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7 translated pages

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      Barcelona Number ninety-two

                  
                              In the City and Court of Madrid
                              on 12 February
                              1877
                              in the cassation appeal
                              for infringement of the law
                              held before us, Mr Andres
                              Vidal y Roger appels
                              against the decision of
      criminal chamber of the High Court of Barcelona dealing
      with the case heard at the First Instance Court
      in San Beltran at the aforementioned city, against
      Mr Emilio Vives and Mr Juan Budo for artistic property fraud.
      
      
      Whereas the said Vidal had acquired
      the property rights in Spain and Portugal of an Opera
      by Leveq entitled “Las cien doncellas” from the publishing
      house Branus y Compania in Paris in compliance with the
      
      [on the left side]
      
      D. Sebastian Gonzalez
      Manuel Leon
      Miguel Zorrilla
      Diego Fernandez Cano
      Eugenio de Angulo
      Emilio Bravo
      Luciano Boada

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      on literary property between Spain and France.
      Later on, Mr Emilio Vives published and Mr Juan
      Budó printed some rigadoons that he had arranged
      for the piano based on the comic operetta “Las cien doncellas”.
      Besides the fact that it belonged to the author,
      the aforementioned Vives, and that the front cover
      referido Vives, y su precio el de dos pesetas; con cu-
      stated it cost two pesetas. For this reason, on
      19 May 1873, Mr Andres Vidal lodged a formal complaint
      and the case was admitted and that experts declared
      that the opera “Las cien doncellas” did not include
      any rigadoons, nor that it met the conditions for
      this dance. They were based on melodies from the
      above-mentioned opera. The themes were not in the
      the same order but jumbled and altered in sucession;
      parts of the rigadoons were compensated with themes
      from the opera. Some of them appear to be the same,
      although some fragments were found to have a different
      rythm, harmony, tempo or movement, tone, beat,
      accompaniment and base;
      
      
            Whereas the Criminal Chamber of
      the High Court of Barcelona decided

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      on 31 October 1876, having taken into account
      the stipulations of the Literary Property
      Act of 10 June 1847 and the convention
      with France regarding this matter of
      15 November 1853, and considering that
      the said rigadoons should not be deemed to be
      a reproduction of the said opera by means of a
      copy, extract or compendium of it,
      but as a piece of a special nature with its
      own structure and development,
      Mr. Emilio Vives and Mr. Juan Budó were acquitted
      and the Court would bear the legal costs;
      
      
      Whereas a cassation appeal for violation
      of law has been lodged against the said decision in the name
      of the private accuser, on the basis of article seven
      hundred and ninety-eight of the criminal procedural law,
      and mentioning the violation of article five hundred
      and fifty-two of the Penal Code; and the law of 10 June 1847,
      particularly its article eleven and

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      the treaty on literary property rights held
      with France on 15 November 1853, with the capacity
      for applying it, because there is a fraudulent act
      when part or the whole work is reproduced and
      when its idea and method is reproduced.
      In such case, since the work of the accused was not
      an original work, according to the statement of the Court
      that rendered the judgment, but the idea was taken from
      and based on the themes of the opera “Las cien doncellas”,
      it is evident that the property rights have been subjected
      to a fraudulent act and that Messrs. Vives and Budó are the
      authors of this crime;
      
      
      Verified by the presiding Magistrate
      Eugenio de Angulo;
      
      Whereas pursuant to the first Article
      of the Law of 10 June 1847, literary property is the exclusive
      right held by the authors of original writings to reproduce
      or authorize their reproduction by any possible means.
      Composers of music are equally granted the same rights,
      according to Article three.
      
      
      Whereas article ten of the same Act
      establishes the right prohibiting the reproduction of

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      somebody else's work without the authorisation of the author,
      under the pretext of annotating it, commenting on it, adding to
      or improving the edition; likewise authorisation is also required
      according to article eleven for taking an extract or summarizing it;
      
      
      Whereas article five hundred and fifty-two
      of the Penal Code indicates that the punishment for those who commit
      literary property fraud, a fraudulent act of special character,
      must be understood and explained so that the above-mentioned
      Article ten of the said Law is understood and explained;
      
      
      Whereas in the particular case in which it is
      evidenced by experts admitted in Court that the opera entitled “Las cien doncellas”,
      did not include any rigadoon, or any other piece that involves the
      musical conditions of this genre, and that the rigadoons whose
      publication originated this case, although they are arranged on
      themes from the said opera, a fact that is stated by its authors,
      this was done following a different order, and having compared
      parts of the rigadoons with themes from the opera, although some
      
      

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      fragments appear to be the same, it is observed
      that others are different in rhythm, harmony,
      tempos, movements, tone, beat, accompaniment and bass;
      
      Whereas in the previous expert
      evidence accepted by the decision, it cannot be said
      legally and rationally, that the accused reproduced
      someone else’s work in the sense of the prohibition
      stated in the said article ten of the Literary Property Act;
      
       Whereas, as a result, there is no
      violation of article five hundred and fifty-two of the Penal Code,
      and it cannot be applied to this case since no literary or industrial
      property fraud has been committed;
      
      
       We declare and we should declare that there is
      no case for the cassation appeal lodged by Mr Andrés Vidal y Roger;
      We order him to pay the legal costs and to lose his deposit of
      of one thousand pesetas, to which the action stipulated in the Law
      shall be applied; and the Court shall issue the corresponding
      certificate;
      
      

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      Accordingly our judgment will be published
      in the Madrid Gazette and inserted in the legislative series (Colección
      Legislativa). The necessary copies shall be made. We do state, order and sign
      
      
      
      
      
       Sebastián González Nandín Manuel León
      
       Miguel Zorrilla        Diego Fernández Cano
      
       Eugenio de Angulo-       Emilio Bravo
      
      Luciano Boada
      
      Publication: The above judgment was read and published
      by the Honourable Mr. Eugenio de Angulo, Magistrate of
      the Supreme Court holding public hearing in Courtroom Two
      today, which I, the Secretary reporting to this Court,
      hereby certify. In Madrid on 12 February 1877
      
      José María Pantoja, LLB
      



Translation by: Kay Leach