No 8 — November 1977 Edited by Michael Walters
SHADBOLT'S SONG
As reported elsewhere in this issue, Imperial College O.S. produced Yeomen at Budleigh Salterton this summer past. It was intended to perform the deleted song for Shadbolt in this production, but this proved not to be possible. The following letter was sent to the holders of copyright in Gilbert's unpublished works (and in Gilbert's works published less than 50 years ago). It was composed largely by Michael Withers and Dick Stockton, though signed by the latter only:
Dear Sir, I am writing to you on behalf of Imperial College Operatic Society who are performing "The Yeomen of the Guard" in Budleigh Salterton, Devon for a fortnight beginning 27th July, as their annual tour/holiday. It has been the policy of the Society for the Producer and Musical Director to delve a little into the history and background of the operas performed and, to this end, we are very lucky in having the collaboration of Michael Walters who has done a not inconsiderable amount of research into Gilbert's draft manuscripts. It came as something of a shock to us to learn just how much the now accepted version of Yeomen differs from that originally conceived by Gilbert. While we may do no more than regret that some of the scenes which Gilbert planned in his drafts never came to fruition, certain of Gilbert's ideas were, we discovered, cut only after they had been polished and set to music by Sullivan. We have traced the music to three of these pieces, the solo songs for Meryll and Shadbolt and the alternative setting of "Is life a boon". While Gilbert had every justification in asking Sullivan to reset "Is life a boon", and it would be doing his intentions an injustice to even consider reviving the original setting, we do feel, however, that the inclusion of the solo songs for Meryll and Shadbolt could add immeasurably to their respective characters. Both actors would thereby be given a little more time and space to expound their natures and philosophies – time which would not otherwise be available to them. In my investigations I spoke recently to John Wolfson in New York and he was kind enough to put me in touch with Peter Murray who is, I believe, in possession of the orchestral parts. Peter was extremely helpful and suggested that, as we should very much like to perform the opera in a manner as close as possible to that originally conceived by Gilbert, we should get in touch with you regarding the performance of these "missing" items. I must apologise for the extreme short notice of this communication but, as I am sure you can imagine, it has taken quite a time to locate all the relevant information and we have had to consider the dramatic and musical implications at great length before arriving at our decision. I look forward to hearing from you in the very near future. Yours faithfully, R. STOCKTON.
The reply to this letter was acidly unfriendly, implying that amateurs had no right to hold such views on how G & S should or should not be done; stating that the Royal General Theatrical Fund Association (for whom the writer was acting) were reluctant to grant permission for the performance of the song, and that if they were swayed they would require a fee of £50.00. I knew nothing of this till I found a rather agitated and obviously upset Michael Withers on the other end of the telephone. When I saw the two letters I reacted rather violently and wrote the following letter:
Dear Colin, I have been shewn copies of the correspondence dated 8th and 13th July, respectively, which you have had with Imperial College Operatic Society on the subject of SHADBOLT'S SONG. As they chose to mention my name I wish to make it clear that I did not see their letter before it went to you, nor was I aware that they were proposing to write to you, nor indeed, whether they had definitely decided that they wished to do the song in question. Any "research" which I did for them was minimal, and consisted of no more than informing them what did exist. The main purpose of this letter, however, is to let you know that both I and they have been very hurt by the frigid tone of your letter, and I, particularly, am very disappointed that you have felt it necessary to hide behind the formality and anonymity of the firm. While I do not dispute that you are legally in the right, I cannot believe that it is morally right for such a large fee to be charged to an amateur company for the performance of something by which they will not stand to gain anything financially (and in which, in fact, they are likely to sustain a considerable loss). Nor do I believe that it is in the best interests of the author to refuse permission to perform a lyric merely because he chose to delete it before, and not after, the opening performance. Bearing in mind that laws of copyright were designed to protect authors from commercial exploitation, it does not seem to me that they were intended to be interpreted in this sort of way. Regarding the fourth paragraph of your letter, it does seem to me to be somewhat inappropriate that 66 years after an authors death, the Royal General Theatrical Fund Association (whoever they may be), should feel it necessary to dictate their views on the best way of presenting his works; which, in effect, is what they are doing. Such moral right, surely, died on 31st December 1961? It may well be that in certain circumstances it may not be in Gilbert's interests or in the interests of the opera to perform certain portions, but I feel that that, artistically speaking, should be for the performers to decide. This matter is, theoretically, none of my business, being a matter between you and the Society in question. They have however, involved me by mentioning my name in their letter to you, which was quite unnecessary, but done in the best of faith. It is presumably unnecessary for me to add that I am a friend of the Society (that will have by now become quite evident to you), and I am also a personal friend of the Musical Director of the Society, Michael Withers, who has been deeply upset by your unfriendly attitude. He is a young man with a heart of pure gold who cannot understand why the commercial world should wish to prevent him from doing something which the Society intend as a tribute of love and respect to Gilbert, the Master. No doubt he will learn the hard way as I have done over the years. This letter, therefore, may be partly interpreted as a mark of loyalty to a friend whose problems have become my problems and whom I do not propose to desert (this may or may not be something which you are capable of comprehending). I do not believe that your action is in the best interests of Gilbert, nor do 1 believe that Gilbert would have wished you to do it. Yours sincerely, Michael
This letter was not answered, and, perhaps significantly, another communication to the same recipient about a totally different matter, also went unanswered. After discussing the matter with various people I raised the matter with David Hughes, a University lecturer in Law, and a knowledgeable G & S addict. Several letters were exchanged on the matter, and I take the liberty of quoting from two of these:
26/9/77 It would seem unfortunately that Imperial College O.S. were caught perfectly legally by the law [of 1911]. What is disturbing, however, is the use made of the law. The £50.00 fee seems to me to be far too high. It would be different if the O.S. were a commercial body seeking to exploit the situation for gain, but it seems wrong to me to impose such high fees on an ordinary amateur body, and perhaps the point should be taken up with N.O.D.A.?
30/9/77 My studies lead me to the following conclusions:– 1. Copyright law is a fearful jungle in which the uninitiated should tread with extreme care, particularly as regards pre–1911 works. 2. Before 1911 the copyright period was the author's life plus 7 years, or 42 years whichever was the longer. In the case of unpublished material the position was complicated by the Dramatic Copyright Act 1833 and the Literary Copyright Act 1842 whose effects are mystifying even to experts, but which may have conferred a perpetual right in respect of performing rights. 3. In any work, however, subsisting in 1911, the Act of that year substituted the new copyright protection for all previous rights, i.e. for any work written after 1870 or by an author dying after 1905, the new copyright protection arose. This obviously covers most of the works of both Gilbert & Sullivan though dating is most important. 4. These rights were confirmed and continued by Section 2, subsection 3 of the Copyright Act 1956. Copinger & Skone James on Copyright, 11th Edn, para 272 says:
If a literary, dramatic or musical work in which copyright subsists has not, before the death of the author, been published, performed in public, or broadcast, and no device recording the work has been offered for sale to the public, copyright will subsist until the end of 50 years from the end of the calendar year which included the earliest occasion in which one of these acts is done.
Now that is the law so far as I can make it out. What I also want to do, however, is to ask some questions. 1. In it desirable that there should be alternative forms available of the G&S works using deleted or unpublished material? I think, yes, because otherwise the tradition will fossilise and the public will be deprived of unique opportunities to see various forms of a work. 2. Who is to stage these alternative operas? It can hardly be the D'Oyly Carte so we must look to amateurs. 3. Can amateurs be said to be indulging in Commercial gain and exploitation from such production? Hardly – their work in surely purely educative and of an entertaining nature. 4. Who stands to gain any real sums of money from keeping the unpublished material unavailable? Is there anyone? Best wishes, David.
One point still unclear from the above is whether a lyric, being intended to be merely part or a longer work, should be interpreted as a "work". Might it not be an arguable point that Shadbolt's Song, being an integral part of Yeomen, and having no proper existence or relevance apart from it, and should be considered to come out of copyright with the main part of Yeomen? It is true that Strephon had the problem of part of him living on after the rest of him was dead, but Gilbert himself admitted that this situation was pure fairytale! I would be very grateful if anyone who has views on this matter would write to me and expound them. MICHAEL WALTERS
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