Boosey v. Whight

The facts and decision in this English case (1899) anticipate those of White-Smith Music v. Apollo, which the U.S. Supreme Court entertained less than a decade later. Both cases raise the issue whether piano rolls of copyrighted musical works were copies of them, and both courts determined they were not. These decisions involve tortured reasoning to the effect that piano rolls are not copies because humans cannot read them (which is not quite true). As the Defendant in Boosey oddly argued: “The rolls are intended merely for causation and not for indication of the music.”

In Boosey the Plaintiff claimed that the Defendant also infringed by providing indications to the “performer” (i.e. the operator of the mechanical player) of tempo and dynamic markings copied from their scores. Paradoxically, the court determined this copying of secondary, and less essential, musical elements was an infringement whereas the reproduction of the primary elements of melody, harmony, and rhythm, as fixed in the perforated rolls was not!

Lurking behind both of these obviously inequitable decisions is the 3^rd Protocol to the original Berne Convention of 1886 referenced in both:

It is understood that manufacture and sale of instruments used for the mechanical reproduction of musical airs borrowed from the proprietary domain are not considered to constitute infringement of a musical work.

[Il est entendu que la fabrication et la vente d’instruments utilisés pour reproduire mécaniquement des airs musicaux empruntés au domaine privé ne sont pas conditionnelles car constituant le fait de la contrefaçon musicale.]

A curious carveout with, no doubt, an interesting history that would inform our understanding of technologies for the distribution and consumption of popular music in the late 19^th Century. But by the early 20^th Century the piano roll and player piano industry was booming and in 1909 Congress effectively overruled White-Smith by amending the Copyright Act to protect musical works fixed in copies for “mechanical reproduction.”

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“My Lady’s Bower” was one of three songs Plaintiff claimed Defendant infringed. Victorian-era Irish songwriter Alice Davis (nom de plume “Hope Temple”) wrote this lovely musical setting of Frederick Wetherley’s highly sentimental verses around 1880. It is sung by Molly Bloom in Joyce’s Ulysses. (Joyce was a fine singer and competent pianist.) The audio clip above was derived from a recording by tenor Kevin McDermott, and pianist Ralph Richey. McDermott inflects his performance with a great deal of pathos and artificiality, which today sounds unbearably affected, but was likely fashionable in the early 20^th Century.

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