In 1918 the renowned St. Petersburg-trained violinist Toscha Seidel published a work for violin and piano titled “Eïli, Eïli.” The phrase “Traditional Yiddish Melody” appeared under the title, and the plaintive tune featured the augmented seconds and alternating duple and triple rhythms long associated with eastern European Jewish song. When Seidel performed the work at Carnegie Hall that same year, the critic for the New York Times identified the piece as “his own arrangement of the Hebrew prayer ‘Eili Eili.’” The violinist Mischa Elman, who like Seidel was a former pupil in the St. Petersburg Conservatory studio of Leopold Auer, published a new adaptation “Eili, Eili” in 1922, in a score that described the music as “A Traditional Jewish Melody” (LISTEN).
Opera singers also performed “Eili, Eili,” beginning with Sophie Breslau’s acclaimed 1917 rendition at the Metropolitan Opera. In some contexts the music was identified as a “Religious Prayer,” while vaudevillian Belle Baker’s 1919 record stated that the text was “In Jewish” and opera singer Rosa Raisa’s called it a “Traditional Hebrew Melody.” The music made its way into other genres, too: for example, it was performed hundreds of times by the orchestra that accompanied screenings of the silent film The Golem, based on a Jewish legend, during its New York run at the Criterion Theatre. By 1920 the melody had become so ubiquitous that it was the subject of a playful parody in Leo Wood and Archie Gottler’s number “That Eili Eili Melody,” whose chorus began, “That melody called ‘Eili, Eili,’/ Is always haunting me.”
How, then, did this cherished Jewish folksong find itself at the center of a heated copyright infringement case brought by the Yiddish operetta composer Jacob Koppel Sandler against the music publisher Joseph P. Katz, argued before the Honorable John C. Knox, in a New York City federal courtroom in 1925? Sandler claimed that “Eili, Eili” was in fact an original composition he had written in 1896 for a production of M. Horowitz’s Yiddish operetta The Hero and Brocha, or the Jewish King of Poland for a Night, directed by the Yiddish theater impresario Boris Thomashefsky at the Windsor Theatre in New York. He had composed the number for the actress Sophie Karp to sing as she hung from a crucifix, enacting a young woman’s medieval martyrdom for refusing to repudiate her Jewish faith. Sandler only attempted to copyright “Eili, Eili” in 1919, however, after learning that it had become an international success, and he was suing Katz for violating his copyright by continuing to publish arrangements of the music.
Katz testified that he had no knowledge that the melody was by Sandler; to the contrary, his father, an immigrant from eastern Europe, had hummed it to him decades earlier, and he had assumed it was a folksong. At trial, the prominent musician and author Lazare Saminsky recounted that he first heard the song in St. Petersburg and had “concluded that the composition was a folksong,” following which it was published in “a Russian encyclopedia.” At the same time, however, it was established by Yiddish theater participants testifying for the plaintiff that a number of musicians who had played in the orchestra for The Hero and Brocha had returned to Russia in the intervening years. Perhaps it was through them that the melody became known there.
On the last day of the trial, the defense attorney for the publisher charged with copyright infringement, himself a former concert violinist, brought his instrument into the courtroom and performed an arrangement of the disputed melody. As the Times recounted:
Abraham I. Menin, counsel for the defendant … took his violin and with the score of “Eili, Eili,” propped against a pile of law books, played the Jewish lament. The notes reached the corridors and attracted a crowd. An attendant closed and locked the doors of the courtroom and there was a silence until the music ceased. A tendency to applaud was checked by Judge Knox.
Judge Knox ultimately decided in favor of the defendant, the publisher Katz, on a technicality of copyright law: too much time had elapsed between the alleged composition of the tune and the filing of the lawsuit.
In response to the verdict, Sandler lamented, “What I feel is—is like a father that’s told he can’t have his own child.” Judge Knox later wrote in his memoir that he felt sorry for Sandler: “It is probable … that Sandler … really wrote it, but I did not have to decide the matter. The injunction was asked for on the basis of Sandler’s copyright.” By the time Sandler applied for copyright, the music had entered public domain, in legal terms; in the terms used by musicians who arranged and performed it, the music had become a folksong, as its origins were rapidly forgotten and its melody became increasingly familiar.
My book Sounding Authentic: The Rural Miniature and Musical Modernism takes the curious story of “Eili, Eili” as a point of departure from which to examine a genre of arrangements of folk music and original “folk-like” pieces for solo or small ensemble that I call the “rural miniature.” Works in the genre, such as Elman’s and Seidel’s versions of “Eili, Eili,” Manuel de Falla and Paul Kochanski’s Suite populaire espagnole, Joseph Achron’s “Hebrew Melody,” and Béla Bartók’s Romanian Folk Dances, were played frequently in recitals in the early twentieth century, and many have persisted to this day as canonic “encore” pieces and pedagogical exercises for students of violin, cello, piano, and other instruments. They can be difficult to master, incorporating flashy, virtuosic techniques. The composition of rural miniatures in the early twentieth century emerged from the synthesis of contemporary developments in methodologies of folksong collecting, evolving ideologies of political nationalism, and the rapid emergence of sound recording technologies. In Sounding Authentic, the rural miniature provides the basis for a study of the search for authenticity that preoccupied so many musicians during the modernist period—including those who wrote, performed, and listened to the various versions of “Eili, Eili”—in their exploration of folk music and their incorporation of new ethnographic findings into the composition and performance of art music.