Fair Use Borrowing In Music Was the Norm Among Classical Musicians In the Eighteenth Century — Before “Nuisance” Lawsuits Began
Borrowing didn’t just occur randomly in music in eighteenth century England, it was standard practice, even for great composers the likes of Bach and Mozart.
Borrowing didn’t just occur randomly in music in eighteenth century England, it was standard practice, even for great composers the likes of Bach and Mozart:
[T]o this day when people hear the name Mozart, the image of Amadeus’ whimsically childish genius replete with glass-shattering cackle instantly comes to mind. Yet beyond the liberty Shaffer took with Mozart’s personality, two important exaggerations of his remain in our collective imagination: Mozart’s supposed abilities to both instantly conjure masterworks of the utmost ingenuity and then to perfectly dictate them from his head to staff paper in the form we now hear them. In fact, Mozart wasn’t only more workmanlike than many of us think, crafting numerous sketches and drafts of his pieces just like other composers. He was what you might politely call a “creative collaborator.” “Calling Mozart a plagiarist would be going too far; the musicians from within his theatrical community borrowed freely from each other as colleagues and partners who made livings off ticket sales. And it’s not uncommon for classical-music composers to quote one another; using age-old tunes…”[2]
During the eighteenth century, borrowing practices were so prevalent that borrowed music could be found in three out of four operas.[3] This is largely because traditional borrowing practices had long been regarded as a “composer’s liberty.” In fact, the practice of borrowing from old songs dates back to before the eighteenth-century.[4] Three hundred years ago, “[o]ne composer would rearrange, rescore or adapt another composer’s music;” it was even “considered flattering to have your work used by another composer.”[5] “In the 16th century, as earlier in the Renaissance, various kinds of borrowing had played an important part in the art of musical composition.” In fact, “to work from an earlier model was not only permissible, but commendable.”[6] Moreover, the reuse or recycling of older compositions in newer ones was mandatory:
The common nature of borrowing in music allowed eighteenth century English music publishers to play both sides, acknowledging wide-spread borrowing in music and using it as a defense to their unauthorized publications of composers compositions: “Implicit in the [music] publishers’ challenges to musical authorship” was “the view that old songs were free to be re-used in the creation of new ones and could be freely republished.”[7]
Composers in the eighteenth century held different views about the scope of borrowing from each other; nonetheless, all of them borrowed melodies, harmonies, and other compositional elements, as they saw it as fair game. However, the question of the scope of legitimate borrowing changed dramatically after Bach, as “originality” became a central conceptual concern. After Bach, with music having been brought under copyright, borrowing continued of course, but the views about borrowing started to stiffen. Bach regularized the means for obtaining and enforcing rights in music, and embolden by Bach, music publishers — who had quickly embraced music copyright as a means of protecting their profits, via registration at Stationers’ Hall — grew overprotective of the works that they registered and began a pattern of “nuisance” lawsuits against upstart music publishers whose printed works that contained only small parts of compositions that they owned the copyrights to.[8]
Sound familiar? Today, it’s music publishers and other music rights holders who demonize sampling the most. They are also among the main groups who push the sample clearance agenda, a misinformation campaign designed to get the public to believe that only samples that are cleared — ergo, only “borrowings” that are cleared — are legitimate.
What’s important to note here is that attitudes about borrowing shifted primarily because of the music publishing trade, not because of composers. Certainly, the explosive consumer growth — i.e. increased concerts, an increase in the number of new performance spaces, and the increased social value of music — also had an effect on how composers viewed borrowing. This prompted composers to center “originality” as the “principle criterion for value of any composer’s works.” Once music had been brought into copyright; once composers — especially those who published their works under their own imprints — had property to protect; and once composers had begun to establish social status on par with authors of literary works, their views on borrowing narrowed, and they began to place a deeper importance on the concept of originality.
Still, this wasn’t the main reason why composers began to focus on “originality” as the “principle criterion for value of any composer’s works.” The main reason why borrowing came to be considered especially “sinful” during the eighteenth century was due to the fact that “keen competition within the music publishing trade made it an economic issue.”[9] Music publishers had “suggested that authorship of music required a higher standard of originality to qualify for protection under any legal theory;”[10] this sentiment, along with the music publishers wave of “nuisance” litigation, is what led composers to become fixated on “originality.” Questions intensify in the nineteenth century and they continue to be debated to this day.
What’s critical to note is that fair use speaks to the kind of borrowing that was typical among the great classical composers of the eighteenth century, just as it is among sample-based beatmakers (producers) and so many other creatives today. Further, we must recognize that making music from pieces of music that was already made is not new; it was a common practice even among classical musicians in eighteenth-century London. What is relatively new, however, is using pieces of sound recordings (not only compositions). Given the classical musicians’ penchant for borrowing from one another, they too would have used pieces of sound recordings to make new music if the technology had existed in their time.
Notes:
2. Adam Baer, “Wolfgang Amadeus Copycat: Did Mozart plagiarize?” Slate (February 13, 2002) https://slate.com/culture/2002/02/did-mozart-plagiarize.html (emphasis mine).
3. Olufunmilayo B. Arewa, “From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context,” 84 N.C. L. REV. Note 312 » Note 269: “See, e.g., FISKE, supra note 105, at 274 (stating that borrowed music can be found in about three out of four operas after 1762); (forthcoming 2006) (discussing evolution of musical borrowing practices from eighteenth-century England to present).”
4. Michael W. Carroll, “The Struggle for Music Copyright,” 57 Fla. L. Rev 907, 934 (2005) 958.
5. UPI, “Musicologist says Mozart, Bach ‘borrowed’” UPI (May 31, 1985) https://www.upi. com/Archives/1985/05/31/Musicologist-says-Mozart-Bach-borrowed/4034036016018/.
6. Franklin B. Zimmerman, “Musical Borrowings in the English Baroque,” The Musical Quarterly, Vol. 52, No. 4 (Oxford University Press, Oct., 1966), 483.
7. Carroll, 955 (emphasis mine).
8. Ibid, 934, 946. See: Pyle v. Falkener, C33/442 London Public Record Office (1772), reprinted in Rabin & Zohn, supra note 163, at 144. Falkener alleged that Bickerstaff was the putative author of both Thomas and Sally (rather than Arne) and Love in a Village (co-authored with Arne). Id.
9. Franklin B. Zimmerman, “Musical Borrowings in the English Baroque,” The Musical Quarterly, Vol. 52, No. 4 (Oxford University Press, Oct., 1966), 484 (emphasis mine).
10. Carroll, 907, 934, 950. See Pyle v. Falkener, C33/442 London Public Record Office (1772), reprinted in Rabin & Zohn, supra note 163, at 144. Falkener alleged that Bickerstaff was the putative author of both Thomas and Sally (rather than Arne) and Love in a Village (co-authored with Arne). Id.: “Roberts and Johnson suggested that Arne may have only rearranged “some old Songs made by Shakespear [sic] and other Authors. Falkener similarly defended with respect to the Bickerstaff opera, claiming that he did not know of any ‘New Tunes or New Music’ that Bickerstaff had composed and instead he had relied on “Old Tunes which had been Used in Common by all persons for many years before the said Isaac Bickerstaff wrote the said Opera.”
