Comment by Charles Cronin

The Sacred Harp, a collection of religious musical chestnuts was enormously popular among Baptists in the rural South since first published by Benjamin Franklin White in 1844. Given the durability and ambiguous copyright status of many of the works in The Sacred Harp others eventually published new versions of it. One of those who did was W. M. Cooper who claimed in 1902, in the preface to his “new and improved” version:

…[A]n addition of still greater importance was thought desireable; many singers wanted the alto written for each song. This work was undertaken by the author, and while involving more thought and labor than all the other changes combined, it has been done to the best of his ability. The author makes this contribution to the music of the world with diffidence, and with the sincere wish that the work might have been undertaken by more competent hands…

Diffidence? When Cooper learned that Joseph James, a self-taught lawyer, and “Sacred Harper” had published a competing edition of The Sacred Harp, also with alto parts, Cooper sued James for copyright infringement. We have reproduced here “Never Turn Back” as it appears in Cooper’s 1902 Sacred Harp and in James’s Original Sacred Harp.

Further complicating matters, we learn from the introductory remarks to the Original Sacred Harp (Sacred Harp Publishing Company: Bremen, Georgia [1971]) that the alto parts to several hundred of the songs in James’s book were written not by Joseph James, but rather by Seaborn McDaniel Denson, who was the editor for James’s work (and whose descendants were associated with what became known as the “Denson Revision” of the same book).

The illustrations offered above of “Never Turn Back” exemplify how closely the alto lines in some of James’s publication follow those of Cooper’s earlier edition.  (We are grateful to Robert Vaughn of Mount Enterprise, Texas, for suggesting these illustrations, and providing the correct full name, scans of relevant musical numbers, and the photograph, of Wilson Marion Cooper).

The Court concluded that James’s altos were copied from Cooper’s:

…Although denied in an answer filed in the case, it is necessary, perhaps, as the case is now heard, to assume that the altos used in James’ book, issued in 1911, are substantially the same as in Cooper’s book, so that the question is whether…an alto is such an addition to a piece of music already having the other three parts as would make it the subject of a legal copyright…

In any event, quoting from Jollie v. Jaques and borrowing from the “non-obvious” hurdle of patent law , the Court decided that the addition of an alto part to a three-voice work is something “…a writer of music with experience and skill might readily make” and thus not protectable by copyright. Courts today would undoubtedly take a more generous approach on the question of copyrightable musical expression. In his excellent history of Sacred Harp singing, Buell Cobb adds support to the Court’s view noting that while “…many of the altos in the James book do appear to have been based on the altos in [Cooper’s] book…given the rigid harmonic practices of the Sacred Harp…with each of the other three parts already established in chordal arrangement, there would have been little room for individual differences in the composition of the alto parts — even if the James revisionists had worked altogether independently of Cooper’s book.” The Sacred Harp; A Tradition and Its Music (Athens, Georgia: University of Georgia Press, 1978) 95-96.

We offer above a brief audio clip of Sacred Harp singing.  The melodic and phrase scansions of Aaron Williams’s “Mear,” (linked above) resemble those of “Amazing Grace.” The recording of “Mear” linked to this site was made by Alan Lomax in the 1950s. The strident sound is initially startling, but somehow evocative of the rural south in the first half of the Twentieth Century.

There are several moments of somewhat sweeter sounding Sacred Harp singing in Anthony Minghella’s movie “Cold Mountain” (2003) but (Hollywood fashion) these are fraught with historical inaccuracy. Before the Civil War the characters in “Cold Mountain” sing several verses of “Idumea” and “I’m Going Home” in four-part harmony. At the time of the Civil War these songs, in the only available edition of the Sacred Harp, had only one verse apiece, and neither contained an alto part. (Our thanks to John Merritt, an attorney and Sacred Harp singer in Mt. Pisqah, Alabama for pointing this out to us.)

The Coen brothers’ movie “The Ladykillers” (2004) also uses Sacred Harp singing — “Weeping Mary,” performed by the Rosewell Sacred Harp Quartet..as an aural component of its Southern setting (albeit contemporary, not 19th Century as in “Cold Mountain”).

Opinion by District Judge Newman

This is a bill in equity, brought by the plaintiff against the defendant, alleging the infringement of what is alleged to be a copyright for the revising, improving, and remodeling of a book known as “The Sacred Harp.” It appears from the record that a song book called “The Sacred Harp” was issued as far back as 1869, and perhaps earlier. All rights to this song book had expired prior to 1902, when Cooper issued a book called “The Sacred Harp.” The greater part of Cooper’s improvement was preparing what is known as “altos” to the songs contained in the book. Cooper claims that James issued a book in 1911 in which he used the altos which he prepared and used in his book published in 1902.

It seems that the songs in the original song book called “The Sacred Harp,” published in 1869, had only three parts, that is, what are now known as soprano, tenor, and bass, and that Cooper attempted in 1902 to copyright a book issued by him containing these same tunes, with the same or substantially the same soprano, tenor, and bass, but with altos added thereto. Although denied in an answer filed in the case, it is necessary, perhaps, as the case is now heard, to assume that the altos used in James’ book, issued in 1911, are substantially the same as in Cooper’s book, so that the question is whether, from the record now before the court, an alto is such an addition to a piece of music already having the other three parts as would make it the subject of a legal copyright; that is, with such well-known tunes in the Gospel Hymnals as “Coronation,” “The Promised Land,” and “Nearer, My God, to Thee,” which had been sung for years with only the three parts named above, is the preparation or making of an alto such an original composition as can be copyrighted.

The rule laid down by Mr. Justice Nelson in Jollie v. Jaques et al., Fed. Cas. No. 7,437, is this:

“The musical composition contemplated by the statute must, doubtless, be substantially a new and original work, and not a copy of a piece already produced, with additions and variations, which a writer of music with experience and skill might readily make.”

These altos that are prepared to the tunes in both Cooper’s book and James’ book, while probably made by musicians of experience and some skill, are not necessarily the productions of persons having the gift of originality in the composition of music. An alto may be an improvement to a song to some extent, and probably is; but it can hardly be said to be an original composition, at least in the sense of the copyright law. In patents we say that any improvement which a good mechanic could make is not the subject of a patent, so in music it may be said that anything which a fairly good musician can make, the same old tune being preserved, could not be the subject of a copyright.

The original Sacred Harp of 1869 and Cooper’s book of 1902, 1907, and 1909, and James’ book of 1911 are all, by agreement of counsel, before the court for examination and a part of the record in the case for present purposes. In my opinion Mr. James has not infringed any legal rights of Cooper to the Sacred Harp, or as to any alleged improvement made by Cooper in the Sacred Harp over that published in 1869.

The facts upon which the conclusion in this case is based appear clearly from the record as presented here, in connection with the different books containing the music, which are either exhibits or used on this hearing by consent of counsel; the important fact being that the altos to these tunes are mere improvements, by adding another part to sell-known, old-fashioned tunes, to which no one, so far as the tunes are concerned, claims or can claim to have any special rights whatever.

There is a motion by the defendant to dismiss upon several grounds. The third ground of this motion is as follows:

“The alto claimed to be infringed as a matter of law is no infringement, for defendant insists that no alto to a tune already having the other three parts is copyrightable, so as to keep other composers from publishing altos to such tunes, and this is all complainant claims defendant did. He does not claim that defendant infringed on any tunes in his book that were not in the Sacred Harp in 1869, and the books by reference to them show this fact.”

In the view I have of the case, this motion should be sustained, and a decree may be entered dismissing the bill for the reason stated above; that is, that the addition of an alto to a well-known tune is not such a “substantially new and original work” as entitles the person adding such alto to a copyright.