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Bands and Copyright Music. Important Legal Decision. Broadcasting by Bands. Mellor andOthers v. Australian Broadcasting CommissionSource: The Musical Times, Vol. 81, No. 1173 (Nov., 1940), p. 463Published by: Musical Times Publications Ltd.Stable URL: http://www.jstor.org/stable/923877 .

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THE MUSICAL

TIMES

HE MUSICAL

TIMES

Mexico

Novelties at the

symphony

concerts conducted

by

Chavez were Aaron

Copland's

'

Salon

Mexico,'

Manuel

Ponce's

Piano

Concerto,

Rafael Adame's

'Cello

Concertino,

O.

L.

Fernandez's

'

Batuque,'

Chavez's

Dance-Symphony

'

H.

P.'

and his Concerto for

four

horns, and Halffter's Concertante Overture for

orchestra

and

piano,

with Iturbi as

soloist.

Igor

Stravinsky

conducted

two concerts of

the

Mexican

Symphony

Orchestra. The

programmes

consisted

of

works

of his

own,

plus

Cherubini's

'Anacreon'

Overture

and

Tchaikovsky's

second

Symphony.

Chile

Santiago

The

main events of

the

season

were

:

performances

of Bach's

'Christmas

Oratorio' and

Magnificat;

'The

Messiah';

all Beethoven's

Symphonies

under

Kleiber,

all his

Quartets

by

the Lener

Quartet;

'Carmen

'

in the

open

air,

with

Conchita

Velasquez;

a Segovia recital (Sors, Tarrega, Villa Lobos, Moreno,

Torroba, Turina,

Ponce);

a concert of

piano

music,

songs,

and

choral

music

by

Rene

Amengual;

and

a

concert

organized

by

the

Amigos

del Arte at

which

Luis Clavero was

the soloist

in

Jacques

Ibert's Flute

Concerto,

a 'Poem'

by

Juan Orrego,

and

several

other works.

A

competition

for

American and

Spanish

composers

was

opened

in view of

the

forthcoming

fourth cen-

tenary

of the foundation

of the

city

(February 1941).

Special

prizes

are

provided

for

stage

works,

symphonic

works,

and a

variety

of vocal

works.

Mexico

Novelties at the

symphony

concerts conducted

by

Chavez were Aaron

Copland's

'

Salon

Mexico,'

Manuel

Ponce's

Piano

Concerto,

Rafael Adame's

'Cello

Concertino,

O.

L.

Fernandez's

'

Batuque,'

Chavez's

Dance-Symphony

'

H.

P.'

and his Concerto for

four

horns, and Halffter's Concertante Overture for

orchestra

and

piano,

with Iturbi as

soloist.

Igor

Stravinsky

conducted

two concerts of

the

Mexican

Symphony

Orchestra. The

programmes

consisted

of

works

of his

own,

plus

Cherubini's

'Anacreon'

Overture

and

Tchaikovsky's

second

Symphony.

Chile

Santiago

The

main events of

the

season

were

:

performances

of Bach's

'Christmas

Oratorio' and

Magnificat;

'The

Messiah';

all Beethoven's

Symphonies

under

Kleiber,

all his

Quartets

by

the Lener

Quartet;

'Carmen

'

in the

open

air,

with

Conchita

Velasquez;

a Segovia recital (Sors, Tarrega, Villa Lobos, Moreno,

Torroba, Turina,

Ponce);

a concert of

piano

music,

songs,

and

choral

music

by

Rene

Amengual;

and

a

concert

organized

by

the

Amigos

del Arte at

which

Luis Clavero was

the soloist

in

Jacques

Ibert's Flute

Concerto,

a 'Poem'

by

Juan Orrego,

and

several

other works.

A

competition

for

American and

Spanish

composers

was

opened

in view of

the

forthcoming

fourth cen-

tenary

of the foundation

of the

city

(February 1941).

Special

prizes

are

provided

for

stage

works,

symphonic

works,

and a

variety

of vocal

works.

Argentine

Buenos

Ayres

A

series of

remarkable concerts of

modern

music

was

organized

by

Juan

Carlos Paz at the

People's

Theatre. Works

by

Schonberg, Berg,

Stravinsky,

Hindemith, KLenek,

Milhaud,

Karel and

Alois

Haba,

Toch, Wiener,

Hirschberg,

Polivka, Paz,

de

Raco,

R.

Garcia,

Morillo,

Suffern,

J.

Perceval,

Santa

Cruz,

Andrd

Sas,

and

Villalobos were

given.

A

programme

of Chilean music

(Soro,

Leng,

Bisquert,

Cotapos,

Casanova,

Vicufia)

took

place

at the

Teatro

Col6n.

Toscanini conducted

two

symphony

concerts

at the

Teatro Colon.

The

programmes

included Albert

Williams's

Symphony.

At the same

theatre

Arnaldo

d'Esposito's

ballet 'An

April

Tale'

received

its first

performance.

At the

Politeama,

the

Ballets

Russes

de Monte Carlo

gave

a

successful

season.

Colombia

Bogota

Guillermo

Espinosa,

conductor of

the

National

Symphony Orchestra, devoted a festival concert to

French

music

(Berlioz,

Faur6,

d'Indy,

Duparc,

Debussy,

and

Ravel).

Australia

Sir

Thomas

Beecham

is

touring

the

country

with

the Australian

Broadcasting

Commission's

Orchestra.

Schneevoigt

conducted

two

concerts

of

the

Sydney

Symphony

Orchestra.

Menuhin

gave

two recitals

in

Sydney.

His

pro-

grammes

included Franck's

Sonata,

Faur6's

in

A,

and

Ernst's Concerto

in

F

minor.

Argentine

Buenos

Ayres

A

series of

remarkable concerts of

modern

music

was

organized

by

Juan

Carlos Paz at the

People's

Theatre. Works

by

Schonberg, Berg,

Stravinsky,

Hindemith, KLenek,

Milhaud,

Karel and

Alois

Haba,

Toch, Wiener,

Hirschberg,

Polivka, Paz,

de

Raco,

R.

Garcia,

Morillo,

Suffern,

J.

Perceval,

Santa

Cruz,

Andrd

Sas,

and

Villalobos were

given.

A

programme

of Chilean music

(Soro,

Leng,

Bisquert,

Cotapos,

Casanova,

Vicufia)

took

place

at the

Teatro

Col6n.

Toscanini conducted

two

symphony

concerts

at the

Teatro Colon.

The

programmes

included Albert

Williams's

Symphony.

At the same

theatre

Arnaldo

d'Esposito's

ballet 'An

April

Tale'

received

its first

performance.

At the

Politeama,

the

Ballets

Russes

de Monte Carlo

gave

a

successful

season.

Colombia

Bogota

Guillermo

Espinosa,

conductor of

the

National

Symphony Orchestra, devoted a festival concert to

French

music

(Berlioz,

Faur6,

d'Indy,

Duparc,

Debussy,

and

Ravel).

Australia

Sir

Thomas

Beecham

is

touring

the

country

with

the Australian

Broadcasting

Commission's

Orchestra.

Schneevoigt

conducted

two

concerts

of

the

Sydney

Symphony

Orchestra.

Menuhin

gave

two recitals

in

Sydney.

His

pro-

grammes

included Franck's

Sonata,

Faur6's

in

A,

and

Ernst's Concerto

in

F

minor.

a n d s

n d

opyright

M u s i c

IMPORTANT LEGAL DECISION

Broadcasting

y

Bands. Mellor

and others

v.

Australian

roadcasting

ommission.

a n d s

n d

opyright

M u s i c

IMPORTANT LEGAL DECISION

Broadcasting

y

Bands. Mellor

and others

v.

Australian

roadcasting

ommission.

Broadcasting by

Bands. Mellor and

others

v.

Australian

Broadcasting

Commission.

Before

the

Judicial

Committee

of

the

Privy

Council

(Lord

Maughan,

Lord

Porter,

and

Sir

George

Rankin).

Their

Lordships

dismissed

this

appeal,

brought by

special-leave,

by

the

appellants

(who

carry

on

partner-

ship

in

England

under

the name of

Wright

Round

a business as

publishers

of band

music)

from a

judg-

ment of the

Supreme

Court

of New

South

Wales

in

its

equitable jurisdiction,

dated

December

10,

1937.

By that Judgment an action brought by the appel-

lants

against

the

respondents,

the Australian Broad-

casting

Commission,

founded

on

alleged infringements

of

copyright

in

Australia

during

1932 and

1933,

was

dismissed.

W\right

Round

published

in

England

and cir-

culated

to

bands

in

England

and

Australia,

certain

prospectuses referring

to band music

published

by

them,

entitled the

Liverpool

Brass

and

Military

Band

Journal,

which

bore

on

the

front

page

the

words:

'

Please note all

our

music

is

free for

public

performance,'

and

issued

on

the

same

page

a

notice

'To the Bands

of

the British

Empire'

which

con-

tained the

following

passage:

'

All

our subscribers

should

note

especially

that

all

our music is free for

public

performance anywhere.

See our

guarantee

below.

. . . We make one price cover both the music

and

the

performing rights

thereof. .'

The

guarantee

contained

the

words:

'We

guarantee

that

every

piece

published

in

the

Liverpool

Journal

can be

played

anywhere

by

any-

Broadcasting by

Bands. Mellor and

others

v.

Australian

Broadcasting

Commission.

Before

the

Judicial

Committee

of

the

Privy

Council

(Lord

Maughan,

Lord

Porter,

and

Sir

George

Rankin).

Their

Lordships

dismissed

this

appeal,

brought by

special-leave,

by

the

appellants

(who

carry

on

partner-

ship

in

England

under

the name of

Wright

Round

a business as

publishers

of band

music)

from a

judg-

ment of the

Supreme

Court

of New

South

Wales

in

its

equitable jurisdiction,

dated

December

10,

1937.

By that Judgment an action brought by the appel-

lants

against

the

respondents,

the Australian Broad-

casting

Commission,

founded

on

alleged infringements

of

copyright

in

Australia

during

1932 and

1933,

was

dismissed.

W\right

Round

published

in

England

and cir-

culated

to

bands

in

England

and

Australia,

certain

prospectuses referring

to band music

published

by

them,

entitled the

Liverpool

Brass

and

Military

Band

Journal,

which

bore

on

the

front

page

the

words:

'

Please note all

our

music

is

free for

public

performance,'

and

issued

on

the

same

page

a

notice

'To the Bands

of

the British

Empire'

which

con-

tained the

following

passage:

'

All

our subscribers

should

note

especially

that

all

our music is free for

public

performance anywhere.

See our

guarantee

below.

. . . We make one price cover both the music

and

the

performing rights

thereof. .'

The

guarantee

contained

the

words:

'We

guarantee

that

every

piece

published

in

the

Liverpool

Journal

can be

played

anywhere

by

any-

one without fear

that

any

composer

or

society

will

pounce upon any

band for

performing

fees. We

have

paid

for the

performing

rights

of

every piece

of

music

we

issue ..

The Australian

Broadcasting

Commission

engaged

bands to

play

some of the

music

published

and

broad-

cast

the

performances.

The

bands had

purchased

the music

on the terms as

set

out

in

the

prospectus,

and

the

appellants

had,

in

Australia,

claimed

an

injunction

restraining

the

respondents

from so

doing.

The

Australian

Judge

dismissed the

action,

holding

that the

performance

and

broadcasting

of the

band

music in question was done with the implied consent

as

given

in

the

prospectus.

Against

that

decision

the

appellants

appealed.

Lord

Maughan

delivering

judgment

said that

the

Australian

Court had

decided

the

question

as to the

true

meaning

of

the words

in

the

prospectus,

and

their

Lordships

had

arrived at

a

similar

conclusion.

He

quoted

extracts

from the

prospectus

which

stated,

'We

have

paid

for

the

performing

rights

of

every

piece

we

issue,'

and

'

All

our

music

is free

for

public

performance.'

After

dealing

at

length

with

the

British

Copyright

Act

(1911)

and

the

Australian

Copyright

Act

(1912)

Lord

Maughan

said that

their

Lordships

were of

opinion

that the licence or

consent

given

in

the

pros-

pectus

included

the

broadcasting

by

bands. The

learned Australian Judge had, said Lord

Maughan,

remarked

that

'the

appellants

must

have

known

that band

performances

were

frequently

broadcast,

therefore

the

respondents

had

committed

no breach.

The

appeal

therefore

should be

dismissed,

with

costs.

one without fear

that

any

composer

or

society

will

pounce upon any

band for

performing

fees. We

have

paid

for the

performing

rights

of

every piece

of

music

we

issue ..

The Australian

Broadcasting

Commission

engaged

bands to

play

some of the

music

published

and

broad-

cast

the

performances.

The

bands had

purchased

the music

on the terms as

set

out

in

the

prospectus,

and

the

appellants

had,

in

Australia,

claimed

an

injunction

restraining

the

respondents

from so

doing.

The

Australian

Judge

dismissed the

action,

holding

that the

performance

and

broadcasting

of the

band

music in question was done with the implied consent

as

given

in

the

prospectus.

Against

that

decision

the

appellants

appealed.

Lord

Maughan

delivering

judgment

said that

the

Australian

Court had

decided

the

question

as to the

true

meaning

of

the words

in

the

prospectus,

and

their

Lordships

had

arrived at

a

similar

conclusion.

He

quoted

extracts

from the

prospectus

which

stated,

'We

have

paid

for

the

performing

rights

of

every

piece

we

issue,'

and

'

All

our

music

is free

for

public

performance.'

After

dealing

at

length

with

the

British

Copyright

Act

(1911)

and

the

Australian

Copyright

Act

(1912)

Lord

Maughan

said that

their

Lordships

were of

opinion

that the licence or

consent

given

in

the

pros-

pectus

included

the

broadcasting

by

bands. The

learned Australian Judge had, said Lord

Maughan,

remarked

that

'the

appellants

must

have

known

that band

performances

were

frequently

broadcast,

therefore

the

respondents

had

committed

no breach.

The

appeal

therefore

should be

dismissed,

with

costs.

November

1940

ovember

1940

46363