Mag. Cas. 398 (Eng.)
Work in Question
Polly, a ballad opera, words by John Gay, and public domain melodies arranged by Johann Christoph Pepusch (1729); rearranged by Frederic Austin (1922); orchestral arrangements by Albert Ketelbey (1923)
Complete copy of original text and music by Gay and Pepusch, 1729
Complete copy of revision of the 1729 work by Austin and Bax, 1922
**From a performance by the original cast of Austin’s version, recorded in 1923.
***From the performance by Columbia Gramophone Company Orchestra recorded in 1923, the basis for this dispute.
Comment by Charles Cronin
This dispute presents an agreeable tangle of both legal and musicological questions. It’s also an early and rare example of a finding of infringement of a work of music based entirely on harmonic, and not melodic similarities.
Polly, the “ballad opera” at issue in this dispute, is a sequel to The Beggar’s Opera. John Gay is the author primarily associated with both works, despite that fact that Gay did not write music for either of them. This may be due to the fact that until the Nineteenth Century authors of opera texts were commonly given equal, if not higher, billing than those of the music. Also, ballad operas were akin to Twentieth Century musicals, with relatively simple songs – often based on commonly known folk song and hymn melodies – sprinkled among a substantial spoken text.
German musician Johann Pepusch wrote the music for both The Beggar’s Opera and Polly, the latter first published in 1729. Deemed “filthy and libelous,” British politician Robert Walpole forbade performances of the work. Naturally, this interdiction spurred sales of the printed work to such an extent that pirated copies were sold, prompting Gay to sue a number of publishers.
Polly was not publicly performed until 1777, using a revised and expanded music score by Samuel Arnold. In the early 1920s English composer Frederic Austin and writer Clifford Bax (brother of the better-known musician Arnold Bax) created another revised and expanded version of the 1729 work by Pepusch and Gay — not the version by Samuel Arnold — which is the subject of this dispute.
In a prefatory note to his score Austin claims his music was based on “melodic fragments” of traditional or contemporary tunes to which Pepusch added “basses”. In fact, Pepusch’s score contains complete melodies for over seventy short sung numbers, with underlying bass notes from which skilled performing musicians can infer his intended harmonies.
Austin denied Columbia Gramophone’s request to record and sell recordings of performances of several numbers from Austin’s score. Columbia, according to Judge Astbury’s opinion (see below), then used the 1729 version by Pepusch and Gay – long in the public domain – as the basis for the score of the performance it planned to record. But because Judge Astbury determined that Columbia’s harmonization of the melodies in Pepusch’s score – merely “traditional tunes” according to Astbury – resembled those used by Austin, he held Columbia liable for infringement.
In his brief factual account Astbury incorrectly states that the Pepusch/Gay opera was unknown and unperformed until the plaintiff’s revision of it in the 1920s; as mentioned earlier, Samuel Arnold’s version had been published and performed in the late Eighteenth Century. Astbury notes that Columbia “deliberately harmonised the Gay material to resemble the plaintiff’s work.” But Austin’s harmonizations of the melodies align closely with those implied by Pepusch’s score. Astbury claims his decision was informed by “expert [musical] evidence” but it appears more likely that he was swayed by the fact that the plaintiff had denied Columbia’s original request for permission to perform and record his score.
If, as Columbia claimed, its version of Polly was based on the 1729 score, there is no basis for a finding of infringement. Given that both the melodies and underlying harmonies of this work were in the public domain, the court’s finding of infringement should have been based on an exceptionally high degree of similarity. Unless we locate a copy of the score Columbia planned to use for its recording (tall order!) we can only speculate as to whether Columbia materially copied the plaintiff’s score, and did not, as alleged, base its score on the Pepusch/Gay publication located at the British Museum.
Opinion by Judge Astbury
Infringement of the plaintiff’s copyright in the music of the opera ‘Polly’, written by John Gay as a sequel to ‘The Beggar’s Opera’ was alleged. A volume comprised the opera in prose form, with an appendix including simple airs with an added bass. These were traditional tunes at the time and Gay composed none of the music. The opera remained unknown and unperformed until 1922, when the plaintiff, in collaboration with a lyricist, arranged and composed the music by altering and extending the existing tunes to fit the new lyrics. The opera succeeded and the Defendants wished to produce the best airs on gramophone records. The Defendants’ musical director picked out 20 tunes but the plaintiff had already reached agreement with another record company for the recording of parts of the opera as band music and refused a licence to the Defendants who then decided to proceed without his consent and sent their musical director to the British Museum to copy from the original Gay edition the tunes which they had selected for recording, in the hope of avoiding any copying of the plaintiff’s own music.
Held: The expert evidence indicated that the Defendants had deliberately harmonised the Gay material to resemble the plaintiff’s work, though they had not taken the actual notes used by him. They had imitated his harmonisation to capture the impression made by his own music, on which the production’s commercial success was based. This was sufficient to amount to an infringement of his copyright.