5. USA, 19th century, copyright infringement in the sheet music industry, two additional cases
Here, we want to analyze two cases related to copyright in the sheet music industry.
a. Illinois, 1896 Gabriel versus McCabe
The first case was the subject of a judgment rendered in Illinois in 1896, it is known as Gabriel against McCabe. This case concerns a compilation of sheet music, a songbook entitled "The finest of the wheat number 2".
The legal document to which we have access informs us that, initially, the complainant, Mister Gabriel, authorized the defendant, Mister McCabe, to publish a song of which he holds the rights, entitled «When the roll is called up yonder» in a compilation called «The finest of the wheat number 2». The defendant published this compilation in combination with another collection, «The finest of the wheat number 1», the two books following each other under the same cover. The defendant also published an abridged edition of "The finest of the wheat number 2", this abridged edition essentially serving to promote the sale of the complete volume.
This is why the complainant filed a complaint, wishing to prevent the publication of his song in another collection than the compilation entitled «The finest of the wheat number 2». Nevertheless, the defendant considers himself authorized to do so, because the complainant has consented to the publication of future editions of his compilation, with the addition of other questions or omissions from the compilation being agreed, within a certain limit. The defender considers that the form of his publications, for this specific song, respects this limit.
The judge considers that, a priori, the changes made by the editor do not alter the nature of the original compilation. To claim otherwise would be to prohibit any new edition of sheet music compilations, as it would be too tedious to obtain the consent of all copyright owners for all sheet music for each new edition. In addition, it would be too damaging to the interests of the publishers and also to the original intention of the two factions involved in the commercial transaction.
The judge goes on to say that it may be difficult to determine where the publisher's rights end, but that, despite everything, he has not, here, exceeded the limits imposed on him. Consequently, the judge rejects the complainant's request to prohibit the publication of his compilations.
b. California, 1898, Broder versus Zeno Music
The second case, which happened in 1898, is called Broder versus Zeno Music. In this case judged in California, it appears that a man named Bert Williams, represented by the Broder company, is the original composer of a copyrighted song, song called "Dora Dean". A certain Charles Sidney O'Brien, represented by Zeno Music, is accused of having copyrighted a song entitled "Ma Angeline", whose melody has apparently been stolen from "Dora Dean".
Unless it is the opposite, because the two songs received their copyright 4 days apart, in 1896, and the two composers accuse each other. Each of these so-called composers accuses the other of having pirated the melody, by simply changing the title and the lyrics of the song. So the question is which of the two is telling the truth. The complainant's speech is as follows. Bert Williams first conceived the idea for the song "Dora Dean" in late July 1895, in San Francisco. The following August, Williams, being a vaudeville artist, was employed by the owners of a local vaudeville theater to perform on stage and then play in a cafe. It was under these circumstances that he developed and composed "Dora Dean".
It also appears that Charles Sidney O'Brien, the alleged composer of the song "Ma Angeline", frequented the place where Williams was then employed, occasionally rendering management services and making musical arrangements. This is where he and Williams first met. According to Williams, O’Brien heard him sing the melody of "Dora Dean", in the presence of the owners and clients of the house.
Still according to Williams, O'Brien came to him, and asked him to teach him the song, saying that he was part of a troop of minstrels, and that he wanted to sing something there that no one else had. Williams agreed to his request, and taught him the song. Williams' testimony is corroborated by a high number of witnesses who testified that they heard Williams sing "Dora Dean", after Williams asked their opinion. In addition, O'Brien has actually been shown to frequent the location where Williams was employed.
It has also been proven that, in late August 1895, a man named George Hetzel, a musician, made an arrangement of "Dora Dean" for the piano, with the agreement of Williams, and had it printed. However, a delay then occurred in securing copyright, and, while Williams wanted the song to be presented to the public with the names and portraits of two vaudeville artists, that did not happen. The song was finally presented to the public without these portraits in February 1896. The same day, the title page of the song was sent from San Francisco to Congress and the Congress Bookstore to be copyrighted.
It was then that his copyright was finally granted to the complainant. It is to highlight that
the song "Ma Angeline", allegedly composed by O’Brien, went on sale to the public the same day in San Francisco. According to the testimony of O'Brien, singer and actor, it was he who first conceived the idea of the melody of "Ma Angeline" in 1887, which he sang with his own words, in various places, notably in San Francisco, before the moment of the publication of the song, and before the composition of the song "Dora Dean" by Williams, who, moreover, often came to his house. The complainant is said to have heard "My Angeline" sing at a fair.
However, the judge, in light of the credibility of the complainant's testimony, supported by twenty other witnesses, is convinced that it is Williams who is the author of the original melody of the song. Especially since it has been proven that, during certain performances, O'Brien sang the words of "Dora Dean", which he therefore had to know beforehand.
Another question arises, however, in connection with the fact that since 1802, in the United States, musical compositions of an immoral character cannot be protected by copyright. When a copyright is declared invalid due to the use of a word having an immoral meaning, their owners can republish the song, by deleting or replacing this word, and consequently obtain a valid copyright.
It appears that one word in the song «Dora Dean» is problematic and its use has the effect of making the song obscene and vulgar, and thus excluding it from the class of compositions which may be copyrighted. Similar songs containing this word have been found worthy of copyright. Everything is therefore a question of meaning in relation to the context.
The judge considers that, in the case of "Dora Dean", the word does have a vulgar meaning. He adds, however, that this decision will not prevent the complainants from republishing their song, by omitting the word objectionable, of course.
For all these reasons, the defendant is therefore denied the right to continue to sell and publish the song "Ma Angeline" again.
c. Brief conclusion
The two cases discussed in this video are still of interest to the sheet music industry in the twenty-first century. Echoing the first case, we can say that it is always appropriate for contractors to agree well from the start on the terms of publication.
Compared to the second, we understand of course that it is in the interest of sharing music to be done in confidential circles first and in any case after obtaining a copyright right.