occasional essays on copyright, patent, and anything else that might catch my fancy
by Timothy R. Phillips
"Welcome, welcome, every guest..." Review of Awake, My Soul (2006) directed by Matt and Erica Hinton
Awake My Soul (2006), a film directed by Matt and Erica Hinton, is one of the most interesting and entertaining documentaries of recent years. It deals with shape-note singing, which, along with jazz and the blues, must be considered one of the most important components of our American musical heritage.
Shape-note singing, as the film makes clear, takes its name from the shaped notes (called "shape notes", "patent notes", or "buckwheat notes") that have been used since the early 1800s in the tunebooks containing this tradition's songs. Besides the shaped notes, the style is characterized by melodies frequently using pentatonic, hexatonic, and Dorian scales, and harmonies relying heavily on perfect intervals: unisons, fourths, fifths, and octaves. Many, though not all, of the songs are fuguing tunes, a form which originated with the country singing masters of mid-18th century England, but reached some of its finest expressions in the work of the American composer William Billings (1746-1800) and in the shape-note books.
The shape-note tradition began with the "regular singing" movement in early 18th century New England, which was contemporary with the spread of choral singing in English village churches. In America, as in England, once singers had learned to sing psalms "by note", that is, according to the pitches and rhythms of the written notes, rather than in the extremely slow, arrhythmic style that had prevailed since the 17th century, they became interested in singing more complex music. The singing-masters of rural England and New England stepped in to meet the demand, publishing tune books and traveling from town to town to teach from their books. In time, the practice spread from New England to many parts of the United States. Singing schools became important social gatherings, and even remote districts might have them:
In the Fall of 1838, the young people of the neighborhood prevailed upon Col. Hardman to open a "singing school," that they might have an opportunity of cultivating their vocal abilities. He yielded to their solicitations, and turned his cabin into a music hall. The books in use at that time were known as the Missouri Harmony, and once a week the young people came from their homes in every direction to "take music lessons." This school was kept up for four years, during which time his scholars became very adept readers of "buck-wheat" notes, and in the use of their voices. Neither the boys nor the girls were afraid to open their mouths, and when they undertook to render old Pisgah, New Topia, Coronation, Windham, Easter Anthem, Greenfields, or any other of the old time favorites, they awoke the forest echoes, and awed or shamed into silence the birds that sang in the adjacent groves.The shape-note style, and the practice of "singings", or "singing schools", continues to this day. It is a diverse tradition. A number of singing schools in Eastern Tennessee sing from the book called The New Harp of Columbia. The annual singing in Benton, Kentucky, uses The Southern Harmony. Some singing schools in western North Carolina and elsewhere sing from The Christian Harmony. The film Awake, My Soul ignores all these, however, and concentrates on singing schools in Alabama and Georgia that use what is known as the Denson Revision of The Sacred Harp.
--The History of Cedar County, Iowa, Western Historical Company, Chicago, 1878, p. 330. The writer's memory is not completely accurate, for Coronation did not appear in the editions of the Missouri Harmony that were available in the years 1838-1842.
The melody now called Hanover, from the 24th edition (1737) of the Bay Psalm Book
The film also describes how the indigenous musical idiom represented by the shape-note books was driven out of the Northeastern U.S. cities under the influence of the European-influenced school of Lowell Mason, while it continued to be cultivated in the southern and western territories. But this too is not quite the whole story. The mid-century shape-note books include several of Lowell Mason's own tunes, such as Azmon and Uxbridge. (This is mentioned in passing in the commentary track to the film.) So the shape-note tradition itself contained a range of musical styles, not just that of turn-of-the century New England psalmody. And even in the eastern cities, Mason's school did not drive out all memory of the earlier tradition. A handful of the tunes that had arisen in the northeastern singing schools continued to be printed outside of the shape-note books. Examples include Oliver Holden's Coronation, as well as Nettleton, which had first appeared in Wyeth's Repository of Sacred Music, Part Second (1813), and William Billings's Jordan. Besides this, the 1830s saw the formation of the Boston Billings and Holden Society. (The name was a retort to the Boston Handel and Haydn Society.) The 1850s saw the first of the "Old Folks Concerts". These activities kept the older style alive in the country of its origins, even if only as a musical curiosity.
St. Anne, from A Collection of Psalm Tunes with a few Anthems and Hymns (Philadelphia, 1763)
Good morning to all
In a recent paper, "Copyright and the World's Most Popular Song" (SSRN #1111624), Robert Brauneis of the George Washington University Law School has examined the copyright history of the well-known song "Happy Birthday to You," and concludes that is is doubtful whether "Happy Birthday to You" is truly under copyright. In particular, he believes that the 1963 renewals of the 1935 copyrights in arrangements of the song were defective: The renewal applications did not properly identify the author of the familiar words, "Happy birthday to you, etc.," nor did they identify the author of the association of the words with the melody. Hence they were sufficient to renew copyright in the particular musical settings, but not to renew copyright in the familiar words, or in the association of those words with the old tune Good Morning to All.
But as Brauneis himself recognizes, the asymmetry in the market for copyrighted works, in which the costs are spread thinly over many users of copyrighted works, means that seldom has anyone a sufficient interest in finding a copyright invalid to challenge the copyright. The copyrights in the 1935 arrangements of Happy Birthday to You are owned by the Warner Music Group. The copyright in these arrangements are the basis of all copyright claims made on behalf of the song since 1949, when the copyright in the song "Good Morning to All" expired. The film industry has become accustomed to paying the copyright holder for use of "Happy Birthday to You" in films, or using a substitute. Presumably they deem it cheaper to buy a license than to litigate the issue. Restaurants have become accustomed to forbidding the use of the song on unless they have an ASCAP license. That the song might be validly copyrighted, and that the validity of its copyright will be defended by the deep pockets of the Warner Music Group, is enough to make the claim of copyright effective in practice, even if it is invalid in theory.
Brauneis concludes his paper with the observation that one effect of long copyright terms is to make it difficult to trace the history of a copyrighted work:
As the term of copyright gets longer, more and more disputes about ownership and validity will turn on the presence or absence of evidence about events that occurred many decades ago, and much of that evidence will itself be decades old. Some of the difficulties will not be easily resolved. When not only the authors, but their younger acquaintances and one or more generations of their descendants are no longer alive at the time a dispute arises, little relevant live testimony will be available.This observation is not new. I wrote essentially the same thing over ten years ago in an essay on the (then proposed) Copyright Term Extension Act:
By keeping copyrighted music close in time to its origins, a moderate term of copyright reduces the level of uncertainty about the copyright status of music. Copyright-related disputes about the origins of music are less likely to arise, and more likely to be resolved fairly, if the term of copyright is not too long. Furthermore, a moderate term means that copyright clearance for validly copyrighted music will be less likely to be made difficult by complex multiple assignments and fragmentation of the rights.Braundeis, however, fails to reach the obvious conclusion: the solution to the problems created by long copyright terms is to reduce the term.
These essays copyright (c) 2008 by Timothy R. Phillips. They may be reprinted freely as long as the text is unchanged and this notice is included.
In praise of creative freedom 3: "Joined to the heavenly company"
Around the year 1100, an unknown English (or perhaps Cornish) musician wrote down, in alphabetic notation near the top of the page (now called "folio 49 verso") of an old book (now called Bodleian Library MS Bodley 572) that happened to be at hand, a two part setting of part of a hymn in honor of Saint Stephen, the first Christian martyr. The hymn, which had been known in England at least since the days of Edward the Confessor, has as its first six lines
Sancte Dei pretiose protomartyr Stephane
qui virtute caritatis circumfultus undique
Dominum pro inimico exorasti populo,
funde preces pro devoto tibi nunc collegio
ut tuo propitiatus interventu Dominus
nos purgatos a peccato iungat caeli civibus.
The 12th-century writers setting begins with the words ut tuo proptitiatus in the fifth line. This was deliberate. The preceding lines on the same page of the manuscript are the final lines of a Latin poem in a different meter from that of Sancte Dei pretiose. The following lines are musical settings in neumes, a different form of musical notation from the alphabetic notation employed by our author. Our author clearly intended to set exactly two lines of the poem, beginning with the words ut tuo propitaitus. Since this begins in the middle of a sentence, it was probaly only part of a setting of the whole hymn, or at least the first six lines. The preceding lines presumably were sung in plainsong,
An idea of the ceremonial context that the music was intended for is suggested by the customs of Salisbury Cathedral in Wiltshire, England. The 13th century document called by scholars the Salisbury Consuetudinary states
In die Natali Domini,...ad secundas vesperas,....finito primo Benedicamus, omnes diaconi, ab altari Sancti Nicholai processionaliter in cappis sericis accensos cereos deferents, per medium chori ad altare Sancti Stephani accedant; et ibi, cantato responsorio, et finita memoria de Sancto Stephano, iterum processionaliter aliquid responsorium de Sancta Maria cantantes in chorum redeant.
On Christmas Day, at the second Evensong, after the first Benedicamus, let all the deacons go in procession from the altar of St. Nicholas, through the middle of the choir, to the altar of St. Stephen, clad in silken capes and bearing lit candles. And there, having sung the responsory, and completed the memorial of St. Stephen, return in procession to the choir singing som responsory of St. Mary.
The Consuetudinary doesnt mention our hymn by name, but the hymn is mentioned in another Salisbury manuscript, of the early 14th century, called by scholars the Ordinale Sarum:
Die Natalis Domini.....Ad vesperas....Tunc conveniant omnes diaconi in capis sericis portantes cereos ardentes in manibus et eant processionaliter ad altare beati Stephani quodam diacono incipiente hoc responsorium, Sancte Dei. Tres diaconi dicant versum ut tuo.
A still later source, the Salisbury Processionale of 1555, describes the same procession and give the full words and music.
On Christmas Day....at Evensong...Then let al the deacons gather in silken capes, carrying lit candles in their hands, and go in procession to the altar of the blessed Stephen, with one of the deacons beginning this responsory, Sancte Dei. Then let three deacons sing the verse, Ut tuo.
These three Salisbury sources are all much later than our 12th-century writers time. Yet a comparison of our writers cantus firmus, the lower part of the two-part setting, to the melody of the 1555 Graduale shows that the Cornish writer knew the same words to the same or a closely similar melody.
Listen to the music here:
The 12th-century writers music, interesting in itself, is doubly interesting for what it reveals about the creative process. The text of Sancte Dei pretiose was of course written by someone. According to scholar Inge B. Milfull, it has been ascribed to Eusebius Bruno, bishop of Angers (d. 1081). (The Hymns of the Anglo-Saxon Church, Cambridge University Press, 1996, page 207.) If the attribution is correct, the words must have come to England while their author was still alive, for they are found in three mid-eleventh century English manuscripts. The author, whether Bruno or someone else, apparently intended the words as a hymn. This is how the mid-11th-century manuscripts classify it. Hymns, then as now, were sung to strophic melodies, each stanza being sung to the same tune. Yet the music written down by our 12th-century author shows clearly that by then, someone had taken the hymn and turned it into a responsory, a musical form ordinarily used for non-metrical texts, though versified responsories are not unknown. Moreover, casting it into this form modifies the relationship of the music to the flow of the text. A responsory is divided into a respond, sung by the whole choir (though a cantor might start it off) and a verse, sung by a soloist or small group. The song is completed by a repetition of the respond, either in full or (in this case) in part. So the singers of the 1555 version would have sung in this way:
Sancte Dei pretiose protomartyr Stephane
qui virtute caritatis circumfultus undique
Dominum pro inimico exorasti populo,
funde preces pro devoto tipi nunc collegio,
ut tuo propitiatus interventu dominus
nos purgatos a peccato iungat caeli civibus.
funde preces pro devoto tibi nunc collegio.
ending the song on fourth line, rather than the last. The unknown musicians who turned this hymn-text into a responsory-text apparentlly felt no qualms about the original authors intent for his text. They kept the text intact, but gave it a musical treatment that the original author may never have intended. The twelfth-century author takes the process a step further, recording a two-part musical setting for the verse of the responsory. So the unknown singers who turned the hymn into a responsory expressed themselves using borrowed words. Brunos (or whoevers) words spoke for them in the procession to St. Stephens altar. Nor was the music that they sang all their own invention, for it contains a number of stock musical formulas found in other responsories of the first church mode. Our twelfth century author then took their work, made of borrowed words and partly borrowed music, and wrote down more music for it, whether his own or some others. Once again, other peoples speeches became the speech of our author, and was meaningul enough that our author wrote it down in an age when most music was unwritten.
The technique recorded by the 12th-century author, of writing a second contrapuntal part to a plainsong cantus firmus, had already a long history behind it. The mid-eleventh-century manuscript Corpus Christi College Cambridge MS 473, one of the manuscripts of the so-called Winchester Troper, has a set of Organa ad Alleluia, second parts to be sung with together with the plainsong melodies to the word Alleluia.
The same technique, of using a plainsong melody as the basis of part-music, would have a longer and even more distinguished history ahead of it. Motets would be written based on a "tenor", a fragment of a plainsong melody. Entire settings of the ordinary of the mass would be written based on plainsong melodies or popular airs. And this cantus firmus firmus technique covers only a part of the wide range of musical and literary borrowing techniques that have been applied to the music of divine services. New melodies would come into use for traditional texts. New texts would be written for traditional melodies. Traditional texts would be modified in the course of time to suit new tastes.
This matters because of a passage in the U.S. Supreme Court's opinion in the case of Eldred v. Ashcroft. Writing for the divided court over sharp and insightful dissent by Justices Breyer and Stevens, Justice Ruth Bader Ginsburg made the following snide remark:
The First Amendment securely protects the freedom to make--or decline to make--one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them.
Yet no freedom is closer to the heart of the First Amendment than freedom of worship. And worship, in the traditions of the West, is all about making other people's speeches, whether the speeches of the Scriptures, or the saints, or of hundreds of known and unknown authors of hymn-texts and melodies. We may never know who wrote the six lines of words and music to Ut tuo propitiatus on folio 49 verso of MS Bodley 572. The two-part setting which that author recorded seems to have been quickly forgotten until it was rediscovered by 19th-century scholars. The work of those who cast the text of Sancte Dei pretiose in the form of a responsory (as distinguished from a hymn, which seems to have been the original intent of the text's author) lasted longer, though it was swallowed up, at least in England, by the collapse of the Latin rite and the establishment of Anglicanism. But the processes that their work testifies to continue. Worshipers, if no one else, continue to make other peoples' speeches day by day and week by week. "Other peoples' speeches", that is, from the standpoint of historical chronology. But they make the speeches their own by their loving devotion. All this is made possible by the legal freedom now known as the public domain, though other words have been used for it over the years: the freedom to make others' speeches one's own. :This is the same freedom which the Court's opinion in Eldred v. Ashcroft dismisses with scorn. Yet it it a freedom priceless beyond measure to those who enjoy it.
The Queen's government shows some spine
According to a report by Reuters, the government of the U.K. has refused to back an extension of the term of copyright in sound recordings. The music industry is of course disappointed. The article quotes Geoff Taylor, "chief executive of the BPI, which represents the British recorded music industry", as saying, "we will continue to put forward the strong case for fair copyright in Europe." This is possibly code meaning that the recording industry intends to take the back-door approach of getting the copyright term for phonograms extended in the European Union, then forcing the international agreement down the British peoples' throats.
The article quotes John Kennedy of the International Federation of the Phonographic Industry (IFPI), as stating that, due to the impending expiration of copyright in phonograms from the late 1950s, "some of the greatest works of British music will soon be taken away from the artists who perfomred them and the companies that invested in them." This is, of course, silly. A copyright is a monopoly in derogation of public right. It was the public, not the recording industry, that had something of theirs "taken away" from them by the existence of the copyright. Theoretically this was done for a public purpose, and with the public's consent. But now that the industry has had its fair term of exclusivity, it is time for the public to regain its full rights to buy, sell, and use those recordings in a partially-free market. "Paritally", because in many cases the music on the sound recordings remains under copyright even after the copyright on the recording itself has expired, complicating the public's ability to make use of the recordings. The music barons point to this difference between the European term for the exclusive rights in sound recordings, on the one hand, and the term of copyright in the music itself, on the other, and wail that the term for sound recordings needs to be increased to be comparable to that of the copyright in music. But the true lesson is that the term of copyright in the music is too long, and needs to be reduced to something closer to that of the term of the right in sound recordings.
These essays copyright (c) 2007 by Timothy R. Phillips.
They may be reprinted freely as long as the text is unchanged and this
notice is included.
|This picture, from an English medieval illuminated manuscript, was reproduced in Alexander Speltz's Styles of Ornament, Tranlated from the Second German Edition by David O'Conor, E. Weyhe, New York, 1910, Plate 55, #19, whence it is reproduced here. This image is in the public domain in the U.S.A. and should be copied and reproduced with gleeful abandon.|