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​Complaining Work

​Defending Work

John Gay

Themes from the opera "Polly"

 

John Gay

Themes from the opera "Polly"

 

Comment

Plaintiff composed music for an opera which was an adaptation of an old play. Defendants prepared an orchestral score from the same source, records of which they offered. Plaintiff complained that defendants were passing off these records as records of plaintiff's music. Held defendants had borrowed from plaintiff's work in a way which was more than mere coincidence, and had infringed plaintiff's copyright.

By Ahsan Alvi

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Opinion by Judge Astbury

Infringement of the plaintiff’s copyright in the music of the opera ‘Polly’, written by John Gay as a sequel to ‘The Beggar’s Opera’ was alleged. A volume comprised the opera in prose form, with an appendix including simple airs with an added bass. These were traditional tunes at the time and Gay composed none of the music. The opera remained unknown and unperformed until 1922, when the plaintiff, in collaboration with a lyricist, arranged and composed the music by altering and extending the existing tunes to fit the new lyrics. The opera succeeded and the Defendants wished to produce the best airs on gramophone records. The Defendants’ musical director picked out 20 tunes but the plaintiff had already reached agreement with another record company for the recording of parts of the opera as band music and refused a licence to the Defendants who then decided to proceed without his consent and sent their musical director to the British Museum to copy from the original Gay edition the tunes which they had selected for recording, in the hope of avoiding any copying of the plaintiff’s own music.


Held: The expert evidence indicated that the Defendants had deliberately harmonised the Gay material to resemble the plaintiff’s work, though they had not taken the actual notes used by him. They had imitated his harmonisation to capture the impression made by his own music, on which the production’s commercial success was based. This was sufficient to amount to an infringement of his copyright.

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