telae tabulae

occasional essays on copyright, patent, and anything else that might catch my fancy
 by Timothy R. Phillips

August 3rd, 2008
(Gregorian Lunar Almanac 2008.9th Moon.1st Day)(longish-term link)

"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 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 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 film refers to the shape-note songs as "the earliest music in America", but this is not quite right. The earliest music in English North America would be the metrical psalms, carols, hymns, and popular songs of Elizabethan England. Metrical psalmody continued to evolve into the mid-1700s and beyond. The shape-note tradition derives from metrical psalmody, but it is not metrical psalmody's only offshoot. Some of the metrical psalm-tunes, and some other hymn-tunes of the mid-1700s, have never been completely abandoned even outside the shape-note tradition. Examples of these early psalm and hymn-tunes, besides the ubiquitous Old Hundredth, include the tune now known as Hanover (called by different names in the 18th century), Orlando Gibbons's Song 34 (called Angel's Hymn in the 18th century), St. Anne, and Aylesbury. It is these old psalm tunes which can credibly claim to be the oldest melodies in continuous use in English North America.

The melody now called Hanover, from the 24th edition (1737) of the Bay Psalm Book

St. Anne, from A Collection of Psalm Tunes with a few Anthems and Hymns (Philadelphia, 1763)

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.

As the film notes, the singing schools began as a way to improve church music. They soon became ends in themselves, however, and have remained so. It is the singing-schools as ends in themselves that are the focus of the film's attention. Some viewers, however, having been told the origin of the singing schools, might wonder whether they ever succeeded in their original aim. The film never addresses this question, and only very briefly touches on the closely-related question of whether any of the songs sung in the singing schools are sung at the time of worship in any churches. These questions can be answered affirmatively. Singing from books of musical notation, singing the pitches and rhythms more or less as they are written, has become very common in American churches that permit singing. Singing memorized tunes from text-only hymnals survives in a few places, as does the old practice of lining-out. But "regular singing" as it was called in the 1720s, has become the rule. This is not due to the singing schools only. The formation of choirs and the introduction of organs also must bear some of the credit. But the schools were an important part of the evolution from the "old way of singing" to the newer. Similarly, many tunes from the shape-note books are sometimes used in American Christian worship, even where the shape-note books themselves are not. A 1976 study (Brett Sutton, "Shape-Note Tune Books and Primitive Hymns," 26 Ethnomusicology, January 1982, pp. 11-26) of Primitive Baptist worship in the Blue Ridge Mountains found many of the shape-note tunes in use in churches that did not use noted hymnals. The worshipers sang the melodies from memory in church. The melodies must have been learned ultimately from the shape-note books, or from singing schools. And some modern round-note hymnals also include shape-note melodies, even if they do not include the shape-note harmonizations. The Episcopal Church's Hymnal 1940 had four melodies that could be considered shape-note airs: Land of Rest, Light, Morning Song, and Pleading Savior. The same denomination's more recent Hymnal 1982 has nineteen shape-note melodies, two of which--Wondrous Love and Star in the East--have as an alternative harmonization the setting from the Southern Harmony (1854), except that the Hymnal 1982 puts Wondrous Love explicitly in the Dorian mode, as it is traditionally sung, rather than in the Aeolian mode, as it is printed in the pages of the Southern Harmony. The shape-note tradition, then, consistent with the original aims of the singing school movement, continues to have an influence on church music sung outside the walls of the singing schools themselves.

The middle section of Awake, My Soul documents the spread of shape-note singing from its Southern homeland in the 1970s and 1980s. In something like a reprise of the early days of the singing-school movement, experienced singing-school teachers from the South journeyed to other states to introduce the music to those not familiar with it. (Some humorous out-takes included with the "Two-disk special edition" describe the Southern teachers' reactions to Northern food.) Northerners also came south to experience the tradition in an environment where it was deeply rooted. Among those interviewed for the film are Ted Mercer, a singer from Chicago who describes how he came to the shape-note tradition in the 1980s. The film gives the impression that the Southern tradition of top-of-the-lungs singing has been widely adopted outside the South. And the film does not question the assumption that this style of delivery is the only right way to sing this music. One singer states that he doesn't want a certain hymn sung at his funeral unless there are forty or fifty singers present, enough "to do it justice." This rather narrow view of appropriate performance practice must be considered one of the tradition's weaknesses. One advantage of the robust vocal harmonies favored by the shape-note tradition are their adaptability to varied styles of singing.

Some technical weaknesses in the film also deserve comment. The attempt to demonstrate the "old way" of singing is too brief to be informative to anyone who doesn't already know what the old way was. (A good discussion can be found in Nicholas Temperley's Music of the English Parish Church, Cambridge University Press, 1979.) On two occasions the film shows shots of suburban houses. These are interviewees' houses, but this is never made clear except in the commentary track. In the film proper these frames seem to come from nowhere and go nowhere. Another incongruous segment occurs with narration describing shape-note music as "resembling the American landscape-wild and untamed." Yet the segment shows a cornfield, which by definition is land that, because it is being cultivated, is no longer "wild and untamed". The discussion of the history of solmization includes a shot of an illuminated manuscript showing the Gregorian chant melody Ut queant laxis. Unfortunately, the particular version of Ut queant laxis shown in the manuscript does not have each phrase beginning with the next higher note of the Guidonian hexachord--which is precisely the feature of the melody that is being described at that point in the film. In fact there were several melodies used for Ut queant laxis in the middle ages. The one Guido of Arezzo described in his letter to Michael is not the one shown in the manuscript page (Poissy Antiphonal folio 412 recto) in the film.

The film's sound track, arguably the most important feature of a documentary on music, is uniformly good throughout the film. The interviews are well-edited to make the on-screen comments concise and focused. The "Two disc special edition" includes additional clips and outtakes; the one containing an extended discussion of the history of The Sacred Harp is especially informative. Besides these, the "Two disc special edition" includes around two hours' worth of takes of singers singing shape-note songs. Those who love the music of this tradition may want to view these clips as often as the film itself.

The film's trailer, itself a sharp piece of filmmaking, can be viewed on YouTube:

July 30th, 2008
(Gregorian Lunar Almanac 2008.8th Moon.26th Day)(longish-term link)

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.

Since Brandeis concentrates on the history of Happy Birthday to You, he doesn't spend much time on other aspects of Song Stories for Kindergarten, the book by the Hill sisters, Mildred and Patty, in which the air Good Morning to All first appeared. The contents of the "New Edition, Revised, Illustrated, and Enlarged" of this interesting book can be found at

The version at bears a copyright date of 1906. However, I cannot find any difference between it and the edition of 1896, other than the address of the Clayton F. Summy Company. The 1896 edition gives the address as 220 Wabash Avenue, while the 1906 edition has 64 East Van Buren Street. Hence it is not clear to what, if anything, the 1906 copyright reaches.

One important feature of the Hill sisters' book is its use of musical and literary borrowing. The title page clearly states that the music is composed and arranged by Mildred Hill, the words written and adapted by Patty Hill. Of the 81 songs in the 1896 edition, fully 26, or 32%, have their melodies borrowed from other sources. (The famous "Good Morning to All" is, however, not one of these. If Mildred Hill borrowed from other works in writing it, she did not do so consciously. As Brandeis notes in his paper, the songs that have in the past been alleged as sources of the melody Good Morning to All do not resemble it very closely.) W. A. Mozart is the named composer most often laid under contribution (6 songs), in Song Stories for the Kindergarten, while folksongs, folk dances, and an "Old Melody" provide the melodic material for 10 songs. The remaining 10 works acknowledging borrowed material attribute their melodies to the the following composers, one of whom (Brahms) was still living at the time the book was first published in 1893!

Heinrich Albert (1604-1651)
Johannes Brahms (1833-1897)
Friedrich Heinrich Himmel (1765-1814)
Conradin Kreutzer (1780-1849)
Albert Gottlieb Methfessel (1785-1869)
Wenzel Müller (1767-1835)
Hans Georg Nägeli (1773-1836)
Johann Gottlieb Kar Spazier (1761-1805)
Ernst Wilhelm Wolf (1735-1792)
Carl Friedrich Zelter (1758-1832)

Patty Hill was an accomplished composer, and one of her musical accomplishments was the ability to apply the venerable techniques of musical borrowing.

Several of the texts are attributed to authors besides Mildred Hill, though, again, the famous "Good Morning to All" is not one of these.

George Cooper is acknowledged as the author of the words to "The Fall Leaves"
Alfred Tennyson, of the words to "Baby's Waking Song"
Jane Taylor, of the words to "Twinkle, Twinkle, Little Star"
The words to "Moon Song" are stated to be adapted from words by Kate S. Kellogg, printed in a book titled Songs for Little Children.
The words to "The Story of the Butter" are stated to be adapted from "Mowing Song," also in Songs for Little Children
Ann Taylor is acknowledged to be the author of the words to "The Children and the Sheep"
The words to "Bye Baby Bye" are attributed to "Author Unknown".

The words to "Moon Song" are an interesting case. They are, as the Hill sisters state, adapted from words by Kate S. Kellogg. The words by Kellogg, however, are themselves probably a paraphrase of a German original by Friedrich Froebel (1782-1852), Das Kind und der Mond, making Patty Hill's version a follow-on version of a follow-on version.

So here again is an example of talented authors making good use of literary and musical borrowing to round out their work.

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.

August 18th, 2007
(Gregorian Lunar Almanac 2007.9th Moon.5th Day)(longish-term link)

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 writer’s 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, 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 doesn’t 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.

On Christmas 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.
A still later source, the Salisbury Processionale of 1555, describes the same procession and give the full words and music.

These three Salisbury sources are all much later than our 12th-century writer’s time. Yet a comparison of our writer’s 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 writer’s 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,

Three deacons:
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 author’s 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. Bruno’s (or whoever’s) words spoke for them in the procession to St. Stephen’s 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 other’s. Once again, “other people’s 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.

July 24th, 2007
(Gregorian Lunar Almanac 2007.8th Moon.9th Day)(longish-term link)

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 wording is unchanged and this notice is included. 

November 23, 2005
(Gregorian Lunar Almanac 2005.12th Moon.21st Day)(longish-term link)

Weary me not-2

Every year, someone, somewhere, repeats the facts I am about to repeat. And every year, it seems as though no one is listening. Nevertheless I've decided to take my turn writing a brief historical background to the American Thanksgiving festival.

Religious controversies in 16th- and 17th- century Europe included controversies about the calendar. Some of those who rejected the Roman Pope's jurisdiction continued to include many traditional elements in their worship, including the traditional Christian year. But others rejected the Christian year. The only ordinary holy-day they admitted was Sunday. These latter included some English Christians who had been influenced by Calvinist teachings. Richard Hooker, in his defense of the Book of Common Prayer, describes their school of thought:

[Holy-days other than Sunday] they say we ought to abolish, because the continuence of them doth nourish wicked supersition in the minds of men, besides they are all abused...[Furthermore] it is not they say in the power of the Church to command rest, because God hath left it to all men at liberty that if they think good to bestow six whole days in labor they may, neither is it more lawful for the Church to abridge any man of that liberty which God hath granted, than to take away the yoke which God hath laid upon tham and to countermand what he doth expressly enjoin. They deny not but in times of public calamity, that men may the better assemble themselves to fast and pray, the Church "because it hath received commandment" from God to proclaim a prohibition from ordinary works, standeth bound to do it, as the Jews afflicted did in Babylon. But without some express commandment from God there is no power they say under heaven which may presume by any decree to restrain the liberty that God hath given.
--Richar Hooker, Laws of Ecclesiastical Polity 5.70, 5.71
If Hooker's description is accurate and complete, then his opponents taught that the only days of religious observance that church authorities could require of the congregation, other than Sunday, were extraordinary fasts "in times of public calamity". Their proof-text appears to have been Joel 1.14: "Sanctify a fast, call a solemn assembly. Gather the elders and all the inhabitants of the land to the house of the Lord your God; and cry to the Lord."

The English Puritans who migrated, chiefly from East Anglia, to New England beginning in 1629 tended to hold a doctrine similar to this. The developed form of the theory is described by the the Massachusetts divine Cotton Mather (1663-1728):

No time is to be made holy to the Lord, but what is made holy by the Lord; and if there be no institution of God, the great Lord of time, for a stated time, to be made holy to himself, 'tis a superstition in any man to make it so. Very sensible is the difference between taking a time to do a sacred work, and doing a work to keep a stated time. The light of nature tells us there must be a time for every work; but it is only the fourth commandment of God, that separates one time from the rest, for the constant performance of religious work upon it...Solemn humiliations and thanksgivings are moral duties to be observed pro causis et temporibus. And the direction of Divine Providence in laying before us fresh occasions of them, is to be regarded; which cannot be done if they be made perpetual.
--Cotton Mather, Magnalia Christi Americana
Thomas Hutchinson (1711-1780), writing sometime after Mather, shows the developed application of this theory:
[The settlers of New England] laid aside the fasts and feasts of the Church of England, and appointed frequently, as occasion required, days of fasting and thanksgiving; but, besides these occasional fasts and thanksgivings, they constantly, every spring, appointed a day for fasting and prayer, to implore the divine blessings upon their affairs in the ensuing year; and in the fall, a day of thanksgiving and public acknowledgment of the favors conferred upon them in the year past. If they more readily fell into this practice from the example of the people of God of old, yet they might well have been justified without any example. It has continued without interruption, I suppose, in any one instance, down to this day.
--Thomas Hutchinson, The History of Massachusetts
So in addition to the fasts and thanksgivings proclaimed "as occasion required", the people could rely on having one fast in the spring and one thanksgiving in the fall in any case. Since people always have something to pray for and to give thanks for, they could always state "occasions" even for these two expected festival-days. In this way they got around the prohibition against anniversary holidays while still having two observances "constantly" that they could expect to return every year in season. Both Mather and Hutchinson agree that there was never a perpetual anniversary memorial, year after year, of paraticular providences, blessings, or events long past. The fasting days were set aside as days on which to pray for present mercies. The thanksgiving days were set aside specifically to give thanks for recent providences, though it would not necessarily have been thought inappropriate to call to mind long-past providences also.

Richard Hooker, in the 16th century, knew of self-styled reformers who believed that ecclesiastical authorities could rightly proclaim public fasts. By sometime in the 17th century, some of those who rejected the traditional Christian Year were teaching that church authorities could proclaim days of thanksgiving as well as days of fasting. The lack of thanksgivings in Hooker's description is of interest, but can be put to one side. The East Anglian Puritans who dominated the cultural life of Massachusetts and Connecticut clearly had the custom of proclaiming both public fasts and public thanksgivings.

These fasts and thanksgivings were matters of public record, and so we can find in the public records how the New Englanders implemented the theory that holy-days other than Sunday should be proclaimed only for stated occasions. In June 1632, the Boston Court of Assistants,

Taking into consideration the greate mercy of God, vouchsafed to the churches of God in Germany and the Pallattinate, etc. hath appoyncted the 13th day of this present moneth to be kept as a day of publique thanksgiving throughout the severall plantacions.
--Nathanieel B. Shurtleff, Ed., Records of the Governor and Company of the Massachusetts Bay in New England, Volume 1, Boston, 1853, page†96.
Similarly on August 5th, 1634
It was ordered, that Wednesday, the 20th of this moneth, shallbe kept as a day of publique thanksgiveing throughout the severall plantacions, for the safe arrivall of shipps and passengers this summer, etc.
--Shurtleff, Records of..the Massachusetts Bay, Vol 1. page†123.
The previous Fall, the Court held at Boston on October 1st, 1633
In regard of the many & extraordinary mercyes which the Lord hath beene pleased to vouchsafe of late to this plantacion, viz, a plentifull harvest, ships savely arrived with persons of spetiall use & quallity, etc., it is ordered, that Wednesday, the 16th day of this present moneth, shalbe kept as a day of publique thansgiveing through the severall plantacions.
--Shurtleff, Records of..the Massachusetts Bay, Vol 1. page 109.
The later distinction between thanksgiving for particular blessing, and thanksgiving for all the blessings of the preceeding year doesn't appear clearly in the words these statements themselves. All three orders state particular blessings for which thanks will be given. But the order for the October thanksgiving lists more occasions than the orders for the summer thanksgivings, suggesting that the Fall may already have begun to acquire preeminence as a season for thanksgiving.

These Massachusetts thanksgivings can be compared and contrasted with thanksgivings observed in 17th-century Connecticut. The October 1665 meeting of Connecticut's General Court appointed

a solemne day of Thanksgiving to be kept throwout this Colony on the last Wednesday of November, to returne praise to God for his great mercy to us in the continuation of our liberties and priviledges both Civill and Ecclesiastick; and for our peace and preventing those troubles that we feard by forreigne enemies; and for the blessings in the fruits of the earth and the generall health in the plantations.
--J. Hammond Trumbull, Ed., The Public Records of the Colony of Connecticut from 1665 to 1678, P.A. Brown, Hartford, 1852, page 26.
The October 1666 session used almost same words when it appointed the last day of October 1666 to be kept as day of thanksgiving, as did assemblies of October 1667 and October 1668 when they set thanksgiving on the third Wednesday in November. The assembly of October 1669 used somewhat different words, which make it explict that the Fall thanksgiving was to be a thanksgiving for the benefits of the entire outgoing year:
This Court doth appoynt the 2d Tewsday in November next to be kept solemly throughout this Colony, a publique day of Thanksgiveing, to render our due ackowledgments of thankes and prayse to God for his many mercyes to us the yeare past, in spareing so much of our comforts both of the fruites of the feilds and of the trees as we enjoy; and allso for that health that hath been continued in severall plantations, and that healing of the deaseases that have been affoarded to many amongst us; and for that measure of peace that is yet continued in our societies.
--Trumbull, Public Records of Connecticut from 1665 to 1678, page 122.
The words of the Court of October 11th, 1677, present a striking contrast
Forasmuch as none can be ignorant of the late awfull disspensation of God towards his poore wilderness people, evidently declaring his displeasure in generall against the whole land, although with lengthened out and undeserved patience towards us in this Colony; and yet considering (though his hand is stretched out still in some places, and a black dismall cloud hangs over all,) the unawakenedness and insensibleness of all sortes amonge us, so much appearing in many God-provoaking sins, rather abounding more then ever, than repented of and reformed, to the great greif of authority, ministry and many others of God's people; and farther being in some measure sencible of the hower of temptation allready began in other parts of the world, to God's people, and the gread hazard our dear native country and his Majesties other dominions, especially the churches of people and God in them, are exposed to by the formidable and prevayleing power of the enemie,--this court thought good to appoynt the 21st of November next to be kept a day of fasting and prayer, on the grownds afoarsaid; and do allso recommend it to all the curches and ministers throughout this Colony, as often as they can, to engage themselves and stir up their people to the worke of solem humiliation and prayer, with turning to the Lord in this our day of Jacob's trouble.

The court appoints the last of October present, to be kept a day of public Thankesgiveing throughout the Colony.
--Trumbull, Public Records of Connecticut from 1665 to 1678, page 328-329.

Times were troubled, so the Court appointed a fast. But the habit of holding a day of thanksgiving in Connecticut in the Fall, after the Court's general meeting, was strong enough that the Court appointed a thanksgiving day also.

Later documents show how the custom continued to evolve. Manasseh Minor, of Stonington, Connecticut, kept a diary beginning in 1696, in which he sometimes lists fasts and thanksgivings

March 1697
17 a fast day thro the colony

November 1697
3 Thenksgiving day in publik &

February 1698
2 a great snowing candlmus day
13 No meetin becase of the snow

March 1698
2 thanksgivin here in Stonington
27 Elihu publisht warning for the sacrament & of a fast day

November 1698
9 Thanks givin day in publik &
--Frank Denison Miner and Hannah Miner, The Diary of Manasseh Minor Stonington, Conn. 1696-1720 (1916), page 21ff.

The entry for March 2nd 1698 (the number refers to the almanac-year beginning in January) reminds us that town officials as well as provincial officials could appoint days of observance. The entry for February 1698 shows that this farmer was not afraid to use some of the old names for particular dates, such as "Candlemas" for February 2nd.

An article titled "A Young Man's Journal of a Hundred Years Ago", by Simeon E. Baldwin, published in the Papers of the New Haven Colony Historical Society, claims to transcribe selections from the journal of "a young man, not a New Havener, though a recent graduate of Yale College, who was earning his support by teaching, and who writes sometimes here [i.e. in New Haven], sometimes at Albany, and sometimes by the tavern-fire on a vacation trip" in the years 1782-1785. Baldwin, however, gives no cataloguing information and never names the author of the journal, nor describes the manuscript beyond stating that its pages are "yellow and faded". If one is nevertheless willing to accept Baldwin's word that the journal exists, is genuine, and that Baldwin's transcriptions are accurate, one can find in it the following:

November 28th [1782]. This is...the day appointed by [the Continental] Congress to be observed as a day of Thanksgiving...It gives me but little pain that my health would not permit me to enjoy the usual externals of a Thanksgiving Day, since the customs are so very different [in Albany, New York] from those to which I have been accustomed in New England. 'Tis true it in some measure puts a stop to their business, & on that account seems a damp to their spirits. To be sure none of that lively joy which is there so conspicuous & seems to animate the countenance of all we meet, is visible here. They have no extraordinary dinner, nor in their cookery do they at all deviate from the usual custom of each day, & I could wish that I had reason to think that what is wanting in external show, was replaced in the superior devotion and sincerity of their service, for they have two meetings in the day; in the afternoon a charity sermon.
-- Simeon E. Baldwin, "A Young Man's Journal of a Hundred Years Ago", in Papers of the New Haven Colony Historical Society, Volume 4 (1888), pages 196-197.

Whatever the case for Baldwin's "journal", Harriet Beecher Stowe's fictionalized memoir of her childhood, Oldtown Folks, can probably be accepted as giving an accurate picture of an early 19th-century New England Thanksgiving. The picture she presents matches that given by Baldwin's "young man". Stowe writes

The king and high priest of all festivals was the autumn Thanksgiving....

There were signs of richness all around us,--stoning of raisins, cutting of citron, slicing of candied orange-peel. Yet all these were only dawnings and intimations of what was coming during the week of real preparation, after the Governor's proclamation had been read.

The glories of that proclamation! We knew beforehand the Sunday it was to be read, and walked to church with alacrity, filled with gorgeous and vague expectations....

We children poked one another, and fairly giggled with unreproved delight as we listened to the crackle of the slowly unfolding document. That great sheet of paper impressed us as something supernatural, by reason of its mighty size, and by the broad seal of the State affixed thereto; and when the minister read therefrom, "By his Excellency, the Governor of the Commonwealth of Massachusetts, a Proclamation", our mirth was with difficulty repressed by admonitory glances from our sympathetic elders. Then, after a solemn enumeration of the benefits which the Commonwealth had that year received at the hands of Divine Providence, came at last the naming of the eventful day, and, at the end of all, the imposing heraldic words, "God save the Commonwealth of Massachusetts."

And now came on the week in earnest...Thanksgiving time was the time for errands of mercy and beneficence throught the country; and Uncle Fliakim's immortal old rubber horse and rattling wagon were on the full jump, in tours of investigation into everybody's affairs in the region around...Moreover, my grandmother's kitchen at this time began to be haunted by those occasional hangers-on and retainers, of uncertain fortunes, whom a full experience of her bountiful habits led to expect something at her hand at this time of year. All the poor, loafing tribes, Indian and half-Indian, who at other times wandered, selling baskets and other light wares, were sure to come back to Oldtown a little before Thanksgiving time, and report themselves in my grandmother's kitchen....

Great as the preparations were for the dinner, everything was so contrived that not a soul in the house should be kept from the morning service of Thanksgiving in the church, and from listening to the Thanksgiving sermon, in which the minister was expected to express his views freely concerning the politics of the country, and the state of things in society generally, in a somewhat more secular vein of thought than was deemed exactly appropriate to the Lord's day....

Although all servile labor and vain recreation on this day were by law forbidden, according to the terms of the proclamation, it was not held to be a violation of the precept, that all the nice old aunties should bring their knitting-work and sit gently trotting their needles around the fire; nor that Uncle Bill should start a full-fledged romp among the girls and children, while the dinner was being set on the long table...[Dinner was] turkey, and chickens, and chicken pies, with all that endless variety of vegetables which the American soil and climate have contributed to the table, and which, without regard to the French doctrine of courses, were all piled together in jovial abundance...After the meat came the plum-puddings, and then the endless array of pies....

When all was over, my grandfather rose at the head of the table, and...called their attention to the mercies of God in his dealings with their family. It was a sort of famly history, going over and touching upon the various events which had happened. He spoke of my father's death, and gave a tribute to his memory; and closed all with the application of a time-honored text, expressing the hope that as years passed by we mght "so number our days as to apply our hearts to wisdom" and then he gave out that psalm [Psalm 78] which in those days might be called the national hymn of the Puritans....

And now, the dinner being cleared away, we youngsters, already excited to a tumult of laughter, tumbled into the best room, under the supervision of Uncle Bill, to relieve ourselves with a game of "blind-man's-buff", while the elderly women washed up the dishes and god the house in order, and the men-folks went out to the barn to look at the cattle, and walked over the farm and talked of the crops.

In the evening the house was all open and lighted with the best of tallow candles, which Aunt Lois herself had made with especial care for this illumination. It was undnerstood that we were to have a dance, and black Caesar, full of turkey and pumpkin pie, and giggling in the very jollity of his heart, had that afternoon rosined his bow, and tuned his fiddle, and practised jigs and Virginia reels, in a way that made us children think him a perfect Orpheus....Of course the dances in those days were of a strictly moral nature.
--Harriet Beecher Stowe, Oldtown Folks, Chapter 27.

This long extract from Stowe's even wordier chapter reveals a number of details in the "Oldtown" thanksgiving that have since become familiar throughout the country: The air of expectation, the family gathering, the church-service, and the turkey and pumpkin pie. It also shows that the practice of the early 19th century retained similarities to the practice of the 17th and 18th centuries. It was expected that there would be a thanksgiving in the Fall, but the precise date was not known until shortly beforehand. The thanksgiving was officially proclaimed as an occasion on which to give thanks for the blessings of the outgoing year, some of which were enumerated in the Governor's proclamation.

Stowe's words suggest that the grandfather's speech, "a sort of family history", might have included a recitation of benefits even of years long gone. And the 78th psalm, which was sung in a metrical paraphrase to the tune Saint Martin's, explicitly begins with a mention of providences of old:

Let children hear the mighty deeds
which God performed of old,
which in our younger ears we saw,
and which our fathers told.
So the blessings of the outgoing year were set in a context of God's ongoing providences to the family from long ago to the present day.

There is no mention in all of these sources of the Plymouth colony in Massachusetts, or the supposed "Pilgrims' first Thanksgiving" of 1621. This is because it is simply wrong to associate the Thanksgiving holiday uniquely, or even specially, with the Plymouth colony or with the religious separatists who formed a significant proportion of its population. Though New-Plimouth (as it was called) was the first English settlement in present-day Massachussetts that yet survives, still it was only one of over a dozen settlements that had been attempted in New England by 1625.

The Plymouth separatists had ideas about the Christian calendar similar to those of the Puritans. They shared with the Puritans the practice of proclaming fasts and thanksgivings for particular occasions. Nathanial Morton's New England's Memorial (1669) notes that while the separatists were living in the Low Countries and debating whether to emigrate to North America, public fasts were part of the process of discernment

The reasons of their removal...being debated first in private, and thought weighty, were afterwards propounded in public; and after solemn days of humiliation observed both in public and private, it was agreed, that part of the church should go before their brethren into America, to prepare for the rest...
--Nathaniel Morton, New England's Memorial. Congregational Board of Publication. Boston, 1855, page 13.
The 1622 narrative known as Mourt's Relation states that after the harvest of 1621, some of the Plymouth settlers enjoyed several days of feasting and sports. It nowhere states that this was a religious thanksgiving-day of the kind recognized by the separatists. But even if it was, it cannot be viewed as having "instituted" anything, or set a precedent for any later practices. The practice of observing fasts and thanksgivings instead of the traditional Christian holidays had already been instituted. In the form of fasts, at least, it had already been practiced east of the Atlantic and, indeed, it was considered to have the warrant of scripture. Furthermore, their rejection of anniversary holy-days as perpetual memorials of specific providences would have prevented the separatists from establishing an anniversary commemoration of their first successful harvest. The Plymouth harvest-festival of 1621 might have set the precedent of having harvest-festivals in Plymoth itself, but there is no evidence that it did so. It seems to have been a one-time event.

But all this is beside the point. In the years 1629-1643, thousands of immigrants, a significant proportion of them Puritans from East Anglia, began arriving in Massachusetts and Connecticut. These Puritans, and not the separatists of the little Plymouth colony, were the ones who dominated the religious and political life of these Colonies throughout the 17th century. (David Hackett Fisher, Albion's Seed, Oxford, 1989.) It is these Puritans, not the separatists, whose calendar-customs came to dominate Massachusetts and Connecticut. That the separatists had similar customs is purely accidental. Had Plymouth been settled by Prayer-Book Anglicans, the much more numerous Puritans would have been able to exercise cultural dominance just the same, and our Thanksgiving would probably be the same. Had the great migration of 1629-1643 consisted chiefly of Prayer-Book Anglicans, American Thanksgiving in its present form would probably not exist, however many fasts and thanksgivings the Plymouth separatists themselves may have observed.

This essay copyright (c) 2005 by Timothy R. Phillips.  It may be reprinted freely as long as the wording is unchanged and this notice is included. 


May 11, 2005
(Gregorian Lunar Almanac 2005.6th Moon.2nd Day)(longish-term link)

The Shoemaker and the Men of '98

Sometime before 1765, shoemaker and Methodist preacher Thomas Olivers (1725-1799) wrote a tune for inclusion in the new edition of John Wesley's Select Hymns with Tunes Annext. A tale of uncertain origin tells that Olivers based the melody on a tune he heard whistled in the street

Olivers's tune was then modified, mainly in its ornamentation, by Martin Madan (1726-1790) and published in his Collection of Psalm and Hymn Tunes of 1769 for use with Madan's modified version of the words.

Madan's adaptation of Olivers's tune seems to have become popular, for around 1780 there is recorded a dance-tune based on it. This was Miss Cattley's Hornpipe, named after the famous singer Anne Catley (1745-1789).

So on this evidence both Martin Madan and the anonymous composer of Miss Cattley's Hornpipe wrote a new tune based on an older one. If the story about Olivers being based on a musical air overheard in the street is true, then Thomas Olivers did so as well. They were able to do this because, at that time, the public still kept its ancient freedom over musical airs. Anyone could sing, play, and modify any musical air. The copyright law then in existence in Scotland and England was the "Act for the Encouragement of Learning" which had been enacted in the 8th year of Queen Anne. It applied to published books for a maximum term of 28 years, after which the book became publici juris. The London Stationers' Company was disputing this interpretation, claiming that their exclusive printing monopolies were perpetual. This legal dispute would culminate in the cases known as Hinton v. Donaldson, decided by the Scots Court of Session in 1773, and Donaldson v. Becket, decided by the English House of Lords in 1774. Both these tribunals decided that the act of 8 Anne created only a temporary monopoly over a published work, and that after the expiration of the monopoly, the work became publici juris in accordance with the principles of intellectual freedom and free trade. The Stationers' claim that their rights were perpetual under the common law was rejected.

But both the Stationers' 17th-century monopolies, and the monopolies granted by the act of 8 Anne, applied to books as published. The act was not yet understood to create monopolies in short musical airs. A case decided in the Court of King's Bench in 1777, Bach v. Longman, (98 Eng. Rep. 1274) found that a musical composition could be a "writing" for the purposes of the act of 8 Anne. This involved the infringement of two sonatas by John (or Johann) Christian Bach (1735-1782), son of the famous German composer Johann Sebastian Bach (1685-1750). In 1788 a plaintiff recovered for infringement of "a musical air and writing" (Storace v. Longman, referred to in a footnote to Clementi v. Golding, 11 East 243, King's Bench 1809). But before this, short musical airs appear to have been considered publici juris, for neither Olivers's tune, nor Madan's adaptation of it, nor Miss Cattley's Hornpipe was ever accused of infringing any statutory monopoly.

The freedom that these writers of the later 18th century enjoyed has long since been lost to us. The copyright law now applies to even short written works from the moment that they are "fixed", that is, written down. Even a grocery-list is now the subject-matter of copyright. It is now impossible to do as legend says Olivers did, and simply write down a tune that is overheard in the street and publish a variant of it, because any such tune might be under copyright. Before anyone can publish a melody that he has learned, or use it as the basis of a new musical air, he must first try to identify its date and author, in order to determine whether it still is subject to copyright. This creates a chasm that which the creative spark must first leap before it can burn freely.

In theory, of course, the public voluntarily agreed to this abridgment of its rights. In theory the public, through its elected representatives, has enacted the law of copyright in order "to promote the progress of science" (U.S. Constitution 1.8.8). In theory, the public has agreed temporarily to refrain from exercising its ancient rights over new melodies, in exchange for having later even more original melodies in which to exercise these rights than it otherwise would have had. 

That is the theory. In practice, the public's representatives have not represented the public so much as private interests. Powerful music-recording, film, and publishing interests prefer to have their exclusive privileges to be as broad and as long-lasting as possible. The duration of copyright has been extended by the 1998 Copyright Term Extension Act (CTEA) to absurd dimensions: 95 years from publication in the case pre-1978 copyrights, which were originally understood to last for no more than 56 years. Copyright monopolies have effectively become ends in themselves rather than means to "promote the progress of science."

Of course, even if the duration of copyright were only 28 years, as it was in the U.S. from 1790 until 1830, the public's freedom over a musical air heard in the street would still be abridged compared to the freedom that legend says Thomas Olivers was able to exercise over the air that he overheard. This is because it is not only the duration of copyright that has been increased over the years. The scope of copyright also has considerably broadened since Thomas Olivers's day. In the U.S., copyright at first only applied to "maps, charts and books" as they were published. The copyright monopoly chiefly forbade competitors for a time from entering the primary market for a copyrighted book. The making and marketing of translations and abridgments remained the public's right. Some of the ancient freedom over individual musical airs continued to be taken for granted, too. William Walker (1809-1875), in the preface to the 1835 edition of The Southern Harmony was able to write "I have composed the parts to a great many good airs, (which I could not find in any publication, nor in manuscript,) and assigned my name as the author."

Over time the scope of copyright was broadened to alienate these freedoms from the public and transfer them to private hands in the form of copyright monopolies. Indeed, the scope of copyright has been so enlarged over the years that it now applies even to architectural works themselves, as well as to their blueprints. In the Second Judicial Circuit, the scope of copyright has been enlarged still more in practice by the "device" and "circumvention" provisions of the 1998 Digital Millennium Copyright Act (DMCA). 

It is highly unlikely that this broadening of the copyright privileges will ever be completely reversed. One might raise serious objections against copyright in architectural works, and against the "device" and "circumvention" provisions of the DMCA. But it is more reasonably arguable that, in order "to promote the progress of science", a monopoly of fairly broad scope, including some rights of public performance, the right of translation, the right of abridgment, and some other rights of derivation, must be reserved to the monopolist, so that the copyright will have a fighting chance of generating a reasonable return to the author. Under any copyright law that is likely to exist, then, the creative spark will still be required to leap a chasm before it can light a creative fire in a melody that has been overheard in the street. Under any copyright law that is likely to exist now or in the near future, a modern-day Thomas Olivers would need to check the identity of a musical air that he overheard, and, if the air were found to be still under copyright, he would need to wait a little while before making his own variant widely known.

But "a little while" should not be four or five generations. A term of ninety-five years is hardly a "limited time" that can "promote the progress of science" better than a seventy-five year term can, by enough of a margin to justify making our hypothetical modern-day Thomas Olivers wait twenty more years. 

It was noted earlier that Congress extended the term of copyright because it was influenced by powerful special interests. This is so, but it is not the whole story. An indifferent public, unaware of the extent of its own rights of free trade and free expression, also contributed by its indifference to the enactment of the new law. If we are to have any chance of reversing the copyright disasters of '98, we will need to learn to cherish and defend what remains to us of our common creative and commercial rights. We must demand that all remember that the freedom that Martin Madan, the anonymous composer of Miss Cattley's Hornpipe, and, according to legend, Thomas Olivers enjoyed--the freedom to take a musical air and publish a newer one made from it--is the public's right. We must demand that, even if for reasons of public policy we must delay our own enjoyment of that same freedom in new melodies, still the monopolists to whom we cede this margin of our freedom must never forget that their copyright privileges have been carved from our rights. We must demand that the rightsholders remember that their works must in the end become publici juris so that anyone can market them and work them into new shapes. As a matter of civic virtue, as well as self-preservation, the public should demand of itself that it remember these things too. We should remember our ancient rights of free expression and free trade. We should remember that the monopoly privileges enjoyed by copyright holders were built from our own rights. We should remember that all works of the human mind belong in the end to all mankind. We should remember these things, and make sure our representatives in government remember them also. 

This essay copyright (c) 2005 by Timothy R. Phillips.  It may be reprinted freely as long as the wording is unchanged and this notice is included. 

April 10, 2004
(Gregorian Lunar Almanac 2004.4th Moon.19th Day)(longish-term link)

"The joy of the holy king...."  Review of  Mudhouse Sabbath by Lauren F. Winner.  Published by Paraclete Press, Brewster, Massachusetts, 2003

This is a book about what Christians can learn from traditional Jewish practices.  It is, author Lauren Winner writes,"to be blunt, about spiritual practices that Jews do better [than American Protestant Christians]". 

Christianity, as we know it, itself derives from a form of Judaism taught by Jews to "Greeks and barbarians" (St. Paul's letter to the Romans, 1.14), though some Christians and Jews, maybe, would rather forget that fact.    It is not inherently implausible that the Greeks and barbarians might still have more to learn.   But the author herself, a recent convert to Christianity, even as she teaches other Christians is at the same time still learning the traditions of her new philosophy.  So this book is not just a book of suggestions for other Christians.  It is also a verbal snapshot of a recent state of Winner's own ongoing learning.

Mudhouse Sabbath is a book about "being present" or paying attention" to the circumstances of one's everyday life.  Winner does not use these phrases in every chapter, but the concept should probably be taken as a thoroughgoing motif nevertheless.  "The ancient disciplines", she writes in her introduction, "form us to respond to God, over and over always, in gratitude, in obedience, and in faith."  The book is divided into eleven chapters, each of which has a Hebrew and English title.  These are "Shabbat" (for she uses the modern Israeli pronunciation of Hebrew, not the pronunciation of Tiberias) which means "Sabbath", "kashrut / fitting food", "avelut / mourning", "hachnassat orchim / hospitality", "tefillah / prayer", "guf / body", "tzum / fasting", "hiddur p'nai zaken / aging", "hadlakat-nerot / candle-lighting", "kiddushin / weddings", and "mezuzot / doorposts".  This review will concentrate on the chapters on Sabbath, hospitality, and candle-lighting.

The location of the chapter on Sabbath observance at the book's beginning  corresponds to the Sabbath's importance in Orthodox Jewish practice.  Winner believes that Christianity would be enriched by reviving some of the respect shown by some 19th-century American Protestants for their "Sabbath" by which they meant Sunday.  This is the content of her argument, though she doesn't explicitly mention 19th-century American Protestantism. 

The difficulty with this substitution of the Christian Sunday for the Jewish Sabbath--a position known as Sabbatarianism--is that, on the level of theory, it is wrong.   Sunday is not the "Sabbath".  The Sabbath, for Christians as well as Jews, is Saturday, the seventh day of the week.  Early Christian writers were clear on this point: 

The Sabbath is the end of the creation, the completion of the world, the inquiry after laws, and the grateful praise to God for the blessings he has bestowed upon mankind.  All which the Lord's day excels, and shows the mediator himself, the provider, the lawgiver, the cause of the resurrection, the first-born of the whole creation.  (Apostolic Constitutions 7.36) 

Sunday is the Lord's day:  the eighth-and-first day, the day of resurrection, the day of the kingdom of God.   By assembling on this day, Christians perform a sacrament of time.   The seventh day's holiness, given to that day by God at the beginning, has not been transferred to the first day; it remains part of the seventh day.  Rather, the Christian sacrament of time, with its use of the eighth-and-first day, reveals the inner meaning of the seventh day's holiness, the inner meaning of the holy rest on that day that was God's gift and commandment to Israel, and the inherent holiness and inner meaning of all time:  that Jesus has filled all time with himself, and that mankind, through the Christian sacrament of time, can now offer that Christ-filled time back to God as they become, through the Christians' sacrament of bread and wine, participants in Jesus's own offering of himself to his Father.  This Christ-filled time, given and received by God and Mankind to and from each other, becomes a means of mankind's enjoyment of God and one another in the kingdom in which Jesus reigns.  In this theory, it is not necessary for Sunday to be a day of rest from work.   And indeed, for the first Jewish Christians, Sunday was probably a working day.    This did not in any way detract from its status as the Lord's day. 

Such is the theory.  On the level of practice,  Lauren Winner's proposed means of making Sunday a festive and holy day are perfectly reasonable and worthy of consideration.  After all, Sunday according to American custom is a non-working day for many people, and this can be a great convenience and opportunity for Christians.  And so, in addition to attending church on Sunday, Winner is experimenting with refraining from shopping on that day, meeting with other to study the Scriptures, and sometimes visiting shut-in fellow Episcopalians with a friend from her parish.

In the fourth chapter, "Hospitality", Winner rightly notes that hospitality has long been a Jewish and Christian ideal.     It is interesting that she does not refer to St. Paul's exhortation to the Roman Christians to "practice hospitality". (Letter to the Romans, 12.13).  She does, however, cite the First Letter to Timothy (3.2), which is traditionally attributed to Paul; the anonymous Letter to the Hebrews (13.2), and the Didache, thought to be a compilation of the early 2nd century A.D., which advises Christians, "Everyone who comes in the name of the Lord is to be made welcome, though later on you must test him and find out about him." (Didache 12).  Winner reflects on how, in her college days, she received generous hospitality from her her fellow Orthodox Jews in Manhattan, and how she receives it now from her fellow Episcopalians in Charlottesville, Virginia.  Despite what she states in her introduction--that her book is about what Orthodox Jews do better than Christians--the hospitality Winner has received from Episcopalians seems as ample as what she earlier received from Orthodox Jews.   The important comparison in this chapter is not between the ways of Episcopalians and Orthodox Jews, but between what Winner herself has received and what she sees as her own feeble efforts at extending hospitality to others.

Winner notes that for Jews and Christians, hospitality is a way of imitating God who, according to some Christian and Jewish teachers, made the heavens and the earth as a house in which he could receive mankind.  Winner goes on insightfully to note that receiving visitors into one's house is closely linked to receiving fellow human beings into one's life.   She notes that both can be hard, because people's lives can be as cluttered as their houses.

Winner has less to say about the risks that those who practice hospitality undertake.   The Didache, in the quotation given earlier, noted that fellow Christians were to be welcomed initially, but "later on you must test him and find out about him."  Guests, like anyone else, can be dangerous.  Inviting others into our lives can be dangerous, too.   According to Christian teaching Jesus, who brought his heavenly Father's invitation to mankind to participate in the divine life, was brutally killed for it.   Winner is not unaware of these risks, however.  She concludes her chapter by narrating an incident in which one of her students, a younger woman, openly showed affection for Winner's boyfriend at a New Year's party.  The student, perhaps fearing retaliation from her teacher, later asked Winner whether she  had been bothered by the incident.   Winner 

wanted to ... laugh and say "No, not at all..."  But some instinct told me to risk transparency...that if I couldn't tell here the faintly lame and faintly embarrassing truth about my silly, sad emotions, how was I ever going to be able to tell the truth about something big.

So Winner told her student about her mixed feelings.   This seems to have had a good outcome for both Winner and the younger woman.   But it might not have.  Someone to whom one opens one's house might do harm, or take unfair advantage.  Someone to whom one is honest about one's thoughts and feelings might exploit that knowledge in ways harmful to the one who took the risk of honesty.   And there is also simply the awkwardness revealing the inside of one's house, or the inside of one's life.  But Winner concludes the chapter with a confession of faith:  "Like my apartment, my interior life is never going to be wholly respectable...But that is where I live.  In the certitude of God, I ought to be able to risk issuing the occasional invitation."

In her ninth chapter, "Candle-lighting",  Winner reveals how her concentration on 19th-to-21st century American Protestantism has distorted her view of the history of Christian candle-lighting customs.  "Christian homes", she writes sweepingly, "are not typically as candle-filled as Jewish homes.  We Christians do not traditionally light candles to usher in the Sabbath or memorialize the dead."  Winner does not seem to realize that the Jewish custom of the yahrzeit candle may be of Christian, possibly Roman Catholic, origin.  Also her experience of "Christian homes" is quite different from mine, for I remember my mother filling our house with candles at Christmastime.   Winner also notes the custom of the Advent wreath, and writes confidently that the Advent wreath is, "historically, a church ritual, but more and more people are making advent wreath for their homes, too."  My own earliest memories of the Advent wreath (from the middle 1960s) are of the wreath on the dinner-table in my childhood home.   I don't remember our church-house having an Advent wreath at the same time.   This might be a trick of my memory.   But it is at least possible that the use of the Advent wreath in Episcopal churches was an importation into corporate worship of a domestic custom.

This  process of importation of private or domestic ritual into the Church's public worship might also be the origin of the hymn Phos hilaron, long used in the rites of eastern Christians and increasingly used by some western Christians since the 19th century.   St. Basil of Caesarea, apparently referring to this hymn, noted that

It seemed fitting to our fathers not to receive the gift of the light at eventide in silence, but, on its appearance, immediately to give thanks.  Who was the author of these words of thanksgiving at the lighting of the lamps, we are not able to say.  (On the Holy Spirit, 73)

Similar devotional customs are recorded in western Christianity as monastic customs or folk-customs.  An anonymous writer of the low middle ages describes how he thought monks should conduct themselves at their evening meal 

Sedentes autem in sedilia sua faciunt similiter sicut et in prandio in die.  Et si contigerit ut nox perveniet cenantibus et lumen necesse sit accendere, ille autem frater qui lumen adportat statim cum ingreditur in domo prope seniores dicit tali voce ut omnes audiant "lumen Christi", et dicunt omnes "Deo gratias"... (St. Gall MS Stiftsbibliothek 349)

(When they sit down in their seats [at the evening meal] they will do as they do during the daytime meal.  And if night should fall while they are eating, and it becomes necessary to kindle a light, then the brother who brings the light, when he comes in [and is] in the house near the elders, says, in such voice that all may hear, "The light of Christ"; and all answer, "Thanks be to God.") 

Some English Christians practiced a similar custom in the 17th century, according to George Herbert (1593-1633)

Another old Custome there is of saying, when light is brought in, "God send us the light of heaven"; And the Parson likes this very well; neither is he affraid of praising, or praying to God at all times, but is rather glad of catching opportunities to do them.  Light is a great Blessing, and as great as food, for which we give thanks.   (The Countrey Parson 35)

So candle-customs practiced in parts of Christendom have sometimes resembled  the candle-customs of Rabbinic Judaism. If one must contrast these Christian customs to the Jewish practice of kindling Sabbath and festival lights and giving thanks for their light, one might conclude that Orthodox Jewish tradition has been more successful than western Christianity in maintaining the use of this thanksgiving for light as a widely-followed cultural norm.  As far as we can tell from the passage quoted earlier,  the monastic custom, if it was used at all, was used only by monks.  The folk-custom noted by George Herbert, was, as Herbert himself noted, an "old custome" of the countryside.   The 35th chapter of The Countrey Parson makes it clear that the custom was dying out at the time Herbert wrote.   Winner's statement that Christian homes are less "typically" candle-filled is probably best interpreted as a statement on this difference in cultural norms between Orthodox  (not necessarily Conservative, Reform, or Reconstructionist) Judaism and western Protestant (including Anglican) Christianity.  Part of this difference in norms might be attributed to the Christian insistence on freedom from rulesrulesrules.   Paraphrasing Saint Paul we might say "Let not him who lights a candle pass judgment on him who does not light; let not him who does not light pass judgment on him who lights."  For many Christians, such practices must remain a matter of independent conscience.   Still, light, as George Herbert wrote, is a great blessing.  Some of the candle-lighting practices Winner is experimenting with might help others, as they help her, to pay attention to God's gifts of eyesight and light.

This raises the question of why this book is not somewhat longer than it is.  Winner might easily find in Orthodox Jewish tradition still other suggestions of ways in which she and her fellow believers might "rejoice always, pray constantly, give thanks in all circumstances." (St. Paul's first Letter to the Thessalonians, 5.16-18).  One centuries-old Orthodox Jewish custom which, like the candle-lighting customs mentioned earlier, had a counterpart in Christian folk-customs, is the birkath ha-levawnaw or blessing of the new moon (Talmud Sanhedrin 42a).  This benediction is recited in the open air when a waxing moon is visible in the sky.  A similar custom was used by Scots Highlanders in the 17th century

When they first see the moon new, they turn themselves about thrice, and take up grasses etc. [,] cast towards it, and bless God for it.  (Bodleian MS Carte 269)

Of course, Mudhouse Sabbath is a book about what Lauren Winner misses from her Orthodox Jewish life.  Possibly the birkath ha-levawnaw was not used in Manhattan, or perhaps Winner never cared for the custom.   Still, moonlight, like all light, is a great blessing.  The same logic that recommends that Christians consider giving thanks for the light of a candle might also recommend that they consider giving thanks for the light of the waxing moon.

Another Orthodox Jewish custom that Winner does not mention is the birkath ha-mawzôn, or grace after meals.    This Jewish custom is of considerable historical importance to Christianity.  An early form of the blessing after meals is the original source of the Christian eucharistic prayer.  (Note the words "after supper" in Paul's first letter to the Corinthians, 11.25).   Furthermore, the custom of saying grace after meals has been widely used by Christians in the past.   Christine de Pizan mentions the custom in the early 15th century (Treasure of the City of Ladies 11).  In the 19th century, this after-meal grace  was used at Trinity Hall at Cambridge University in England:

V. Benedicamus Domino ("Let us bless the Lord")
R.  Deo gratias ("Thanks be to God")
Agimus tibi gratias, omnipotens sempiterne Deus, pro omnibus tuis beneficiis;  qui vivis et regnas Deus per omnia in saecula saeculorum.  Amen. ("We give you thanks, almighty everlasting God, for all your gifts to us; who livest and reignest,  God throughout all ages,  into the ages of ages.")  (Notes and Queries, 8th Ser. 5.455)

As recently as the mid-20th century, the Anglican devotional manual called Saint Augustine's Prayer Book (15th edition 1964) included a brief thanksgiving after meals.  A modified form of it is in the Episcopal Church's present Book of Common Prayer, where it is the fourth-listed grace "at" meals. 

But despite the importance of the grace after meals in Jewish Practice and in the development of Christian liturgy, and despite the persistence of similar customs for many centuries in western Christianity, Winner makes no mention of the birkath ha-mawzôn.  Perhaps the birkath ha-mawzôn is little used among the Orthodox Jews of Manhattan, so that Winner would not miss it in the same way as she would miss the weekly Sabbath rest.  Or perhaps it is used by them, but Winner did not care for it.  Or perhaps she knows how slight is the chance of its revival under the conditions of modern American Christian life; or thinks that it is not needed since American Christianity has managed to retain the ancient custom, also of Jewish origin (see the Acts of the Apostles, 27.35), of grace before meals. 

So Mudhouse Sabbath leaves out much that some might hope to see in a book of this kind.  It is only a preliminary meditation on what the Greeks and barbarians may still be able to learn from Jewish tradition.   But Lauren Winner, like Saint Paul, is strong when she is weak.  She doesn't know everything there is to know on this subject, nor does she claim to.    Lauren Winner is trying to work out how to live as a Christian.   She is not ashamed to let us see her own puzzlement at how she will integrate into a coherent life all the gifts she has received.  And it is partly this transparent honesty and uncertainty that makes this book so appealing and so useful.

This essay copyright (c) 2004 by Timothy R. Phillips.  It may be reprinted freely as long as the wording is unchanged and this notice is included. 

Older essays:

In praise of creative freedom 2--"That song of the Gypsy Davy..." (longish-term link).   (7/26/2003)
The "R" in "RIAA" stands for "Robber-barons"(longish-term link) (7/21/2003)
What Professor Volokh may have missed (longish-term link) (4/29/2003)
Weary me not  (longish-term link) (4/27/2003)
What Professor Felten doesn't quite get (longish-term link) (1/25/2003)
Let's all do the Redstone Sneer  (longish-term link) (1/20/2003)
Court to  Public:  "We lied, suckers!"(longish-term link) (1/18/2003)
"We hate the public domain".(longish-term link)  (10/27/2002)
In praise of creative freedom - 1(longish-term link)  (10/5/2002)
More ideas on "ideas" (longish-term link) (9/22/2002)
The word "idea" has variable width (longish-term link)(9/17/2002)
Doc on me on Doc on Lessig on Freedom (longish-term link)  (9/15/2002)
Lessig on Freedom   (Longish-term link) (9/14/2002)

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.