Carte v. Evans
| Decision Date | 21 June 1886 |
| Citation | 27 F. 861 |
| Parties | CARTE v. EVANS and others. |
| Court | U.S. District Court — District of Massachusetts |
Causten Browne, for complainant.
Prentiss Cummings, for defendants.
This case was heard in February last, but the decision has been delayed to enable the parties to complete certain proofs which were found to be necessary for its proper determination, and it is only recently that it has been in a condition to be finally disposed of. The suit is a bill in equity for an injunction to restrain the infringement by the defendants of the plaintiff's copyright in an arrangement or adaptation for the piano-forte of the orchestral score of an opera called 'The Mikado, or The Town of Titipu. ' It appeared that William S. Gilbert and Sir Arthur Sullivan both British subjects resident in London, were the authors and composers of a comic opera entitled 'The Mikado, or The Town of Titipu,' the words of the opera being the work of Gilbert, and the musical parts, being composed by Sullivan. It was admitted that the orchestral score of the opera has always remained in manuscript, or in print only for the use of the performers, and has never been published, either in this country or in England. The piano-forte arrangement for which the plaintiff holds a copyright was composed by George Lowell Tracy, a professional composer and arranger of music, residing in Boston, and a citizen of the United States. The work of composition was performed by Tracy, in London, under an agreement made by him with Gilbert and Sullivan, and with the plaintiff, who is the representative of their interests in this country, the latter being also a British subject resident in London, that a copyright of the piano-forte arrangement, when completed should be taken out in this country by Tracy, and transferred to the plaintiff. For his part of the work Tracy was paid a salary. After the completion of the work, with the consent of Tracy and the plaintiff, a copyright was taken out here in the name of Alexander P. Browne, a resident of Boston, and a citizen of the United States, acting as the attorney for all the parties, and was afterwards, with Tracy's approval assigned by Browne to the plaintiff. The original orchestral score, as composed by Sullivan, was, of course, designed to be played by numerous performers, and on a great number and variety of musical instruments, ranging in compass from the highest to the lowest; and Tracy's work consisted in reducing, condensing, and reconstructing a score composed for a full orchestra of wind and stringed instruments, and producing from it a score that could be played by a single performer on an instrument of the limited capacity of the piano-forte. The Tracy arrangement was intended to be played as an accompaniment to the vocal score, and in that respect to take the place of the orchestral score, as played when the opera was given on the stage.
That an arrangement for the piano-forte of the orchestral score of an opera, such as Tracy has produced, is an original musical composition, within the meaning of the copyright law, is well settled. In executing such a work the ideas of the composer of the opera cannot be wholly reproduced, and other ideas, more or less resembling them, or wholly new, have to be substituted and added. To do such a work acceptably required musical taste and skill of a high order, and a thorough knowledge of the art of musical composition, and especially of instrumentation. No two arrangers, acting independently, and working from the same original, would do the work in the same way, or would be likely to produce the same results, except so far as they might both resemble the original. An arrangement of this character would undoubtedly be a piracy of the original opera, unless the arranger has in some way acquired the right, the arrangement is substantially a new and distinct composition, and as such is entitled to the protection of the court. Wood v. Boosey, L.R. 2 Q.B. 340; affirmed, L.R. 3 Q.B. 223; Boosey v. Fairlie, 7 Ch.Div. 301; affirmed, 4 App.Cas. 711; Thomas v. Lennon, 14 F. 849, Drone, Copyr. 176.
Tracy's work was done with the consent of the original composers of the opera, and in their interest. There is nothing in our copyright law to prevent one of our own citizens from taking out a copyright of...
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