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Supreme Court on Music Copyright, Madrid (1877)
Source: Archivo del Tribunal Supremo; Id. Cendoj: 28079120011877100068
Citation:
Supreme Court on Music Copyright, Madrid (1877), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | No Commentaries
Translation only | Transcription only | Show all | Bundled images as pdf
7 translated pages
Chapter 1 Page 1
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
Chapter 1 Page 2
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
Chapter 1 Page 3
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
Chapter 1 Page 4
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
Chapter 1 Page 5
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
Chapter 1 Page 6
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;
Chapter 1 Page 7
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
Source: Archivo del Tribunal Supremo; Id. Cendoj: 28079120011877100068
Citation:
Supreme Court on Music Copyright, Madrid (1877), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | No Commentaries
Translation only | Transcription only | Show all | Bundled images as pdf
7 translated pages
Chapter 1 Page 1
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
Chapter 1 Page 2
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
Chapter 1 Page 3
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
Chapter 1 Page 4
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
Chapter 1 Page 5
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
Chapter 1 Page 6
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;
Chapter 1 Page 7
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