Prof. Jane C. Ginsburg, Columbia University School of Law
August 13, 2013

It’s the summer opera festival season, and I’m writing this column from the Glimmerglass Festival (the other major attraction of Cooperstown, N.Y.), so I thought a contribution on opera and copyright would be fun and topical.  It turns out that operas set the stage for the articulation of important principles in copyright law in 18th- and 19th-century Britain.  Not surprisingly, given the easy itinerancy of music and musicians, many of the disputes concerned international copyright issues or at least provided an international ambiance.

An early controversy1 concerns an aria by the Anglo-Italian Stephen Storace, written for his sister Nancy (who was Mozart’s first Susanna in The Marriage of Figaro in Vienna in 1786) as a showpiece to interpolate into a 1787 London performance of Giovanni Paisiello’s opera Il Re Teodoro in Venezia.  (Paisiello’s work is little known today, apart from a set of Beethoven piano variations, WoO 70, based on the aria “Nel Cor Piu’ Non Mi Sento,” but Paisiello was a prolific opera composer who lived to see his most successful work, The Barber of Seville, eclipsed – and parodied – by Rossini.)  Within days of the performance, Longman (a leading publisher who figured in many British copyright cases) published the aria, without Storace’s authorization.  Storace sought redress through the courts and in the market.  He reset the aria in English and included it in a 1788 opera called The Doctor and the Apothecary.  The aria, “How Mistaken Is the Lover,” remains in the repertory; you can listen to it, performed by soprano Patrice Michaels, here.

Storace ultimately prevailed in court as well.  The decision, Storace v. Longman (1788) is unreported, but is referred to in Clementi v. Golding (28 Feb. 1809) 2 Camp 25, 170 ER 1069, (12 May 1809) 11 East 244, 103 ER 998, which also involved the unauthorized publication of an operatic aria (on which more, below).  Storace’s case appears not to have presented an international copyright issue because Storace primarily resided in England, and was, by his mother, an Englishman, and the aria was first published in England.  Rather, the defendant objected that Storace lacked standing because he did not own the copyright.  According to one report of Clementi v. Golding, the defendant’s counsel urged that Storace’s “song was composed to be sung by her [Nancy Storace] at the Italian Opera; and that all compositions so performed were the property of the house, not of the composer.”  In modern terms, the defendant argued that the aria was a work made for hire, whose copyright vested in the commissioning party, rather than in the creator.  Happily for Storace, “Lord Kenyon said, that this defence could not be supported; that the statute vests the property in the author; and that no such private regulation [the custom and practice of the Italian Opera house] could interfere with the public right.”  The decision thus struck an at least momentary blow for authors, by emphasizing that the first owner of copyright is the creator of the work.

Clementi v. Golding, the case that recounts the Storace affair, is an important landmark in musical copyright because the court of King’s Bench held that the unauthorized printing of a single song (“Heigh Ho!”) from a complete opera (Two Faces Under a Hood by William Schield) infringed the copyright in the song as an independent work.  In this respect, Clementi went further than Storace and Bach v. Longman (1777) 2 Cowp. 623, another signal music copyright ruling, albeit not one involving an opera.  There, Johann Christian Bach (youngest surviving son of Johann Sebastian), a German resident in England, complained of the unauthorized publication of his sonatas for keyboard.  Defendants objected that the Statute of Anne covered books, not musical compositions, but Lord Mansfield creatively applied the term “books and other writings” in the preamble of the Statute of Anne to interpret the statutory category of “any book” to cover musical scores.2  Storace concerned the sheet music for a single aria, but the aria was initially a stand-alone work, and in any event, the defendants did not urge that a single sheet could not be a “book” within the meaning of the statute.  Clementi resolved the issue of whether distinct components of a larger musical work, when published separately, could be protectable works in their own right.

Excerpts from operas returned to the courts in d’Almaine v. Boosey (1835) 160 E.R. 117, involving melodies from the 1834 opera Lestocq, by Daniel François Auber, recomposed as dance music by Philipe Musard and published by Boosey without the authorization of the British publisher to whom Auber had assigned his rights for Britain.  The case presented issues of international copyright and of copyright scope.  First, did Auber, as a French composer resident in France, have any rights to assign for Britain?  Second, if the opera did enjoy a British copyright, did the right extend to chamber music adaptations of the score?

Taking the second question first, while copyright today clearly extends to “derivative works” based on preexisting creations – indeed the 1976 U.S. Copyright Act explicitly includes “a musical arrangement” within the definition of “derivative work” – at the time of d’Almaine v. Boosey the prevailing doctrine of “fair abridgement” permitted second-comers to update, correct, summarize, or partially copy copyrighted works.  In the 1740 decision in Gyles v. Wilcox, concerning the alleged copying of a law book, Lord Chancellor Hardwicke declared that a “fair abridgement” falls outside the act in that a “real and fair abridgement … may with great propriety be called a new book, because … the invention, learning, and judgment of the author is shewn in them.”3  If new creativity removed a work based on a prior creation from the first copyright owner’s zone of exclusivity, then, the publisher of the musical arrangement argued, a reworking of operatic arias into dance music could not infringe.  In d’Almaine, the Court of Exchequer rejected that contention.  There is an understandable economic impetus behind the court’s extension of the opera’s copyright to encompass re-orchestrations of selections into dance tunes.  By 1835, a significant middle class with the means to purchase and perform music at home had emerged, thus creating a market for derivative versions of musical works.  (The same factors may have contributed to the 1809 ruling in Clementi v. Golding that a single sheet of music was a “book.”)  But d’Almaine’s rationale confronts head-on the conflicting claims of the second author – and overcomes them by denigrating the quality of the adapter’s authorship:

Now the most unlettered in music can distinguish one song from another, and the mere adaptation of the aria, either by changing it to a dance or by transferring it from one instrument to another, does not, even to common apprehensions, alter the original subject.  The ear tells you that it is the same.  The original aria requires the aid of genius for its construction, but a mere mechanic in music can make the adaptation or accompaniment.  Substantially the piracy is where the appropriated music, though adapted to a different purpose from that of the original, may still be recognised by the ear.  The adding variations makes no difference in the principle.4

If the second author is a genius-free mechanic, in other words, if he not really an author, then he can be an infringer.5  Moreover, the essence of the work is its melody, and, anticipating by one hundred years Learned Hand’s epigram “no plagiarist can excuse the wrong by showing how much of his work he did not pirate,”6 the court recognized that “the adding variations makes no difference in the principle.”

With regard to the foreign composer’s British rights, at the time no treaty entitled French authors to protection in Britain.  But the British publisher argued that the work was first published in Britain by a British resident before any French publication (though the parties disputed this), and therefore should not fall under the statute’s exclusion of foreign-published works.  The court agreed that first publication in Britain was all the statute required:

The point whether the copyright of a foreigner is protected at all in this country does not arise in the present case, because the plaintiff [publisher] d’Almaine is not a foreigner.  He could acquire the copyright of a publication as well from a foreigner as an Englishman.  If he is the owner of the work it makes no difference whether he composed it himself or bought it from a foreigner.7

The court thus effectively ratified the practice of bringing non-resident foreign-authored works within the ambit of the British law by arranging for first publication in Britain.  Manipulation of the place of first publication so as to achieve some degree of international copyright protection proved an essential tactic not only for composers, but also for book authors, particularly American authors, who otherwise were prey to piracy in a major English-language market – as were British authors in the United States (as Dickens and other British authors frequently complained).

But the House of Lords nullified the effect of the practice in Jeffreys v. Boosey (1854) 4 HLC 815, involving yet another operatic aria, “Come Per Me Sereno,” from Bellini’s La Sonambula.  Bellini had assigned his rights to the Italian music publisher Ricordi, who in turn assigned United Kingdom publication rights to Boosey.  The opera was first published in London in 1831, before its publication anywhere else.  In 1844 Boosey renewed the copyright in the registry of the Stationers Company.  Under d’Almaine, Boosey would have taken all the steps needed to secure and maintain the rights for the United Kingdom (and its colonies).  The defendant publisher Jeffreys, however, contended that Ricordi had no rights to assign for the United Kingdom because the only way to acquire a copyright for Great Britain is to be a British subject or resident.  Under d’Almaine it sufficed that the publisher be British, but Jeffreys v. Boosey looked to the nationality (or residence) of the creator of the work.  If Bellini, as a non-resident composer, could not hold a British copyright, then neither could his Italian or British assignees. By interpreting the statute to require British nationality or residence, the House of Lords may have been retaliating against the restriction of U.S. copyright to U.S. authors, and thereby hoped to goad the United States into protecting British authors.8  But it would take nearly another 50 years before the United States would pass an act extending copyright to foreign authors.9