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THE MUSIC TRADE REVIEW
Copyright Music and Self-Playing and words upon those sheets. The holder English law preventing a public perform-
of a copyright had, however, no exclu- ance of a copyrighted work, but only ap-
Instruments.
AN IMPORTANT RULING BY THE ENGLISH
COURT OF APPEAL IN THE SUIT OF BOOSEY
VS. WHIGHT
THE J E O L I A N
CO.
WIN
NO
COPYRIGHT IN REPRODUCTIONS FOR
SELF-PLAYING INSTRUMENTS.
An important case of great interest to
members of the industry engaged in the
manufacture of self-playing instruments
wherein perforated rolls of music are used,
has just been decided in the English Court
of Appeal.
In April last Boosey & Co., the well-
known music publishers, applied for an in-
junction to restrain Whight & Co., at that
time London agents for the ^2olian Co.,
from reproducing for the ^Eolian three
songs, "My Lady's Bower," "The Better
Land" and "The Holy City," whose copy-
rights the Booseys own. Of course, the
mechanical principle of the operation of
the ^Eolian is well known to all our
readers. By means of perforated rolls of
paper passing over pipes desired musical
sounds are produced with great precision,
which, through the aid of stops, swells and
pedals, as well as variations of time and
expression effected by the will of the per-
former, give this music an individuality
which has made the ^Eolian known the world
over. The Booseys maintained that the per-
forated rolls were substantially copies of
sheet music; and hence, when played
upon, caused an infringement of the copy-
right act. It was admitted that upon these
rolls there were also inscribed various mu-
sical directions, such as "crescendo," or
"fortissimo," and these, it was asserted,
served to make the infringement of copy-
right certain and obvious.
Justice Stirling, before whom the ap-
plication came in the first instance, de-
clared that, in his judgment, the perforated
paper could not be considered as the copy
of a sheet of music, and hence was no viola-
tion of the copyright law. He thought,
however, that the musical directions upon
the rolls did infringe upon the law. He,
therefore, refused to grant an injunction
restraining the use of the rolls, but granted
one as to the musical directions. This, of
course, was unsatisfactory to both plaintiff
and defendant. It was, in essence, a de-
cision against both, as it held practically
that the owner of the copyright could not
maintain it against the yEolian, while the
use of the ^Eolian was thereby seriously
restricted in its operation and its sale was
hampered.
In the Court of Appeal, to which the
case was carried, and before which long
and able arguments were made by some of
the most distinguished members of the
English bar, all three Judges, Lord Justice
Romer, Sir Francis Jeune and Sir Nathaniel
Lindley, agreed in refusing the injunction
altogether, either as to the musical direc-
tions or the perforations.
The Court of Appeal declared that copy-
right in an article meant the exclusive
right of printing or multiplying copies of
that article, that is to say, in the case be-
fore the court, of copies, sheets of music
and of the notes and other printed signs
sive privileges in the private execu-
tion of the music indicated by such
sheets, nor in mechanism for its ex-
ecution. Regarding the perforated rolls,
the only question was whether they could
be held to be copies of the sheets of music
in question. Were they copies within
the meaning of the copyright law, or were
they even copies at all? It was one thing
to play an instrument from a sheet of
music which appealed to the eye, but quite
another thing to play it from a perforated
piece of paper, which was in itself a part
of the very mechanism, often automatic,
by means of which the music was pro-
duced. A copy, in general, was that which
came so near the original as to give to
every person seeing it the idea created by
the original, and in this sense perforated
rolls could not be regarded as music sheets.
It was strenuously urged by the counsel
for the plaintiff that many persons were so
trained that these rolls presented to their
eyes the original musical score and that
they were able to play or sing from the one
with as great readiness as from the other.
But the judges held that the rolls were not
soused in general nor were they made to be
so used, and that such a use represented a
mere theoretical assumption, and not a
practical business fact. While it was true
that the manufacture and sale of these rolls
might diminish the sale of the plaintiff's
sheets, it was not clear that the plaintiff's
copyright had been in any way infringed,
and the decision of Mr. Justice Stirling in
this regard, therefore, was affirmed. The
Judges of the Court of Appeal declared,
moreover, that Mr. Justice Stirling's
decision on what they thought was a
subordinate aspect of the case, namely,
the issuance of an injunction restrain-
ing the defendant from copying the musi-
cal directions on the sheets of music, was
wrong. They held that no copyright could
vest in such directions apart from their
connection with the musical scores them-
selves. The directions were not in them-
selves a sheet of music, nor were they a
sheet of letter-p»ess published separately.
They were mere words, not sentences
forming a literal composition in which
copyright could be acquired.
*
*
*
*
Commenting on this decision—which,
by the way, has been widely noticed in the
English papers—the Sun of this city says:
"While the case was one regarding simple
sheets of music and a particular instru-
ment, it is obvious that the princi-
ple laid down by the English Court of
Appeal applies thoroughly to the use of
machines devised to make sounds that
in any way become the subject of copy-
right. Its effect is, therefore, far-reaching.
The wax cylinder of a phonograph cannot
be a copy if perforated strips of paper are
not copies. One may use these instruments
freely in private as one may read or sing or
play a printed page, without violating the
law of copyright. It must be borne in
mind, though, that, so far as the English
decision goes, it in no sense nullifies the
plies to private reproductions. In this
country it seems clear that the effect of the
decision, if it is followed by our courts,
will be much wider than in Great Britain.
The law of copyright, as it stands, has re-
ceived a construction greatly limiting its
operation."
Noted Artists Praise the Kranich
& Bach Piano.
The Kranich & Bach piano has long
been a favorite in the "Land of the Monte-
zumas." Its musical merits, so widely
acknowledged throughout the length and
breadth of this land, have been paid tri-
bute to by some of the leading dignitaries
and musical authorities of Mexico, and
the following testimonial which Kranich
& Bach have just received through their
representatives in Mexico City, Messrs.
E. Heuer & Co., is not at all surprising.
It must be gratifying not only to the manu-
facturers but to Messrs. Heuer & Co., who
are so enthusiastically and effectively pro-
moting the Kranich & Bach interests in
that interesting section of the Americas:
Mexico, Nov. 12th, 1899.
We, the undersigned artists of "La
Gran Compania de Opera," organized by
Sr. Napoleon Sieni, hereby desire to ex-
press our thanks to Messrs. E. Heuer y
Cia., of this city, for the kind loan to us
of Kranich & Bach pianos, and we are glad
to add our testimony to that of innumera-
ble others, whom we all join in the belief,
based upon personal experience, that the
Kranich & Bach pianos are to-day the best
and most artistic pianos in the world.
Adela Gini Pizzorni, Soprano Drama-
tica; Adelina Padovini Farren, Soprano
Ligera; Raimonda Da Costa, Soprano;
Giuseppe Tisci Rubini, Bajo; Manuel
Manorales, Tenor; Pietro Jacomello, Bajo;
Giuseppe Badaracco, Tenor; Pierre Cor-
nubert, Tenor; Cav. Arturo Bovi, Maestro
Concertador y Director de Orquesta.
The /Eolian Quarterly.
The latest issue of the ^Eolian Quarter-
ly, which is quite as creditable a production,
in many ways, as any of its predeces-
sors, is receiving much warm commenda-
tion. Carroll Brent Chilton, the editor, is
to be congratulated on the results achieved.
The several contributors have been happy
in their choice of subjects, and the topics
chosen have been adequately and fittingly
treated. The illustrations, including the
portraits, are appropriate and well en-
graved. The typography is, as usual,
faultless. Taken as a whole, this issue of
the Quarterly will be very helpful to the
iEolian interests, fulfilling well its mission
of encouraging consideration of JEolian
and Pianola merits.
Steinert Success.
Alexander Steinert, head of the great
Steinert house, was in town yesterday. He
is very enthusiastic over the enormous in-
crease in the volume of business transacted
by his house during the present year.