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Is O Canada Original? Thoughts on Musicology and Copyright

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August 4, 2020

O Canada!

Our home and native land!

True patriot love in all of us command.

Car ton bras sait porter l’épée,

Il sait porter la croix!

Ton histoire est une épopée

Des plus brilliants exploits.

God keep our land glorious and free!

O Canada, we stand on guard for thee.

O Canada, we stand on guard for thee.

These words will stir patriotic feelings in any Canadian. They are, of course, the words to our beloved national anthem (in the bilingual version commonly heard at hockey games and other events). “O Canada” was written by Quebec musician and composer Calixa Lavallée in 1880.

A recent study by musicologist Ross Duffin now claims that “O Canada” is not “original”, but rather, an amalgam of snippets from other musical pieces.[1] This is fascinating subject matter for all musical afficionados. Any Canadian opera buff who has listened to the opening bars of “March of the Priests” from Mozart’s “The Magic Flute” could not help but think of the opening bars of “O Canada”. The Duffin study draws parallels between the national anthem and the Mozart work, as well as three other works: “Wach auf” from Wagner’s opera “Die Meistersinger”, the “Festklänge” symphonic poem by Liszt, and “American Hymn” by Matthias Keller.

While the Mozart, Wagner and Liszt works are part of the popular classical repertoire, the same cannot be said of the Keller work. In this context, it is interesting to note that Lavallée spent much of his life in the United States, including a stint as a musician with the Union Army during the American Civil War.[2] Could Lavallée have become familiar with “American Hymn” while enlisted, and subsequently been inspired by some of the musical themes in that work?

Fascinating to consider from a musical perspective, the question also raises issues relevant to copyright law. In particular, what is the line between inspiration on the one hand, and plagiarism on the other? While one is permissible, the other is verboten. Note that the terms of copyright protection in “O Canada” and the other pieces mentioned in the study have long expired (being valid in Canada for 50 years beyond the lifetime of the composers), so the issue of whether “O Canada” infringes the copyright in the other pieces is an academic one. Nonetheless, the basic principles of copyright law are interesting to review in the context of this study.

Copyright protects “original” works, meaning works that originate with the specific composer. The owner of copyright in a work, such as a musical work, has (among other rights) the sole right to produce and reproduce that work, and any substantial part of that work.

What constitutes a “substantial part” is a question that has long vexed litigants and the courts. Whether a portion of a musical composition is substantial or not depends more upon qualitative, rather than quantitative, standards. Thus, someone who copies a guitar riff which is only four (musical) measures long may not be copying a quantitatively large portion of a work which is dozens of measures in length, but if that guitar riff is instantly recognizable from the earlier piece, then that four-measure reproduction would be deemed to be substantial.[3] The definition of “musical work” in Canada’s Copyright Act does not require the work to be in writing, suggesting that the ultimate impression of the listener will be perhaps even more important than any written similarities between the works in terms of musical notation.[4] On the other hand, popular music (including music from the classical repertoire) relies upon a relatively limited number of chord progressions and key modulations which are considered to be pleasing to the ear. This is one reason that it can be very difficult to determine the line between inspiration and outright copying.

So what to make of the Duffin study? Perhaps one can do no better than to quote the words of the American jurist Learned Hand, cited with approval by the Ontario High Court in a case involving alleged copyright infringement of the popular piece “The Homecoming” written by Canadian composer Hagood Hardy:

It must be remembered that, while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagiarism.[5]

Thus, while one could argue about the characterization of “the infantile” ear, this author would personally prefer to think of “O Canada” as an inspired amalgam of earlier musical themes. True North strong and free!

 

[1] https://www.theglobeandmail.com/arts/music/article-expat-musicologist-contends-o-canada-not-an-original-composition/

[2] https://www.thecanadianencyclopedia.ca/en/article/calixa-lavallee

[3] See for example the English case of Hawkes & Son (London) Ltd. v. Paramount Film Service Ltd., [1934] 1 Ch. 593, in which a 20-second reproduction of a well-known marching song lasting 4 minutes in total was found to be a substantial reproduction.

[4] In Grignon v. Roussel (1991), 38 C.P.R. (3d) 4, the Federal Court Trial Division discussed the importance of the musical “hook” as the part which makes a piece instantly recognizable to a listener, and the importance of the “impression made on the ear” (at page 20).

[5] Darrel v. Joe Morris Music Co., Inc., 113 F. (2d) 80 (1940), cited in Gondos v. Hardy (1982), 38 C.P.R. (2d) 555 at 577 (Ont. H.C.).