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Comment by Charles Cronin

An Englishwoman named Elizabeth Cook wrote the poem “The Old Arm Chair,” and it was first published in 1838. Apparently Cook authorized Henry Russell to write a musical accompaniment to her poem; this tearjerker was very popular, and Cook sold her copyright to Charles Jeffreys in 1841. When Jeffreys became owner of the work he commissioned another musical setting, by a composer named Iline. In the U.S. the copyright to the more popular musical version by Russell was ultimately sold to a Boston music seller named George Reed, the plaintiff in this case.

Before Reed purchased Russell’s setting, Samuel Carusi, an Italian musician imported to assist with the establishment of the U.S. Marine Band, also set Cook’s poem to music. He claimed that he set the words of “Arm Chair” to the music of “New England” – a contemporary song to which he owned the copyright, and not to Russell’s melody. From a comparison of the three melodies (see links above) Carusi’s musical setting has at least as much in common with “New England” (which he owned) than with the complaining work, i.e. Russell’s setting of “Arm Chair”. Moreover, Carusi’s setting is superior to Russell’s; Carusi’s lyrical melody is far more gratifying to sing and hear than is the constrained and repetitive vocal line of Russell.

Henry Russell (1812 – 1901) claimed to have studied with Rossini and Bellini. Songs like “The Old Arm Chair” and his more famous and musically fine “Woodman Spare that Tree,” not only show musical kinship to the simpler works Rossini and Bellini wrote for amateurs’ delectation, but also reflect the early nineteenth century appetite in Western Europe and America for exceedingly maudlin works dealing with subjects like orphans, the dying and recently deceased. The American Civil War provided ample fodder for such treacle – indeed, Henry Washburn’s lyrics to George Frederick Root’s war ballad “The Vacant Chair” are very much in the spirit of Elizabeth Cook’s poem. There is a wonderful MIDI rendition of Root’s song on Benjamin Robert Tubb’s Public Domain Music Site: http://www.contemplator.com/america/vchair.html

The jury found for the plaintiff, and Carusi was ordered to pay damages of $200; $100 apiece to the plaintiff and to the U.S. Government. Carusi sought pardon from President James Polk who forgave the damages owed the Government.

The “Old Arm Chair” recording excerpted above is by pianist and songwriter William Bolcom and tenor Clifford Jackson (“An Evening with Henry Russell,” Nonesuch H71338. p1977). Despite the title of the recording, Clifford Jackson sings Carusi’s, not Russell’s, version of “Old Arm Chair”! The Uncle Tom’s Cabin and American Culture website of the University of Virginia has posted a recording of a performance of Henry Russell’s version of the song: http://www.iath.virginia.edu/utc/sentimnt/armchairf.html

In his recent article that thoroughly investigates Reed v. Carusi, Francis McCormick, Jr. has included copies of many interesting contemporary documents associated with this case. The article was a winning paper in the Nathan Burkan Memorial Competition and is available here as a PDF file: Reed v. Carusi article

Opinion by Justice Taney

The defendant is not liable to this action, unless the jury find that Russell was the author of the musical composition called “The Old Arm Chair,” for which he obtained a copyright in 1840; and it is for the jury to decide, upon the whole evidence, whether he was or was not the author. If the said musical composition was borrowed altogether from a former one, or was made up of different parts, copied from older musical compositions, without any material change, and put together into one tune, with only slight and unimportant alterations or additions, then Russell was not the author within the meaning of the law; but the circumstance of its corresponding with older musical compositions, and belonging to the same style of music, does not constitute it a plagiarism, provided the air in question was, in the main design, and in its material and important parts, the effort of his own mind. The copyright is prima facie evidence that he was the author, and the burden of proof is upon the defendant to show the contrary.

If the jury find that Russell was the author of the said musical composition, then the defendant is liable to this action, if, in the language of the act of congress, “he caused it to be engraved, either on the whole, or by varying, adding to, or diminishing the main design, with intent to evade the law;” “or if he caused it to be printed for sale, in such manner and for such purpose.” But he is not liable, unless the musical composition caused to be engraved or printed for sale by him, is the same with that of Russell, in the main design, and in its material and important parts, altered, as above mentioned, to evade the law; nor is he liable to this action, although it is the same in these respects, provided it was not taken from Russell’s, but was the effort of his own mind, or taken from an air composed by some other person, who was not a plagiarist from that of Russell.

If the jury find against the defendant upon the two preceding instructions, yet he is not liable in this action, unless he was guilty of the infraction of the copyright within two years before this action was brought; but if the plates were engraved more than two years before, yet every printing for sale caused by the defendant, would be a new infraction of the right; and if such printing was within two years before the suit was brought, the defendant is liable in this action. Under the agreement endorsed by counsel, upon the declaration, the suit, so far as limitation is concerned, must be regarded as brought on the first Monday in April, 1844.

If the jury find the defendant liable, they will find the number of copies caused to be printed for sale by him, within two years before the suit was brought, and find the debt at the rate of one dollar for each sheet he may have caused to be so printed for sale.

Verdict and judgment for $200.