17 F.Cas. 374, No. 9600 (Cir. Ct. S.D. New York 1844)
W. J. Wetmore
“The Cot Beneath the Hill”
Comment by Charles Cronin
Millett v. Snowden is the earliest U.S. music copyright infringement case we have identified. The work in question, “The Cot Beneath the Hill,” embodies the typically sentimental flavor of popular (and serious) vocal works of the mid-nineteenth century. The “cot” in question appears to have been not a bed per se, but rather an informal dwelling along the lines of a tree house in which the protagonist recalls spending happy hours as a child. One of Luisa May Alcott’s Little Men, might have sung this ditty. The recording here, however, was played, sung, and recorded by the site’s author.
Unlike music copyright infringement disputes from the latter half of the 20th Century forward, that are typically based on trifling musical – or even verbal — similarities, this dispute involved the defendant’s reproduction (republication, in fact) of the plaintiff’s entire copyrighted musical work. The defendant – publisher William Snowden — unsuccessfully attempted to avoid liability claiming that he was unaware that the plaintiff’s work was copy protected when one of his staff cribbed it from a Boston newspaper and republished it in toto in an issue of the Ladies Companion in 1844. If, in fact, the Boston newspaper publication of the sheet music carried no indication of copyright, the defendant’s assertion of non-liability might have carried some weight given the importance of copyright notice prior to the 1976 Copyright Act.
The plaintiff was awarded statutory damages of 625 dollars – worth over 15,000 dollars today.
The sheet music provided on this site was taken from the defendant’s publication in The Ladies Companion.
THE COURT, in its charge, stated that intention could not be taken into view. If a copyright has been invaded, whether the party knew it was copyrighted or not, he is liable to the penalty. As to its being different from the original, in music, as in writing, the omission of a word or line or paragraph could not change it so as to avoid the statute. The poetry, in this instance, could not affect the result, as the copyright was for the music. A defendant is at liberty to show that the work copyrighted was not original with plaintiff, or that it was an abbreviation or alteration, and the jury could determine whether it was calculated to infringe the copyright or not. In cases of patents, the jury is at liberty to assess damages, but not in violation of copyright. The penalty in the latter is fixed by law. The jury, if they consider that defendant has republished without leave obtained in writing from plaintiff, must proceed to ascertain the number of sheets proved to have been sold, or offered for sale (not the number printed), and return a verdict of one dollar for each sheet so sold or offered to be sold.
Verdict for plaintiff, $625.