This article is an expanded version of papers delivered at the Maryland Handel Festival (College Park, 1994) and at a meeting of the Northeast American Society for Eighteenth-Century Studies (New York, 1994). Our research was partially supported by a Mellon Foundation Grant for Group Research in Europe. We are grateful to David Hunter, John Parkinson, Curtis Price and Mark Rose for reading earlier versions and offering many valuable suggestions. Crown copyright material in the Public Record Office is reproduced by permission of the Controller of H.M. Stationery Office.Google Scholar

1 For the details of Bach v. Longman and Lukey see Small, John, J. C. Bach Goes to Law', The Musical Times, 126 (1985), 526–9. No publication of a viola da gamba sonata by Bach has survived, and until recently there were no sonatas for the instrument attributed to him. However, a manuscript collection that came to light in 1992 (lot 463 at Sotheby's London sale of books, manuscripts and music, 28–29 May 1992) contains three viola da gamba sonatas by Bach. It is possible that the sonata at issue in Bach v. Longman and Lukey was one of these three.Google Scholar

2 Hawkins, Sir John, A General History of the Science and Practice of Music (London, 1776); modern edition ed. Charles Cudworth (New York, 1963), 850. We are grateful to David Hunter for informing us about Hawkins's discussion.Google Scholar

3 Careri, Enrico, Francesco Geminiani (1687–1762) (Oxford, 1993), 25, links this episode with Geminiani's decision in 1732 to engrave and publish his own works.Google Scholar

4 Throughout this article, ‘bookseller’ is used in its eighteenth-century sense to denote one who engages in the various activities associated with the publishing industry. The closest modern equivalent to the term would be ‘publisher’.Google Scholar

5 This lawsuit was also discovered by Curtis Price and Robert Hume.Google Scholar

6 On copyright in eighteenth-century England see Rose, Mark, Authors and Owners: The Invention of Copyright (Cambridge, Mass., 1993); David Saunders, Authorship and Copyright (London, 1992); Lyman Ray Patterson, Copyright in Historical Perspective (Nashville, 1968); Arthur Simons Collins, Authorship in the Days of Johnson (London, 1927); and Robert Maugham, A Treatise on the Laws of Literary Property (London, 1828). The following overview of English copyright law is indebted to Patterson and Collins. On musical copyright in particular see Hunter, David, ‘Musical Copyright in Britain to 1800’, Music and Letters, 67 (1986), 269–82.Google Scholar

7 Patterson, Copyright in Historical Perspective, 71–3, explains this as a negative covenant: ‘a contract not to object to the publication of the work, rather than a contract granting a right to publish it’.Google Scholar

8 On this point see ibid., 158–60.Google Scholar

9 8 Anne, c. 19, also known as the Act of Anne. For the events leading to the act see Feather, John, ‘The Book Trade in Politics: The Making of the Copyright Act of 1710’, Publishing History, 8 (1980), 19–44; and Harry Ransom, The First Copyright Statute (Austin, Texas, 1956).Google Scholar

10 Such a view of music was held by Charles Burney, who considered that ‘music is an innocent luxury, unnecessary, indeed, to our existence, but a great improvement and gratification of the sense of hearing’. Charles Burney, A General History of Music from the Earliest Ages to the Present, i (London, 1776); modern edition ed. Frank Mercer (New York, 1935), 21.Google Scholar

11 Bach v. Longman and Lukey, 2 Cowp. 624. Bach had unsuccessfully petitioned the House of Commons on this very question. See Small, ‘J. C. Bach Goes to Law’, 528. Throughout this article, British cases are cited to the set of English Reports.Google Scholar

12 According to David Hunter, at least 40 royal privileges were granted to composers during the eighteenth century (personal communication). In ‘Musical Copyright in Britain to 1800’, 277, note 51, he lists 16 privileges granted between 1710 and 1770. He gives three more (courtesy of H. Watton) in a letter published in Music and Letters, 68 (1987), 210.Google Scholar

13 Millar v. Taylor, 4 Burr. 2303.Google Scholar

14 Stationers' Company v. Carnan, 2 Black. W. 1004.Google Scholar

15 4 Burr. 2408.Google Scholar

16 Small, ‘J. C. Bach Goes to Law’, 527.Google Scholar

17 For a detailed discussion of the legal aspects of the book trade see Feather, John, ‘The English Book Trade and the Law: 1695–1799’, Publishing History, 12 (1982), 51–75.Google Scholar

18 On the petition to the House of Commons and the bills of 1735 and 1737 see Collins, Authorship in the Days of Johnson, 68–78; Feather, John, ‘The Publishers and the Pirates: British Copyright Law in Theory and Practice, 1710–1775’, Publishing History, 22 (1987), 5–32; and Rose, Authors and Owners, 49–66.Google Scholar

19 Applying to a court of equity was more expedient than initiating an action at law for damages, in which case the piracy could continue until the final decision was rendered. Obtaining an injunction was also the preferred method of stopping piracies of publications that fell within the purview of the Copyright Act. The penalties imposed by the act were so meagre that damages were rarely thought to be worth pursuing in a court of law. See Maugham, A Treatise on the Laws of Literary Property, 168–9; Saunders, Authorship and Copyright, 59; and the testimony of the bookseller William Johnston in Bach v. Longman and Lukey in Journal of the House of Commons, 14 Geo. III (1774), 590.Google Scholar

20 See, for example, the cases of Osborne and Tonson, discussed in Collins, Authorship in the Days of Johnson, 82, 84.Google Scholar

21 Walters, Gwyn, ‘The Booksellers in 1759 and 1774: The Battle for Literary Property’, The Library, 5th series, 29 (1974), 287–311.Google Scholar

22 Hunter, ‘Musical Copyright in Britain to 1800’, 270.Google Scholar

23 Quoted in Roger Lonsdale, Dr. Charles Burney (Oxford. 1965), 18; and in Memoirs of Dr. Charles Burney: 1726–1769, ed. Slava Klima, Garry Bowers and Kerry S. Grant (Lincoln, Nebr., and London, 1988), 103. We are grateful to John Parkinson for bringing this passage to our attention.Google Scholar

24 The text of Arne's privilege is taken from Vocal Melody: An Entire New Collection of English Songs and a Cantata, i (London: John Walsh, 1749).Google Scholar

25 The London Daily Post, and General Advertiser, 9 March 1741. Quoted in John A. Parkinson, ‘Pirates and Publishers’, Performing Right, 58 (1972), 20–2.Google Scholar

26 Rose, Authors and Owners, 45, 56–66.Google Scholar

27 On Pope's relations with the London book trade see Foxon, David, Pope and the Early Eighteenth-Century Book Trade, rev. and ed. James McLaverty (Oxford, 1991).Google Scholar

28 Rose, Authors and Owners, 59, lists five copyright suits brought by authors up to 1741.Google Scholar

29 PRO C11/2260/7, consisting of Arne's bill and Roberts's and Johnson's answer. The Engraving Copyright Act of 1735 (8 Geo. II. c. 13) protected only those who engraved their own works or designs; it also required that each print include a dated publication line. For a discussion of this act see Hunter, ‘Musical Copyright in Britain to 1800’, 278; and ‘Copyright Protection for Engravings and Maps in Eighteenth-Century Britain’, The Library, 6th series, 9 (1987), 128–47.Google Scholar

30 Arne gives the years of publication for his editions of the opera Rosamond (1735), the music in The Masque of Comus (1737) and the incidental music to As You Like It (1741). No edition of Rosamond, first performed at Lincoln's Inn Fields on 7 March 1733, survives, and only four songs from the opera appeared in printed collections. By the time of the lawsuit, three songs had already been included in The British Musical Miscellany (1734): ‘Was ever nymph like Rosamond?’, ‘Beneath some hoary mountain’ and ‘In that dear hope’. The earliest known edition of the music in Comus (first performed at Drury Lane on 4 March 1738) is the full score published in 1740. See John A. Parkinson, An Index to the Vocal Works of Thomas Augustine Arne and Michael Arne, Detroit Studies in Music Bibliography, 21 (Detroit, 1972).Google Scholar

31 Filing a bill at Chancery was a sure way to determine the extent of one's losses resulting from unauthorized publications, as the defendants were required to make a full disclosure of their publishing activities. According to the testimony of William Johnston in Bach v. Longman and Lukey, 'by filing a Bill in Chancery, the Booksellers always obtained an Injunction, and by the Answer given the Bookseller could ascertain the Damage he had sustained, as the Defendants were obliged to declare the Number they had printed“.Google Scholar

32 Indeed, it is striking that Arne mentions the Copyright Act to bolster his case. Statute law was by no means always invoked in copyright disputes, musical or otherwise; Chancery judges usually based their decisions in such cases on the inviolability of property. See Feather, ‘The Publishers and the Pirates’, 7. Arne may have taken his cue from Pope v. Curll.Google Scholar

33 For an overview of English song during this period see Johnstone, H. Diack, ‘English Solo Song, c. 1710–1760’, Proceedings of the Royal Musical Association, 95 (1968–9), 67–80; Hunter, David, ‘English Opera and Song Books 1703–1726; Their Contents, Publishing, Printing, and Bibliographical Description’ (Ph.D. dissertation, University of Illinois at Urbana-Champaign, 1989); and Hunter, ‘The Printing of Opera and Song Books in England, 1703–1726’, Notes, 46(1989), 328–51. On English cantatas and art songs see Goodall, Richard, Eighteenth-Century English Secular Cantatas (New York and London, 1989).Google Scholar

34 1747 is the publication date of the second edition of Michael Christian Festing's English Cantata call'd Sylvia, The Mo[r]ning fresh, and 4 other songs, advertised last in the second volume. Also in the list of Simpson's publications are Lewis Christian Austin Granom's op. 3 flute duets (c.1747), Festing's ‘Ode upon ye Return of his Royal Highness ye Duke of Cumberland from Scotland’ (after April 1746), and both volumes of Simpson's song collection Thesaurus musicus (c. 1742–5). According to Frank Kidson, ‘Some Illustrated Music-Books of the Seventeenth and Eighteenth Centuries: English’, The Musical Antiquary, 3 (1912), 195–208, the second volume of Calliope contains several songs relating to the Jacobite rebellion of 1745 and others from the Gentleman's Magazine of 1745 and 1746.Google Scholar

35 See Kidson, , ‘Some Illustrated Musit Books’, 200–8, for a discussion of the Musical Entertainer and other eighteenth-century collections modelled upon it.Google Scholar

36 The London Daily Post, and General Advertiser, 9 June 1738. An advertisement for vol. ii, no. 4 run the following month attacks Cole's British Melody even more forcefully. See Kidson, ‘Some Illustrated-Music-Books’, 201–2.Google Scholar

37 The London Daily Post, and General Advertiser, 19 January 1739.Google Scholar

38 For this point we are grateful to Curtis Price.Google Scholar

39 The First volume of Calliope had contained two additional Arne songs, ‘Love relaps'd’ and ‘How happy a state’ from The King and the Miller of Mansfield. They were not at issue in the dispute, presumably because both had appeared in other printed collections (including The Musical Entertainer). See Parkinson, An Index.Google Scholar

40 Roberts is probably referring not to the elder Daniel Wright, who died or retired about 1735 (well before Comus), but to the younger, who was active from 1730 to about 1740. On the basis of the claim, made by both defendants, that Wright is ‘deceased’, his date of death must fall within the years 1738–41. Johnson may have founded his business on that of the Wrights. See Kidson, Frank, William C. Smith and Peter Ward Jones, ‘Wright, Daniel’, The New Grove Dictionary of Music and Musicians (London, 1980), xx, 540–1.Google Scholar

41 Although no records of Arne's publications appear in the Stationers' Company's registers, Roberts and Johnson arc less convincing on this point since, strictly speaking, registration was not necessary to establish copyright. As the courts interpreted it, the Copyright Act's registration clause pertained only to proof of copyright. From the passage of the act booksellers had openly and successfully evaded the deposit requirement. See Feather, ‘The Publishers and the Pirates’, 5–6.Google Scholar

42 Most privileges were granted to protect newly composed ‘vocal and instrumental music’ before first publication. We are grateful to David Hunter for confirming this point.Google Scholar

43 No mention of the case is found under the following PRO class codes: C24 (Town Depositions), C31 (Affidavits), C33 (Entry Book of Decrees and Orders), C38 (Reports and Certificates) and C42 (Awards and Agreements). According to John Small (‘J. C. Bach Goes to Law’, 528), Bach v. Longman and Lukey was transferred from Chancery (a court of equity) to King's Bench (a court of common law) because Chancery did not have jurisdiction to interpret the Copyright Act. Yet a chancellor had done precisely that in ruling, in Pope v. Curll, that letters were protected by the statute. Throughout the eighteenth century, uncertainties as to the boundaries of jurisidiction between equity and common law made the legal system both slow and costly.Google Scholar

44 Parkinson, ‘Pirates and Publishers’, 20.Google Scholar

45 The London Daily Post, and General Advertiser, 24 May 1746. Quoted in Parkinson, ‘Pirates and Publishers’, 20.Google Scholar

46 The Public Advertiser, 27 January 1761. We are grateful to John Parkinson for bringing this advertisement to our attention.Google Scholar

47 PRO C12/2082/42, consisting of Pyle's two bills of complaint and Robert Falkener's answer. In his will, dated 2 August 1758, Walsh had named Pyle and Sir Francis Gosling, a banker and alderman of the City of London, executors of his estate. On the wills of both Walshes see William C. Smith, ‘John Walsh and his Successors’, The Library, 5th series, 3 (1949), 291–5.Google Scholar

48 This amended bill also cites a few additional works by Handel that are not present in the initial bill.Google Scholar

49 Pyle seems to have been accurate in his description of Falkener's publishing activities, as most of the works listed in Table 3 survive in editions by Falkener dating from about 1770. Not mentioned in the dispute are three other Handel works published by Falkener which also survive: ‘Oh sleep, why dost thou leave me?’ (Semele), ‘Cease thy anguish’ (Athalia) and the coronation anthem My heart is inditing, MWV 261. It is possible that these editions appeared after the bills were drafted, or that Pyle was unaware of them. For listings of Falkener's Handel editions sec Händel-Handbuch: Thematisch-systematisches Verzeichnis, ed. Bernd Baselt, ii (Kassel, 1984).Google Scholar

50 For the pasticcio Love in a Village, including 19 songs by Arne, the agreement was made two days before the first performance; for Judas Maccabaeus, Alexander Balus and Joshua the agreements were made on the day of the first performance; and for The Triumph of Time and Truth the agreement was made on the day following the first performance. The relatively late date of the agreement for Act's and Galatea may reflect a renewal or renegotiation of an earlier agreement.Google Scholar

51 The leaf, the origina! of which has not been traced, also lists the amounts and dates of payment for 13 Handel operas and his opp. 4 and 5; the usual amount paid to the composer for each work during the period 1721–38 was £26 5s. See Deutsch, Otto Erich, Handel: A Documentary Biography (London, 1955), 468.Google Scholar

52 The Water Piece, a five-movement suite for trumpet and strings, is of questionable authenticity. In addition to a manuscript copy in the British Library, the earliest sources for the work include editions by Daniel Wright (c. 1733; lost) and John Johnson (c.1740/45; printed from Wright's plates). A later edition by Charles and Samuel Thompson (c.1755; three movements arranged for harpsichord or piano) was reprinted by Falkener and others. The ‘overture’ to the work is the only movement common to both the Wright and Thompson editions. Händel-Hand buch, ed. Baselt, iii, 109–10; and Hallische Händel-Ausgabe im Auftrage der Georg Friedrich Händel-Gesellschaft, ed. Hans Ferdinand Redlich, iv/13 (Kassel, 1962), x.Google Scholar

53 All five depositions are found under PRO C24/1798.Google Scholar

54 Although the interrogatories are vaguely worded, referring only to ‘several paperwritings now produced’, it is virtually certain that the ‘paperwritings’ were in fact the Walsh copyright agreements.Google Scholar

55 Handel's signature on the agreement for The Triumph of Time and Truth would have been shaky owing to his total blindness. Smith, who acted as Handel's amanuensis during the composer's later years and may have been responsible for some of the oratorio additions of 1753–9, would have been uniquely qualified to identify Handel's latest handwriting. Aside from signatures on a letter and on the codicils to his will, there are no extant examples of Handel's writing after 1752. See Hicks, Anthony, ‘The Late Additions to Handel's Oratorios and the Role of the Younger Smith’, Music in Eighteenth-Century England: Essays in Memory of Charles Cudworth, ed. Christopher Hogwood and Richard Luckett (Cambridge, 1983), 147–69.Google Scholar

56 In two affidavits, the first given jointly with Pyle on 4 June 1771, and the second given alone on 8 June, Birchall had already revealed his involvement in less detail (PRO CS1/181/461 and C31/181/467). He appeared again at Chancery with Pyle on 15 July but made no statement.Google Scholar

57 As Birchall's age is given in the deposition as ‘22 years or thereabouts’, his date of birth can now be revised from c.1760 to 1750. See Kidson, Frank, William C. Smith and Peter Ward Jones, ‘Birchall, Robert’, The New Grove Dictionary, ii, 727.Google Scholar

58 The privilege, dated 31 October 1739, states that Handel had composed certain vocal and instrumental works ‘and hath authorised and appointed John Walsh … to print and publish the same’. Like statutory copyright, the rights which a privilege afforded were generally transferable to an assignee, an executor or an heir. Handel had been granted a privilege in his own name on 14 June 1720; it appeared in a number of Walsh editions, including those of Fiondante (1722), Ottone (1723) and Flavio (1723). Terence Best, ‘Handel's Harpsichord Music: A Checklist’, Music in Eighteenth-Century England, ed. Hogwood and Luckett, 171–87, suggests that Handel's privilege was taken out in response to Walsh's unauthorized edition of the Pieces à un & deux clavecins (1719). The texts of the two privileges are reproduced in Deutsch, Handel, 105–6, 488–9.Google Scholar

59 An excerpt from the privilege appears in Deutsch, Handel, 844.Google Scholar

60 PRO C31/181/472.Google Scholar

61 PRO C31/181/471.Google Scholar

62 PRO C31/181/469 and C31/181/470.Google Scholar

63 Falkcner claimed that the privilege violated the Statute of Monopolies of 1624 (21 Jac. 1, c. 3). As this statute did not apply to royal privileges issued for printing, Falkener's claim is unconvincing.Google Scholar

64 PRO CSS/440, f. 438.Google Scholar

65 On the role of natural law in Millar v. Taylor see Lieberman, David, The Province of Legislation Determined (Cambridge, 1989), 95–8. The voting of the 12 common-law judges in Donaldson v. Beckett, so often discussed in histories of copyright, is reinterpreted in Rose, Authors and Owners, 97–112, 154–8; and Howard B. Abrams, ‘The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright’, Wayne Law Review, 29 (1983), 119–91.Google Scholar

66 Rose, Authors and Owners, 101. Apsley was in fact voting to overturn his own injunction against Donaldson, which he had issued as a matter of course prior to a final determination of the copyright question by the House. See The Cases of the Appellants and Respondents in the Cause of Literary Property, Before the House of Lords (London, 1774), 55; and The Pleadings of the Counsel Before the House of Lords, in the Great Cause Concerning Literary Property (London, n.d.), 35; both reprinted in The Literary Property Debate: Six Tracts, 1764–1174, ed. Stephen Parks (New York, 1975).Google Scholar

67 PRO C33/442, ff. 309^v–311.Google Scholar

68 One common-law judge, Lord Mansfield, abstained, though he would surely have favoured the common-law right had he voted.Google Scholar

69 Rose, Authors and Owners, 104–7.Google Scholar

70 It may be significant that Falkener nowhere questions Handel's authorship of the oratorios, as he might have by pointing out that the texts were derived from such authors as Milton, Congreve, Ovid and Dryden.Google Scholar

71 The Rise of Musical Classics in Eighteenth-Century England: A Study in Canon, Ritual and Ideology (Oxford, 1992), 168.Google Scholar

72 Ibid., 248–51.Google Scholar

73 See Howard E. Smither, A History of the Oratorio, iii: The Oratorio in the Classical Era (Chapel Hill, 1987), 202–12; and Winton Dean, Handel's Dramatic Oratorios and Masques (London, 1959), 640.Google Scholar

74 Smither, A History of the Oratorio, iii, 214–20; and Weber, The Rise of Musical Classics, 124–30.Google Scholar

75 Hunter, As, ‘The Printing of Opera and Song Books in England’, 333–4, has noted, the use of engraved plates ‘transferred ownership of the printing medium from the printer to the publisher’. Unlike letterpress-printed books, in which each book was newly set, a music bookseller who employed engraved plates could maintain a ‘backlist’ of works that could easily be reprinted. It could be argued, of course, that in England the works of Purcell and Gorelli also remained profitable long after first publication. But in the case of these composers, no single bookseller claimed exclusive properly rights to their works.Google Scholar

76 Rose, Authors and Owners, 67.Google Scholar

77 See Walters, The Booksellers in 1759 and 1774', 303; and Collins, Authorship in the Days of Johnson, chapter 2. For a list of eighteenth-century pamphlets that discuss literary property see Ransom, Harry Huntt, ‘The Theory of Literary Property: 1760–1775’ (Ph.D. dissertation, Yale University, 1938), 306–8; and Rose, Authors and Owners, 159–64.Google Scholar

78 Rose, Authors and Owners, 91.Google Scholar