First music plagiarism lawsuit

The earliest example of a music publisher successfully taking another to court for musical plagiarism (rather than for unauthorized republication of a work in its entirety) is D'Almaine v. Boosey, heard by the Court of the Exchequer at Gray's Inn Hall in London, UK, on 2–3 March 1835.

The case concerned a selection of pieces of music for dancing composed by Philipe Musard and published by Boosey & Company in the UK as Musard's 58th Set of Quadrilles. A few of these pieces were rearrangements of tunes originally written by Daniel François Auber for his 1834 opera Lestocq. The plaintiff was Auber's British publisher, D'Almaine & Company, who contended that as the melodies of Musard's music were copied from Auber's opera, these rearrangements constituted an infringement of their copyright. D'Almaine began legal proceedings to secure an injunction against Boosey, barring them from continuing to sell the 58th Set.

The case had its preliminary hearing on 18 February 1835. The judge decided the case should stand over until 2 March, and ordered Boosey & Co. to record any sales of the offending publication in the meantime. This was so damages could be accurately calculated if the final decision went against them.

At the trial on 2 March, D'Almaine & Co. were represented by Horace Twiss, while the counsel for Boosey & Co. was John Beames. Both Twiss and Beames were highly respected barristers (lawyers who specialize in courtroom advocacy under the British common-law system). Beames was a noted authority on family law, amongst other things, while Twiss combined his legal practice with a role as a Tory member of parliament. The case was heard by Judge James Scarlett, 1st Baron Abinger, who was then the Lord Chief Baron of the Exchequer, and who had recently crossed the aisle from the Whig party to join the Tories in parliament. Though a powerful and well-known public figure, Scarlett's career on the bench was not particularly distinguished, as he had a reputation for being somewhat capricious and domineering with juries and lawyers.

The case hinged on the interpretation of a legal principle called "fair abridgement", which at the time gave authors broad rights to summarize, update or even partially copy existing works. Philipe Musard had effectively built his musical career around this principle, making a living producing books of music for dancing that were re-arrangements of popular new tunes – a sort of early-19th century version of a Now That's What I Call Music compilation.

Twiss argued that while the two pieces were not the same, bar for bar, the "spirit, pith and marrow" of the original opera had been taken. He read from an expert affidavit provided by the composer George Rodwell, who stated that 17 of the 32 bars of the first quadrille in Musard's collection were copied from the overture of Lestocq, and the other 15 bars repeated fragments taken from other parts of Auber's composition. This was, Twiss argued, clear evidence of plagiarism.

As happened in several early plagiarism cases, a degree of absurdity was introduced by the judge's unwillingness to allow a musician to perform in the courtroom. Scarlett jokingly suggested "Perhaps, Mr Twiss, you can illustrate it with your voice?", which was met with laughter in the court and a flustered "I am sorry I am not able to do so, my lord" from Twiss.

The counsel for the defence did not deny the musical similarities between the two works, instead focusing on the legal technicalities of the case. John Beames argued that as this was fundamentally a dispute between two French composers who lived and worked in Paris, a London court was not the appropriate venue for the arguments.

The court was not swayed by Beames's legal rationale, however, and found in favour of the plaintiffs. In his summing up, Judge Scarlett gave the following opinion, which was cited in many subsequent plagiarism cases in the UK.

"Now the most unlettered in music can distinguish one song from another, and the mere adaptation of the aria, either by changing it to a dance or by transferring it from one instrument to another, does not, even to common apprehensions, alter the original subject. The ear tells you that it is the same. The original aria requires the aid of genius for its construction, but a mere mechanic in music can make the adaptation or accompaniment. Substantially the piracy is where the appropriated music, though adapted to a different purpose from that of the original, may still be recognised by the ear. The adding variations makes no difference in the principle."

There is an earlier case that was similar in many respects, Murray v. Purday, which was heard in June the previous year at the same court. It concerned two songs, "The Old English Gentleman" and "The Old Country Gentleman", that were published and performed within a few months of each other. During the trial, however, it was revealed that the similarities between the two were the largely the consequence of both being modernized versions of an 18th century folk song, "The Old Courtier". The jury found in favour of the defendant, and no clear legal precedent was established.

The first case relating to musical copyright in the United States, Reed v. Carusi, was not heard until 1845. In France, the question of the copyright status of music was still considered to be ambiguous well until the 1840s. In German-speaking regions, music publishers formed a cartel in 1830 to informally enforce copyright, as the laws of the time did not provide adequate protection. As a result, such disputes did not reach the courts until many years later.