On September 5, 1787, New Jersey Delegate David Brearly submitted the final language of the Copyright Clause to the members of the US Constitutional Convention. Granting the new federal Congress the authority to issue copyrights had been proposed several weeks earlier by James Madison (and, separately, by Charles Pinckney).

The full language, which also gives Congress power to issue patents, reads, “The Congress shall have power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The US Constitution would not be finalized until September 17th, it would not be ratified for another year, and the first Copyright Act would not be signed into law until May 31, 1790. But it seems appropriate to mark this date as an important one in US copyright history.

The existence of copyright law in the United States is mainly the result of efforts by authors.

The Statute of Anne, Britain’s 1710 law establishing copyright in that country, did not apply in its American colonies. The colonies before independence did not have anything resembling a “publishing industry.” Attitudes toward printing in the 17th century were inherited from England; Legal professor Oren Bracha notes that, “In short, throughout the colonial period … the press was seen as an important but dangerous public resource to be encouraged and used by the government, but also to be restricted and regulated.” 1Oren Bracha, Commentary on John Usher’s Printing Privilege 1672, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer (2008). Any book trade was small and unorganized, with only a handful of printers and presses in the colonies at the time. This reflected the less-industrially developed character of the colonies at this time.

Legal mechanisms were scarcely needed because printers faced little risk from reprinting. Printers faced little competition due to their scarcity and the lack of any ability to serve more than their local market. The existence of reprinting was further minimized by extra-legal mechanisms, described by Bracha as “private contractual agreements among booksellers not to print each other’s copies” and “an informal social norm within the trade against such behavior.” There were a few exclusive printing patents granted during this time, primarily for the exclusive right of printing compilations of a colony’s laws.

It was authors who primarily lobbied for general copyright laws in the colonies, and, eventually, the federal government. These authors include Joel Barlow, American politician and writer of Vision of Columbus and Hasty Pudding. Barlow played in important role in convincing the Continental Congress to pass its 1783 resolution encouraging the States to enact copyright legislation.

They also include Noah Webster, who would eventually write the dictionary that still bears his name today. Webster took it upon himself to lobby the individual state legislations, in person, to act on the Continental Congress’s resolution. (He would later play a role in the first major revision of the US Copyright Act in 1831). 2Oren Bracha, ‘Commentary on the U.S. Copyright Act 1831‘, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer (2008).

Other authors who played a role include Jeremy Belknap, writer of the first modern history in America, the History of New Hampshire, and Thomas Paine, whose pamphlets proved indispensible to the American Revolution. 3William Patry, ‘The Colonies and Copyright’, in Copyright Law and Practice (2000).

But often overlooked is the part played by a lesser-known author — and a musician, to boot — in efforts to create American copyright law.

William Billings

The author is William Billings, the “father of American choral music.” Billings was born in Boston in 1746. He worked as a tanner but taught himself music, never receiving any formal training, and according to biographical reports, seemed to have been quite the character:

Billings was a mixture of ludicrous, eccentric, commonplace, smart, active, patriotic and religious elements, with a slight touch of musical and poetical talent. To this side of the tanner-composer’s moral nature his personal appearance and habit formed a harmonious sequel. He was somewhat deformed, blind of one eye, one leg shorter than the other, one arm somewhat withered; and he was given to the habit of continually taking snuff. He carried this precious article in his coat-pocket made of leather, and every few minutes would take a pinch, holding the snuff between the thumb and clinched hand. To this picture we must add his stentorian voice, made, no doubt, rough as a saw by the effects of the quantity of snuff that was continually rasping his throat. 4Frédéric Louis Ritter, Music in America, pg. 60 (Charles Scribner’s Sons 1884).

Critically panned 5Ritter, Id., says, “Nevertheless, Bill Billings remained an awkward harmonist and a worse contrapuntist … not to speak of hideous consecutive fifths and illogical progressions of octaves, motivi, without any inner aesthetic connection, chase each other, without rhyme and reason, from one end of the scale to the other; chords and harmonies tumble upon each other without order and euphony, playing carnival in the hearer’s ears.” but popular, Billing’s works seem to capture the quintessence of American spirit. Though “crude, unrefined, and even vulgar”, and “scarred with glaring imperfections”, they contained a “buoyancy of rhythm, originality, life and melodic fluency.” 6A Hundred Years of Music in America, ed. W.S.B. Mathews, pp 25-29 (Theodore Presser, 1900). His “lively and spirited” psalms were a welcome change from the old “slow isochronous” hymns, which aided in their wide acceptance. 7Musical Reporter, no. 1 vol. 7 (1841).

Not everyone welcomed Billings’ new style of music, however. Indeed, some accounts seem reminiscent of more modern day accounts of new trends in music:

These old bigots must have been paralyzed at the new style of psalm-singing which was invented and introduced by a Massachusetts tanner and singingmaster named Billings, and which was suggested, doubtless, by the English anthems. It spread through the choirs of colonial villages and towns like wild-fire, and was called “fuguing.” …

All public worshippers in the meetings one hundred years ago did not, however, regard fuguing as “something sweet everywhere,” nor did they agree with Billings and Byles as to its angelic and ecstatic properties. Some thought it ” heartless, tasteless, trivial, and irreverent jargon.” Others thought the tunes were written more for the absurd inflation of the singers than for the glory of God; and many fully sympathized with the man who hung two cats over Billings’s door to indicate his opinion of Billings’s caterwauling. An old inhabitant of Roxbury remembered that when fuguing tunes were introduced into his church “they produced a literally fuguing effect on the older people, who went out of the church as soon as the first verse was sung.” 8Alice Morse Earle, The Sabbath in Puritan New England, pp 218-221 (Charles Scribner’s Sons 1891).

Billings’ popularity grew as he turned to patriotism during the Revolutionary War. He penned the tune, “Chester“, which became known as the first unofficial National Anthem. The song was said to have been “frequently heard from every fife in the New England ranks” during the war. 9Musical Reporter, Id.

Let tyrants shake their iron rod,

And Slav’ry clank her galling chains,

We fear them not, we trust in God,

New England’s God forever reigns.

Billings’ Copyright Bill

William Billings hoped to have a successful career as a songwriter. In November 1770, Billings petitioned the Massachusetts House of Representatives, “praying that he may have the exclusive Privilege of selling a Book of Church-Musick compos’d by him self, for a certain Term of Years.” Over the next two years, Billings continued his petition until he was able to bring a bill in front of the legislature. Both the Massachusetts House of Representatives and the Council eventually passed the bill.

Bracha notes that this is “This was an important landmark in American copyright history.”

For the first time an author rather than a printer or a bookseller applied to receive exclusive privileges in his own work. Two and a half centuries after printing privileges were granted to authors in Venice, France, Germany and England, an American legislature was willing to bestow rights on an author as such. In Britain the Statute of Anne had formally conferred rights on authors since 1710 and during the eighteenth century authorship had become the dominant ideology of copyright law and discourse, but in America Billings’ petition and Bill constituted the first appearance of the author as a claimer of rights.

Unfortunately, Billings never got his bill. Massachusetts Governor Thomas Hutchinson vetoed it and several other bills without comment. Tensions between the Loyalist Governor and the more radical legislature were already growing, so it is likely that Billings’ bill was simply a victim of politics.

Also unfortunate: Billings never escaped poverty during his life. He was buried in an unmarked grave even though his music remained popular, reprinted freely without compensation throughout the States.

Two hundred twenty five years later

US copyright law has come a long way since Billings’ time. In the 225 years since the Copyright Clause was drafted, the law has expanded to include artistic and creative works beyond books and maps. The entry of the US into the international copyright realm in the nineteenth century allowed American creators to compete on a level playing field with foreign authors. 10“More authors came to public attention with the growth of interest in the novel, many of them Americans after the International Copyright Law of 1891 for the first time made their works no more expensive to issue than those by foreigners. After 1894 more novels, though not always more popular novels, came from Americans than from Europeans.” The popular book: a history of America’s literary taste, James David Hart, pg. 185 (Univ. of Cali. Press 1950). Today, US films, television shows, music, and books are enjoyed across the globe.

As with any legal doctrine, copyright will continue to face challenges in the face of societal and technological advancements. But securing the exclusive rights of authors remains a valuable and viable mechanism for promoting the progress of the arts and sciences.

References   [ + ]

1. Oren Bracha, Commentary on John Usher’s Printing Privilege 1672, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer (2008).
2. Oren Bracha, ‘Commentary on the U.S. Copyright Act 1831‘, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer (2008).
3. William Patry, ‘The Colonies and Copyright’, in Copyright Law and Practice (2000).
4. Frédéric Louis Ritter, Music in America, pg. 60 (Charles Scribner’s Sons 1884).
5. Ritter, Id., says, “Nevertheless, Bill Billings remained an awkward harmonist and a worse contrapuntist … not to speak of hideous consecutive fifths and illogical progressions of octaves, motivi, without any inner aesthetic connection, chase each other, without rhyme and reason, from one end of the scale to the other; chords and harmonies tumble upon each other without order and euphony, playing carnival in the hearer’s ears.”
6. A Hundred Years of Music in America, ed. W.S.B. Mathews, pp 25-29 (Theodore Presser, 1900).
7. Musical Reporter, no. 1 vol. 7 (1841).
8. Alice Morse Earle, The Sabbath in Puritan New England, pp 218-221 (Charles Scribner’s Sons 1891).
9. Musical Reporter, Id.
10. “More authors came to public attention with the growth of interest in the novel, many of them Americans after the International Copyright Law of 1891 for the first time made their works no more expensive to issue than those by foreigners. After 1894 more novels, though not always more popular novels, came from Americans than from Europeans.” The popular book: a history of America’s literary taste, James David Hart, pg. 185 (Univ. of Cali. Press 1950).

1 Comment

  1. Just a minor correction.

    “But securing the exclusive rights of authors remains a valuable and viable mechanism for promoting the progress of the sciences.”

    Alternatively:

    “But securing the exclusive rights of inventors and authors remains a valuable and viable mechanism for promoting the progress of the useful arts and sciences.”

    Of interest to me is that not all “rights” are grounded in Article 1, Section 8, Clause 8. One example is the Plant Variety Protection Act of 1970, which, presumably, is grounded in the Commerce Clause. Likewise, while there is no federal law directed specifically to trade secrets, there are numerous federal statutes that address them by implication. To date, no federal law of trade secrets, akin to the UTSA or the Restatements of Torts and Unfair Competition, has been enacted, though many have urged such a law.