, 159–64.
- Rose, Authors and Oumers, 91.
Journal of the Royal Musical Association
Volume 120, 1995 - Issue 1