Old Tunes

The poet​ and songwriter Sydney Carter – remember ‘Lord of the Dance’? – wasn’t the only observer to notice that the 1950s British folk song revival was being accompanied, and occasionally drowned out, by the clang of cash registers. His song ‘Man with the Microphone’ began:

As I roved out one morning
I was singing a country song
I met a man with a microphone
And oh he did me wrong.
He sat me on a grassy bank
Took out a reel of tape
And had my country ditty down
Before I could escape.

In 1957 Vera Lynn, who died last month at the age of 103, recorded a song called ‘Travellin’ Home’. Within a few days the record had sold 27,000 copies and the sheet music more than 3500. This attracted the attention of J. Curwen & Sons, which in 1939 had published a strikingly similar song, ‘Westering Home’, by Sir Hugh Roberton (1874-1952), the founder and director of the celebrated Glasgow Orpheus Choir:

Westering home, and a song in the air,
Light in the eye and it’s goodbye to care.
Laughter o’ love, and a welcoming there,
Isle of my heart, my own one.

When, with Roberton’s executors, Curwen sued Lynn and her record company, Decca, for breach of his copyright, their counsel explained that although Roberton hadn’t composed the entire song he had written an accompaniment to a traditional air and ‘done a certain amount of original composition’, sufficient to give him copyright in the melody.

There was no question that the words were Roberton’s, or that ‘Westering Home’ as a song was his work, but it wasn’t disputed that the same tune was used in other traditional songs – ‘The Mucking o’ Geordie’s Byre’, ‘Bonnie Strathyre’ and ‘Eilean mo Chridhe’. All of these were played at a stately pace for Mr Justice Cross by an articled clerk, Gerald Pointon, on a piano squeezed into the courtroom. If Curwen was to win, the tune used by Roberton had to be separately capable of being copyrighted and pirated.

Since the war, ‘Westering Home’ had become well known as a concert piece. It was pretty obvious that the authors of ‘Travellin’ Home’ had used most of the melody of Roberton’s song and set their own not very good lyrics to it. The question was whether it was possible now to treat Roberton’s score as an original musical work and whether, as his publisher’s counsel breezily put it, ‘the fact that part of “Westering Home” closely resembled a traditional air was wholly beside the point.’

The consequent lawsuit, pitting Roberton’s executors and publisher against Lynn, her agent, the A&R man and Decca Records, didn’t come to trial until 1960. By then specialist solicitors had moved into Soho, correctly judging that the newly prosperous inhabitants of Denmark Street would prefer to have their lawyers on hand. The solicitors for the plaintiffs instructed K.E. Shelley, a specialist QC with a reputation for belligerence. F.E. Skone James, the editor of the leading textbook on copyright law, was his junior. Lynn’s team went into battle with a single junior counsel, Joseph Penny, and it was from him some years later, when I was briefed with him in an unrelated case, that I learned about the turn of events that had won him the case.

Although the judge had announced at the start of the hearing that he didn’t read music, his concluding judgment showed a shrewd comprehension of what, musically speaking, had been going on. He recounted that Decca’s A&R man, Richard Rowe (who was to become twice famous, once for signing the Rolling Stones and once for turning down the Beatles),

made a number of journeys to Scotland in the years following 1950 and became impressed with the financial advantages which might accrue from giving a modern treatment to old Scottish tunes – ‘bagpipes with a beat’ as a reviewer of the defendants’ song put it … He was very vague as to when and where he had first heard the tune which he called ‘Westering Home’ … In the early part of 1957 he met the third defendant, Alex Masters, who is commonly known as Jack Fishman, and is a song writer, and told him of his idea, humming a few bars of each of the three tunes … Mr Fishman … considered that ‘Westering Home’, which he knew himself perfectly well, was the most suitable for the purpose in hand, and he wrote a new lyric for it which he called ‘Heading for Home’.

Fishman, the judge pointed out,

cannot read music, so having composed the new words and having the music of the song in his head, he went with Mr Rowe to see a mutual friend of theirs, Mr Stanley Butcher, who is a musician … Mr Butcher took down the music note by note. He then played through the music to Mr Rowe and Mr Fishman. Mr Rowe suggested various changes in the words, including a change in the title from ‘Heading for Home’ to ‘Travellin’ Home’, and a few changes were also made in the music. The version of the music as it emerged in its final form after the meeting was, as might be expected, very close indeed both to the voice line of ‘Westering Home’ as published and to the published version of the music played by the Scots Guards Band.

In other words, it was not disputed that the immediate source of the tune of ‘Travellin’ Home’ was the tune associated with ‘Westering Home’, wherever Rowe and Masters had picked it up. However, Curwen needed to establish not only that it had been taken from Roberton’s adaptation, but that the tune of ‘Westering Home’ was itself an original composition. On both rocks their case foundered.

It did so because the hearing, which was spread over three days in May 1960, attracted news coverage which came to the notice of a number of former regimental pipers. From what Penny told me years ago, and from what I recently learned from Gerald Pointon (a graduate in music and law, then the newly hired articled clerk to the defendants’ solicitors, now retired after a career in international arbitration), the pipers were last-minute witnesses who had been put in the witness box without even making formal witness statements.

The judge was not satisfied that Rowe and Fishman’s knowledge of the tune could be traced to Roberton’s published score:

It is true that the printed voice line of ‘Travellin’ Home’ is substantially identical with the printed voice line of ‘Westering Home’, but it is not enough for the plaintiffs to show that the two printed records of the old tune are identical; they must go on to show that in producing their printed record of it, the defendants made a direct or indirect use of the plaintiffs’ printed record of it. On the evidence there can be no question of any direct use by the defendants of the record of the tune made by Sir Hugh. Mr Fishman cannot read music and gained his knowledge of the tune exclusively from hearing it played or sung. The plaintiffs, therefore, have to establish that Mr Fishman’s knowledge of the tune was derived indirectly from the record of it made by Sir Hugh.

The plaintiffs’ counsel had proposed a linkage that went from Roberton through an HMV recording and the repertoire of the band of the Scots Guards to Fishman. ‘In my judgment,’ the judge said, ‘none of the links in this chain of causation will bear very much strain.’

By contrast, the defendants, the judge said,

called no fewer than six pipers, who all gave evidence to the effect that the whole tune, not only the refrain but also the verse section, was well known to them as a piper’s tune before the publication of ‘Westering Home’ … They knew the tune as a whole either simply as an old Highland air, or as a different arrangement of ‘Bonnie Strathyre’. One of these witnesses, Mr Mathieson, first heard the tune … when he was a small boy. The others appear to have learned it when they were pipers in the Scots Guards in the years between the wars, but they agreed that the tune had not been played by the Scots Guards band at that time, and that they had only played it at dances, as a waltz, or at pipers’ meetings, or privately for their own pleasure. Clearly knowledge of the whole tune was confined to a comparatively narrow circle of pipers.

‘In 1954,’ the judge noted,

a volume containing a number of standard settings of pipe music used by the Scots Guards was published and in it the tune appears … as a slow march entitled ‘Westering Home’, with the name ‘Eilean mo Chridhe’ in brackets after it. When the pipers who gave evidence for the defendants were shown the music of this tune in the book they identified it as the old tune which they had played on the pipes years before the song was written.

According to the daily Times law report, Pipe-major Robertson, formerly of the Scots Guards, said he had played the tune ‘for many years on village greens and at debutante dances’. Pipe-major Marshall said he had first heard it ‘before he transferred from the Guards in 1924’ and knew it ‘as an old Highland air. It was his favourite, and when he felt depressed he used to go away on his own and play it.’ Pipe-major Mathieson, who was ‘born in the Highlands and started to learn the pipes when he was seven’, said he had first heard it in 1910, played by his cousin, who told him it ‘had no name but was an old Highland air’.

It seems that the six pipers had come forward because early in the trial the plaintiffs had called the queen’s piper, Pipe-major Crabb, to testify that he had never heard the tune before 1949. In response, Pipe-major Marshall gave an unforgettable account of going alone into the hills in full regalia to play the tune as his regiment, which was stationed abroad, was preparing to leave for good (a Larkinesque moment: ‘Next year we are to bring the soldiers home’). He had learned it long before ‘Westering Home’ was composed; Pipe-major Mathieson had first heard it before the Great War. The emotional impact of the older pipers’ evidence transformed the character of the case from an attempt to protect an original composition into an attempt to appropriate the Highlands’ musical heritage. Penny was in no doubt that their evidence clinched the case for Vera Lynn’s side. Yet who now sings ‘Travellin’ Home’? It is ‘Westering Home’ that has lived on, its lyric Roberton’s, its melody common property.