A Costly Glass of Water
The music business of today relies heavily on the performing right element of the Intellectual Property Right/IPR laws. Unlike many other IPRs, the performing right did not come about as a result of technological inventions for the distribution of artistic content. The background is, rather, to be found in the general economic growth in the mid-nineteenth century which, in turn, was a result of the Industrial Revolution. 'Economic growth' is, however, a complex causal background that eventually needed a particular event which could function as a catalyst for the new IPR to be recognised, accepted (at least as a legal act) and implemented. This event has been identified as the Bourget v. Morel case in Paris 1847-49. It resulted in the legal framework on which the music industry of today, penetrating every aspect of our lives, relies. It is strikingly odd how this event has been narrated as a mere anecdote. This paper provides more details.
The author gratefully acknowledges the financial support of The Paul and Marie Berghaus’s Endowment Fund, The Richard C Malmsten Memorial Foundation and The Grez-sur-Loing Foundation.
In Paris during the first half of the nineteenth century artistic creators maintained that they had a right to a share of box office revenues. This claim was tested in the Bourget v. Morel case which was heard in the Parisian courts of justice between 1847 and 1849.
Authors, composers and others based their stance partly on the French Literary and Artistic Property Act (1793), which explicitly gave composers the same legal protection as authors. Like similar acts already passed in other countries, the Act was directed at printed material. New issues introduced and settled in this Act were 1) a right or duty for 'officers of the peace' to intervene against pirate printers; 2) details of fines and 3) a post-mortem article. The very first article of the Act gave the copyright owner the right to 'transfer that property in full or in part'. In a report issued prior to the Act (1791) Isaac le Chapelier discussed the meaning of 'property' and how it could be transferred. What le Chapelier discussed explicitly was the fact that there was only one dramatic theatre in France: La Comédie-Française – which had been established and put in a privileged position by the former monarchy. However, the situation was the same regarding the opera, which had been established and privileged a decade before the dramatic theatre. In the Réglement concernant l'Opera donné à Versailles le 11 Janvier 1713 and the even more elaborate Réglement sur sujet de l'Opera donné á Marly le 19 Novembre 1714 King Louis XIV regulated how the opera was to be run, including a performing rights clause with detailed remuneration figures (Durey de Noinville, 1757). As a result of these réglements, librettists and composers were granted what was later to be called grands droits – performing rights regarding staged productions of pieces with music and words. Also prior to the Act of 1793 it was generally recognised that composers 'wrote' music. In the 1793 Act they were explicitly given the same legal rights over their works as authors. This opened up for the notion not only that the music for operas should be granted performing rights but also music to songs and music without words. 
The general economic growth spurred by the Industrial Revolution and the subsequent rise of the middle-classes led to a widening of the audience for public concerts in the large European cities (Weber, 1975; Johnson, 1996; McVeigh, 2008; Werner et al., 2008). William Weber provides details of concerts for ‘the low-status public’. Weber, furthermore,
sees a strange parallel with the explosion of popular music in Europe and the United States – indeed worldwide – between 1955 and 1970. During both periods there appeared dynamic new kinds of performers (virtuosi and rock stars), a larger public (the middle class then and hip-minded young people in more recent years) and modernised commercial frameworks (the new concert world and the enlarged record industry) (Weber, 1975, p.127)
It was this audience segment which, through its increased financial status, was found in the specific kind of ‘concert’ of interest here: the Parisian cafés-concerts (or ‘caf'conç’). In these concerts, the music, food and beverages supplemented each other (Caradec & Weill, 1980). The concept of a share of the box office revenues was not applicable to these concerts as the musical entertainment was used to attract audiences who would purchase the food and drink which were the main sources of income for the proprietors. Some proprietors, instead of charging entrance fees, increased the prices of what was served to customers when there was musical entertainment. Émile Mathieu (1844-1932), who later went on to compose more 'serious' music, was very heavily involved in the cafés-concerts business at the beginning of his career. In his book Histoire des Cafés-concerts from 1863 he explained the nature of the business: 'The café-concert is an establishment where for a small fee in the form of an increase in the price of regular café consumption, you can hear music, ballads, ditties, by artists, some of whom are not without merit' (cited by Kimminich, 1991; my translation). Although music had been used to complement drinks earlier in French history (Constantin, 1857 & 1872) the cafés-concerts in Paris ‑ the first of which, Le Café du Midi, opened in 1835 ‑ were the first time this form of entertainment became an 'industry'. Café du Midi was run by the artists themselves. Soon they were challenged by the Café des Ambassadeurs, which was re-opened after refurbishment in 1841 and run by a café proprietor/concert producer. Constantin (1872, p.100) reports that this outdoor café-concert could accomodate 1,200 spectators. The success of the phenomenon encouraged its spread to many other countries, often in slightly different forms which appealed to local audiences.
What was performed in the café-concerts was light music of a kind which appealed to a large audience. Like today, more money circulated in this kind of popular music industry than in the more ‘serious’ high-status concerts. Thus, it is not surprising that the struggle for performing rights to be applied outside of the opera was first focused on the thriving cafés-concerts. The progress on performing rights which was brought about by the Bourget v. Morel case was sneered at by composers of more ‘serious’ music, especially in the Germanic countries. Composer and lawyer Johann Vesque von Püttlingen did not recommend that composers should advocate that the French petit droit should be enforced in Germany and Austria. He argued that it was not in line with their Künstlerehre (artistic honour). If they accepted it they stood the risk of being disqualified as avaricious (Vesque von Püttlingen, 1864, p.61).
The event that spurred the Bourget v. Morel case is described as an anecdote in the writings of two former presidents of collective performing right licensing societies, Jean-Loup Tournier of the French Société des Auteurs, Compositeurs et Éditeurs de Musique (SACEM) and Gunnar Petri of the Swedish Svenska tonsättares internationella musikbyrå (STIM). The Bourget v. Morel case eventually resulted in the concept of petits droits (performing rights outside theatres) on which all performing right licensing agencies depend. Obviously, this, in turn, was dependent on the decision of the French courts to grant composers and lyricists legal protection for performances of their work and not only for their printed items.
In a previous paper (Albinsson, 2012) I suggested that the SACEM, the world's first collective performing rights licencing society, was founded when potential revenues could be anticipated to cover transaction costs, for instance, for 1: meccording to Tournier and Petri meme
This short paper provides a thorough reading of the Bourget v. Morel case, based on an examination of contemporary documents. urnal des Commerce du départemeThe docume.
The contribution of this paper lies in its more accurate description of what actually occurred and its economic implications for the production of music. Together with my previous article on the introduction of petits droits (Albinsson, 2012), this article should make a significant contribution to understanding of the history of western music.
2. The incident
The librettist, lyricist and playwright, Ernest Bourget (1814 – 1864) may be little known today but among contemporary Parisians he seems to have been highly cherished as the author of, mostly, humorous texts. He supplied the words to Jacques Offenbach's musicals Bouffonneries: Tromb-al-cazar ou Les criminels dramatiques and Les Dragées du baptême, both first performed in 1856. Les deux pêcheurs ou le lever du soleil, 1857, and La Leçon de chant électro-magnétique, 1867. provided lyrics for songs by Victor Parizot and Paul Henrion (e.g. Le Vigneron, 1855). first performance
In March 1847 Ernest Bourget, according to Jean-Loup Tournier and Gunnar Petri (neither of whom indicate primary sources), refused to pay for the orgeat syrup he had consumed at a 'café-concert' at Café des Ambassadeurs on the ground that the proprietor had not paid him for the use of his music, which was performed in the café. The proprietor, a M. Morel according to Tournier and Petri, explained that the price of the beverage was raised from the usual 40 centimes to 50 centimes because he had to pay the musicians (Tournier, 2006, p.28; Petri, 2000, p.104).  Bourget, according to Tournier and Petri, asked: 'And composers and authors of the songs played, are they not also entitled to their remuneration?'. Morel replied: 'The authors? They are not of my concern. I would like to know what requirements they may have on their little songs that belong to all of us once they have been published' and 'if we had to pay the authors as well, where would that end?'. In Jean-Jacques Lemoine's (1950)and s his composer friends Victor Parizot and Paul Henrion. Jacques Migozzi (2000) and François Caradec and Alain Weill (1980) also referred to this unsubstantiated legend. The latter authors also claimed that the publisher Jules Colombier covered Bourget's trial costs.
The only evidence I have found which supports the story of the Café des Ambassadeurs is that the proprietor of the café, Madame Varin, appeared in the same court as M. Morel, who had been sued by Ernest Bourget on the basis of another event. It was this other event which was reported in the contemporary press.
If you believe, Monsieur, that you do not have to act according to this decision, I warn you that at the first offense I will ask for the bailiff. (Le Droit, 1847, my translation)
3. The first Tribunal de Commerce de la Seine hearing, 8 September 1847
There was no response to this letter, so Bourget called M. Morel to appear in front of the Tribunal de Commerce de la Seine. Mme Varin was summoned, too. B
me each summer evening to sing in front of their cafés, me me
As M. Morel and
meme, they claimed, of 8 May
4. The second Tribunal de Commerce de la Seine hearing, 3 august 1848
Petri (2000, p.104) suggested that this decision was based on the hope that the court would be influenced by revolutionary sentiments and would therefore favour Bourget. In fact censorship was re-established on 29 July, a few days before the verdict (Caradec & Weill, 1980, p.12). mememed in their establishments, despite the verdict of the tribunal the year before.
According to the Gazette des tribuneaux (Gazette, 1848) 'the majority
mentions witness statements of performancesme tribuneaux (1849) it had been difficult to establish the crime because it was committed during hours when the bailiff could not issue fines. However, someone had taken notes of what had been performed:
7 June in Café des Ambassadeurs:
- La Fille de ma portière
- Le Grand Dadais
- L'A, B, C, D, ou la leçon de lecture
12 June in Café Morel:
- La Fille de ma portière
- Le Grand Dadais
- L' A, B, C, D, ou la leçon de lecture
- La Mère Michel au Théâtre des Italiens
me amount from Mme Varin.
5. The Cour d'Appel de Paris hearing, 26 April 1849
measonBourget disputed this in the Cour d'Appel de Paris supported by his lawyer M. Paillard de Villeneuve. The court confirmed the sentence of the tribunal and, me
6. Legal aftermath
members rose rapidly. In 1852 the SACEM counted 350 members; in 1858 the membership had increased to 760 (Lemoine, 1950, p.18).
members of the meme
mememememememeemememmeLemoine (1950, pp.29–54), furthermore, lists 145 other cases in which French courts discussed legal matters of importance to the SACEM before 1950! The most difficult item seems to have been 'la radiophonie', with 25 verdicts listed.
.50 francs (appr. €36,450 in 2006). 
However, a decade later the salaries of singers and musicians performing in the cafés-concerts were substantially higher than rural wages. According to Émile Mathieu (cited by Caradec & Weill, 1980, p.12) singers earned 150 – 700 francs per month, a chief conductor 300 – 400 francs per month and orchestral musicians 70 – 150 francs per month. The garçons might make 300 – 400 francs per month. On weekdays box office income was typically 500 – 1000 francs and on a good Sunday the gross income could amount to 2500 – 3000 francs. The world's first performing rights society was established by the Parisian composers two years after the Cour d'appel verdict: the Société des Auteurs, Compositeurs et Editeurs de Musique/SACEM.
Annales d'agriculture, 1841. Annales de la Société d'agriculture, arts et commerce du département de la Charente. Avaliable at: gallica.bnf.fr/ark:/12148/bpt6k209056v.image (Last accessed 11 November 2014)
Chevallier, Emile, 1887. Les Salaires au XIXe siècle. Paris: Librairie nouvelle de droit et de jurisprudence, Arthur Rousseau (ed.). Available at: gallica.bnf.fr/ark:/12148/bpt6k863346 (Accessed 28 June 2013)
Constantin, Marc, 1872. Histoire des Cafés-Concert et des cafés de Paris, Paris: Renauld.
Goubault, Christian, 2003.
Vesque von Püttlingen, Johann, 1864. Das Musicalische Autorrecht – eine juristisch-musicalische Abhandlung. Wien: Wilhelm Braumüller.
Volgsten, Ulrik, 2012. Musiken, medierna och lagarna – musikverkets idéhistoria och etablerandet av en idealistisk upphovsrätt. Möklinta: Gidlunds förlag.
 Some authors discuss how and when ‘abstract’ music was included in the performing right concept. Ulrik Volgsten (2012, pp.171-172) sees it as a result of the Bern Convention. However, the French Act of 1793 does not exclude music without words. Thus, it seems that this debate concerns the legal implementation of the French Act and similar laws in other countries rather than a progression of what was actually covered in these legal documents.
 According to Delihu the price was 2 francs and the drink was not an orgeat syrup but an eau sucré (Delihu, 1911, p.59).
 Today we often hear the opposite argument from the piracy movement: recorded songs, when downloaded or broadcast, act as advertisements for live performances.