Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: uk_1777

Commentary on Bach v. Longman (1777)

Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on Bach v. Longman (1777)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Music Publishing in the Early Eighteenth Century

4. Booksellers and Composers in Court

5. The Impact of Bach v. Longman (1777)

6. References

1. Full title

Bach v. Longman (1777) 2 Cowp. 623

2. Abstract

A case, initiated by two composers, Johann Christian Bach and Karl Friedrich Abel, concerning whether or not printed music fell within the protection of the Statute of Anne 1710 (uk_1710). Lord Mansfield holds that published music is protected as ‘writing' within the terms of the legislation.

The commentary explores attitudes to the protection of music throughout the eighteenth century on the part of publishers, composers and musicians, and in particular the use of the printing privilege by some composers to secure the right to publish their work, and the efforts of the music publishers to secure legislative protection in the mid-eighteenth century.

3. Music Publishing in the Early Eighteenth Century

At the start of the eighteenth century, it appears that little was to be gained by the music publishers in joining with the rest of the book trade in lobbying for statutory protection for their published material. There are perhaps a number of reasons as to why copyright was not considered necessary (or desirable) for print music. In the first place the demands of the marketplace exerted different dictates upon the book publishing trade. For books, the sale of ‘classic' works, an established canon of sixteenth and seventeenth century texts, proved highly profitable to the trade, and so worthy of protection. By contrast (psalm books aside) the public's appetite for and taste in music was a much more fickle creature. With the start of the eighteenth century came a metropolitan love affair with Italian opera, but one that was subsequently supplanted by a penchant for parodies of the operatic form,[1] the Handelian Oratorio, and so on. In this regard, maintaining a ‘back catalogue' of printed music was much less relevant to music publishers, than maintaining control over the existing literary canon was to the booksellers.[2]

More significant though is the fact that while the London booksellers actively lobbied Parliament for a statutory protection for their trade,[3] as Carroll and others have observed, "music publishers appear to have been hostile to music copyright" at this time.[4] They either presumed that the Statute of Anne did not apply to music in print,[5] or simply ignored the legislation entirely. The music publisher John Walsh (1665/66-1736) provides one such example in this regard. Walsh (who would later establish a very successful working relationship with Georg Frideric Handel (1685-1759)) began publishing music in 1695, the year in which the Licensing Act 1662 lapsed;[6] he very quickly managed to establish a business which has since been described as "one of the greatest in music-publishing history".[7] His dominance of the market in the early part of the eighteenth century relied, not upon copyright, but rather upon the fact that he routinely produced quick and cheap reprints of material first printed by other music publishers.[8] For the most successful music publisher of the day, copyright was not simply irrelevant - rather, it was perceived to be a very real obstacle in establishing an otherwise financially lucrative publishing career.

But what of the composer and the musician? As we have seen elsewhere, other interested individuals and sectors of the eighteenth century ‘culture industry' (such as William Hogarth (1697-1764)) and other mid-century engravers)[9] took active steps to secure copyright protection for the works they created. But why not composers?, or at least, why did the final, formal, legal recognition of copyright protected printed music, in the guise of Bach v. Longman (1777) (a case instigated on behalf of two composers),[10] come so late in the century, over 65 years after the coming into force of the Statute of Anne 1710?

There are perhaps a number of explanations for this. In the first place, when composers sold their work to music publishers it tended to be for one-off payments of a rather mediocre kind.[11] However, for the composer, that in itself was not necessarily problematic. Unlike the situation of the author, the composer's lot was much less dependent upon publication in print. Without resorting to print publication, working musicians and composers could otherwise rely upon the patronage of the well to do, court or church appointments, public and private performances, fees for conducting, and so on, to provide and supplement their income.[12]

Apart from this, however, when composers did seek legal protection for their work, it tended to be by way of individual petition for a printing privilege. Of all the successful working composers in eighteenth century England Handel proved the most adept at securing protection for his music by way of the individual printing privilege. Handel came to London in 1710, following the notable success of his fifth opera, Agrippina, in Venice the year before, and began to work at the Queen's Theatre which was then under the management of Aaron Hill (1685-1750) and Johann Heidegger (1666-1749).[13] Ten years later, the first of the Hanoverian monarchs, George I (1660-1727), granted Handel the exclusive right to print and publish his own music for fourteen years.[14] Handel renewed the privilege in 1739, but now, having failed in his own attempts at self-publication,[15] he did so in collaboration with John Walsh, Jr. (1709-1766). Walsh, Jr. had inherited his father's music publishing empire upon the death of Walsh, Sr., in March 1736.[16] In 1760, in the year following the composer's death, Walsh, Jr., renewed the privilege once more, again for fourteen years, but now for the publication of Six Organ Concertos, Opus 7, and for music "never before collected or Published together".[17] Aside from these three privileges concerning Handel's music, David Hunter has established that thirteen other such grants were made between 1710 and 1770 (some to composers, some to publishers).[18] Sixteen grants in total may seem a relatively insubstantial number, but when compared with the fact that, throughout the entirety of the seventeenth century, only two such individual grants were made,[19] the significance of the individual music printing privilege within eighteenth century Britain begins to assume greater import. It was certainly understood to be a valuable and successful means by which to secure the protection of one's published music.

4. Booksellers and Composers in Court

And yet, the availability of such printing privileges was no guarantee against the unauthorised publication of a composer's work.[20] This may well provide one of the reasons as to why, in 1735, when the booksellers were once again lobbying Parliament to amend and extend the provisions of the Statute of Anne, it seems they had been joined by the music publishers. When the Bill for the Better Encouragement of Learning was presented by the Commons to the House of Lords in May 1735, clause 12 stated that "this Act shall extend, and be construed and taken to extend to the Author or Authors of any Book or Books of Musick, or any Composition in Musick whatsoever, whether printed or engraved".[21]

Unfortunately, there is little to be gleaned from the record of the original petition in the Journal of the House of Commons,[22] the Committee Report concerning that petition,[23] or in any of the supplementary literature that appeared relating to this renewed attempt to secure new protections,[24] that might explain why it was that the music sellers had decided to throw in their lot with the booksellers. Perhaps it was simply the case that major publishing houses like that of Walsh now perceived a value in having statutory protection for print music.[25]

Having failed in their attempt to secure a new act in 1735, the booksellers once again petitioned the House of Commons for protection, and on 11 February 1737 leave was given to prepare and bring in a another Bill for the Better Encouragement of Learning.[26] Again, a provision concerning books of music was included within the substance of the Bill,[27] but again the Bill failed.[28] Following this, apart from securing a short Act concerning the importation from abroad of books first published in England,[29] the London book trade decided that lobbying for parliamentary protection was no longer necessarily the best legal avenue with which to bolster their commercial interests.[30]

Instead, with the case of Midwinter v. Hamilton (1743-48),[31] the booksellers turned to the courts of common law. This action signaled the beginning of a thirty-year period, often referred to as ‘the battle of the booksellers',[32] in which the London booksellers locked horns with a newly emerging Scottish book trade over the right to reprint works falling outside the protection of the 1710 Act. The Scottish booksellers argued that no copyright existed in an author's work at common law. By contrast, the southern monopolists proclaimed that the Statute of Anne did not create rights de novo, but rather served to supplement and support a pre-existing common law copyright. During this period both the arguments for and against the existence of the common law right were developed through a number of notable cases, including Millar v. Kincaid (1749-1751)[33] and Tonson v. Collins (1761, 1762),[34] and culminating in the two seminal decisions of Millar v. Taylor (1769)[35] and Donaldson v. Becket (1774).[36]

With this change in tack on the part of the booksellers, the music publishers clearly did not consider recourse to Westminster a viable option. Instead the music industry, like the book trade, turned to the courts. However, unlike the book trade, it was not the publishers who sought clarification about the status of print music within the copyright regime; rather, it was for individual composers and musicians themselves to pursue. Some composers, such as Francesco Geminiani (1687-1762),[37] and Thomas Arne (1710-1778),[38] initiated actions before the Court of Equity; however, it wasn't until Johann Christian Bach (1735-1782) and Karl Friedrich Abel (1723-1787) took a case to the Court of King's Bench that printed music was definitively declared to be protected under the Statute of Anne.[39]

Both Bach and Abel had previously received a grant from the Crown protecting their own published music, Bach in 1763 and Abel, three years earlier, in 1760,[40] and it was the imminent expiration of Abel's privilege in 1774 that no doubt prompted the two to take their case before the courts. They began their action in March 1773 but it was not until four years later that Lord Mansfield (1705-1793), without hearing the full arguments on the case, declared that "[t]he words of the Act of Parliament are very large: ‘books and other writings.' It is not confined to language or letters". Notice here Lord Mansfield's starting point: that the words of the Act are "very large" applying to both "books and other writings". In fact, the provisions of the legislation apply only to "any book or books";[41] it is the preamble which refers to the fact that "persons have of late frequently taken the liberty of printing, reprinting and publishing" the "books and other writings" of the authors or proprietors thereof.[42] Nevertheless, Lord Mansfield continued:

"Music is a science; it may be written; and the mode of conveying the ideas, is by signs and marks. A person may use the copy by playing it; but he has no right to rob the author of the profit, by multiplying copies and disposing of them to his own use. If the narrow interpretation contended for in the argument were to hold, it would equally apply to algebra, mathematics, arithmetic, hieroglyphics. All these are conveyed by signs and figures. There is no colour for saying that music is not within the Act."[43]

And so, musical scores, songs and sheets were to be considered as ‘books',[44] just as, by extension, composers were ‘authors'.

5. The impact of Bach v. Longman (1777)

Carroll, commenting upon the decision in Bach, draws a distinction in the manner in which it impacted upon both composers and music publishers. As to the former, he observes that "the availability of composer's copyright in England did not serve as a sufficient incentive to attract composers living in countries, such as Germany, that still did not recognize a right".[45] Within the world of the music publisher, however, the decision did have an immediate impact. Prior to Bach, no more than 43 books of music had been registered (in accordance with the requirements of s.2 of the Statute of Anne) in any one decade following the coming into force of the legislation. In the 1780s, 738 registrations were made, followed by 1828 in the 1790s, and 1291 in the 1800s.[46] In the words of Carroll: "[T]he consequences of Bach were far-reaching. By bringing published music within the sphere of copyright, the decision regularized the means for obtaining and enforcing rights, and it established that these rights uniformly would be limited to the statutory period rather than subject to the ad hoc duration of printing privileges".[47]

Yet there was another highly significant aspect to Bach which, while it attracted little attention at the time, would provide a focus for one of the central themes of copyright discourse and debate of the mid-nineteenth century. Both Bach and Abel were foreign composers plying their trade in Georgian England, and yet, at no point in the litigation did their status as non-nationals appear to jeopardise their chances of success before Lord Mansfield's court. Fifty years later, however, the question as to whether foreign authors and composers could or should receive any protection for their works became the issue which led to only the second House of Lords decision upon an aspect of British copyright law: Jeffreys v. Boosey (1854).[48]

6. References

Government papers and legislation

Statute of Anne, 1710, 8 Anne, c.19

Licensing Act, 1662, 13 & 14 Car.II, c.33

An Act for Prohibiting the Importation of Books reprinted abroad and first composed or written and printed in Great Britain, 1739, 12 Geo.II, c.36

Cases

Bach v. Longman (1777) 2 Cowp. 623

Midwinter v. Hamilton (1743-48)

Millar v. Kincaid (1751) British Library, 18^th century reel, 4065/03, 04

Tonson v. Collins (1761) 1 Black W 301

Tonson v. Collins (1762) 1 Black W 329.

Millar v. Taylor (1769) 4 Burr 2303

Donaldson v. Becket (1774) 4 Burr 2408

Jeffreys v. Boosey (1854) 4 HLC 815

Books and articles

Carroll, M., "The Struggle for Music Copyright", Florida Law Review, 57 (2005): 907-61

Hunter, D., "Music Copyright in Britain to 1800", Music & Letters, 67 (1986): 269-82 (273)

Parks, S., ed., The Literary Property Debate: Seven Tracts, 1747-1773, (London: Garland Publishing, 1974)

Patry, W.F., Patry on Copyrights, 7 vols. (Thomson West Publishing, 2006) 1: 136-37

Sanjek, R., American Popular Music and Its Business: The First Four Hundred Years, 3 vols. (New York and Oxford: Oxford University Press, 1988), 1: 206

Walters, G., "The Booksellers in 1759 and 1774: The Battle for Literary Property", Library, 5^th ser., 29 (1974): 287-311

[1] See: uk_1737a.

[2] Carroll puts it in this way: "Economically, music sellers cared less about legal protection than did booksellers because they made most of their income from selling contemporary works for which lead time was more important than exclusive rights for appropriating the value of new music"; M. Carroll, "The Struggle for Music Copyright", Florida Law Review, 57 (2005): 907-61 (931).

[3] See: uk_1710.

[4] Carroll, 930.

[5] Certainly this seems to have been the case in the 1730s given that, when the booksellers sought to secure new copyright legislation in both 1735 and 1737, provisions were included in both bills that sought to provide a specific protection for ‘books of music', as opposed to ordinary ‘books' otherwise protected under the Statute of Anne, 1710, 8 Anne, c.19.

[6] See: uk_1662.

[7] William C. Smith, A Bibliography of Musical Works Published by John Walsh 1695-1720, 2^nd ed. (London: Bibliographical Society, 1968), vi, cited in D. Hunter, "Music Copyright in Britain to 1800", Music & Letters, 67 (1986): 269-82 (273). Russell Sanjek writes that "[b]y 1720, John Walsh was the leading English music publisher, his printed catalogue of more than 600 contemporary editions and pirated publications rivaling [sic] that of his most illustrious predecessor, Playford, and dwarfing that of his competitors"; R. Sanjek, American Popular Music and Its Business: The First Four Hundred Years, 3 vols. (New York and Oxford: Oxford University Press, 1988), 1: 206.

[8] Carroll comments as follows: "Using techniques such as employing a set of agents who sent him the latest publications from the Netherlands as soon as they came off the press, Walsh quickly reproduced these and other unauthorized editions for sale in London at considerably lower prices before authorized publishers could offer their editions ... Walsh's financial success was due to a combination of good business judgment and the use of less savory tactics, such as misleading advertising, predatory pricing, and ‘legal manoeuvres' to thwart competition. The strategy bore financial success, as evidenced by the 30,000 value of his estate and the ongoing business taken up by his son who also profited, leaving an estate worth 40,000"; Carroll, 933.

[9] Hogarth and other of his contemporaries successfully lobbied for and secured copyright protection for ‘engravings' in 1735; see: uk_1735.

[10] Bach v. Longman (1777) 2 Cowp. 623; the two composers were Johann Christian Bach and Karl Friedrich Abel.

[11] Hunter gives the example of John Dowland's wife, "who received £20 from George Eastland for ownership of the manuscript and half the dedication reward of Dowland's Second Booke of Songs or Ayres"; ibid., 271. In this regard, Patry comments that "[t]he lot of composers who did not have a privilege was bleak. Indeed, in all of the debates over the term of copyright, the important point is lost that the length of copyright was meaningless to authors and composers, since they received a flat fee for acquisition of both their manuscript and the right to print and distribute it"; W.F. Patry, Patry on Copyrights, 7 vols. (Thomson West Publishing, 2006) 1: 136-37. Compare also the 90 guineas which John Gay received from Jacob Tonson and John Watts for the copyright in both The Beggar's Opera and his first collection of Fables, with the estimated £700 Gay made by publishing Polly (the sequel to The Beggar's Opera) himself; see: uk_1737a.

[12] See: Sanjek, 1: 282; Carroll, 925-30.

[13] Sanjek, 1: 209 and following. Sanjek notes that when he first arrived Handel received "about £600 from the theater for his services as composer and music director for each of fifteen performances during the [first] several months"; ibid., 211. Sanjek also recounts how, after Handel started working at the Queen's Theatre, John Walsh "employed William Babbell, a member of the royal band and famed for his phenomenal memory and keyboard talent, to attend the opera regularly. After each performance, Babbell reconstructed [Handel's] improvisations from memory, until all were set down on paper, and The Symphonies or Instrumental Music for Rinaldo, in three instrumental parts, was published ... [While] Handel did not receive a penny for any of these printings ... Walsh let it be known that he had made £15,000 from Rinaldo's music, prompting the composer's rejoinder, ‘Next time I will publish the opera and Walsh can write the music'"; ibid., 211-12.

[14] This appears to be the first such privilege granted since the mid-seventeenth century; see Hunter, 270-71. Handel's first published work, Harpsichord Lessons, went on sale in November 1720 in Haymarket at a shop owned by a recent German immigrant (and Handel's friend) Christoph Schmidt; Sanjek, 217.

[15] Sanjek, 219-21.

[16] Handel's professional relationship with Walsh began in 1721 when the latter offered the composer £72 for the music of Floridante. Thereafter he published 65 of Handel's works in parts, and 33 pieces in score; Sanjek, 220. Sanjek writes: "In October 1739, George II issued a new grant of copyright privilege to Handel, affirming as well Walsh's exclusive rights to all of the composer's works for fourteen years. A notice of this royal license and protection was affixed to the last Handel work sold by subscription, the Twelve Grand Concerts, known today as "Opus 6," which was delivered to its one hundred subscribers in April 1740"; Sanjek, 227.

[17] Cited in Sanjek, 231-32.

[18] In chronological order they are: William Croft, 1724; William Thomson, 1733; Thomas Arne, 1741; Maurice Greene, 1742; John Stanley, 1742; Samuel Howard, 1744; William Boyce, 1745; Count de Saint Germain, 1749; Nicolo Pasquali, 1750; John Worgan, 1755; Karl Friedrich Abel, 1760; Johann Christian Bach, 1763; J.C. Fischer, 1770. See Hunter, 277, n.51.

[19] Hunter, 270-71.

[20] See Carroll: "Even when music was subject to a royal printing privilege, music publishers' claims of right did little to thwart unauthorized publication"; Carroll, 932.

[21] A Bill for the better Encouragement of Learning and for the more effectual securing the Copies of Printed Books to the Authors or Purchasers of such Copies, during the Times therein mentioned, 6 May 1735, Bodleian Library, MS Carte 207, 5. This was one of three provisions within the Bill which did not draw upon the content of the original Statute of Anne, 1710. Of the remaining two provisions the first sought to allow anyone publish any work that had been allowed, by its proprietor, to become "scarce and out of print" (Clause 6). The second sought to address the practice amongst authors and publishers "that as soon as an impression has been sold to publish another edition thereof with some alterations, additions or notes"; should anyone do so within 21 years of the publication of the original work, then they were also required to provide a subsequent edition of the revisions for anyone who had purchased the original work at a proportionate cost (Clause 8).

[22] Journal of the House of Commons (CJ), 22: 400.

[23] Report of the Committee upon the Stationers Bill, 1735, British Library, BM 357.c.2.(73).

[24] See for example: The Case of the Authors and Proprietors of Books, 1735, British Library, BM 816.m.12.(52); A Letter to a Member of Parliament concerning the Bill now depending in the House of commons, for making more effectual an Act in the 8^th year of the Reign of Queen Anne, 1735, Bodleian Library, MS Carte 207, 9; A Letter from an Author to a Member of Parliament occasioned by a Late Letter concerning the Bill now depending in the House of Commons, 1735, Bodleian Library, MS Carte 207, 16; A Second Letter from an Author to a Member of Parliament containing some Further Remarks on a Late letter concerning the Bill now depending in the House of Commons, 1735, Bodleian Library, MS Carte 207, 19.

[25] Certainly by this time Walsh was routinely paying composers for their manuscript works prior to publication; on the relationship between Handel and Walsh in particular see n.16 above.

[26] A Bill for the Better Encouragement of Learning by the more Effectual Securing the Copies of Printed Books to the Authors or Purchasers of such Copies, 1737, British Library, BS 68/16.(1).

[27] Clause 23.

[28] See: uk_1737.

[29] An Act for Prohibiting the Importation of Books reprinted abroad and first composed or written and printed in Great Britain, 1739, 12 Geo.II, c.36.

[30] See: uk_1737.

[31] There exist a number of documents relating to this action available in the Bodleian Library, the British Library, and the Advocate's Library, Edinburgh. See for example: Petition of the Booksellers of London against the Booksellers of Edinburgh and Glasgow, 15 July 1746; Answers for the Booksellers of Edinburgh and Glasgow to the petition of Andrew Millar and other Booksellers in London, July 29 1746; and, Answers for the Booksellers of Edinburgh and Glasgow to the Petition of Daniel Midwinter and other booksellers in London, 21 December 1746. See also S. Parks, ed., The Literary Property Debate: Seven Tracts, 1747-1773, (London: Garland Publishing, 1974).

[32] See for example Gwyn Walters, "The Booksellers in 1759 and 1774: The Battle for Literary Property", Library, 5^th ser., 29 (1974): 287-311.

[33] The Case of the Appellants, 8 February 1751, BM 18^th century reel 4065/03; The Case of the Respondents, 11 February 1751, BM 18^th century reel 4065/04.

[34] Tonson v. Collins (1761) 1 Black W 301; Tonson v. Collins (1762) 1 Black W 329.

[35] Millar v. Taylor (1769) 4 Burr 2303; see: uk_1769.

[36] Donaldson v. Becket (1774) 4 Burr 2408; see: uk_1774.

[37] For details see Carroll, 936-37.

[38] For details see Carroll, 937-40.

[39] Bach v. Longman, 623.

[40] Abel had moved to London in 1759 where he was appointed chamber musician to the Queen; Bach arrived in 1762 and served as music master to the Queen; see Carroll, 942-43.

[41] Statute of Anne, 1710, s.1.

[42] Statute of Anne, 1710, Preamble. On this point Carroll writes: "If taken literally, the court's holding that a musical composition is 'a writing' within the Statute would leave composers without protection. That clearly was not Mansfield's intent. Instead of holding that the term 'book' encompassed musical compositions, Mansfield chose to construe the term 'book' in the operative provisions as shorthand for 'books and other writings' and hold that musical compositions were such other writings"; Carroll, 953.

[43] Bach v. Longman, 624.

[44] Following the decision in Bach there was some uncertainty as to whether a single sheet of music could be considered to be a 'book'. The issue was considered in Hime v. Dale (1803) 11 East 244, and authoritatively resolved by Ellenborough C.J. in Clementi v. Goulding (1809) 2 Camp. 25, in which the court concluded that a sheet of music should be considered to be a 'book' "within the meaning of the statute".

[45] Carroll, 945.

[46] Ibid.

[47] Ibid., 946.

[48] Jeffreys v. Boosey (1854) 4 HLC 815; see: uk_1854.