Copyrighted Hymns in TLH

Years ago, at the latest when I was studying at a Lutheran seminary, I first encountered the rumor that the contents - though not necessarily the page formats - in The Lutheran Hymnal (Concordia Publishing House, 1941; hereafter TLH) were all in the pubic domain. I came into existence amid Lutherans who used TLH in weekly worship. I experienced the introduction of the succeeding hymnal, Lutheran Worship (CPH, 1982; hereafter LW), which was still the hymnal being used to train Missouri Synod pastors in leading worship when I was at the seminary in the late 1990s. Later still, as an organist/choir director of an LCMS church in St. Louis, I got to be part of a team that introduced CPH's Lutheran Service Book (LSB) to the congregation when it came out in approximately 2006. I have also, along the way, participated in the roll-out of another new hymnal (the Evangelical Lutheran Synod's Evangelical Lutheran Hymnary, c.1995), and belonged to a church that used still another (1913's Lutheran Hymnary), and taken every opportunity I could to study the contents of anglophone Lutheran hymnals and to assimilate them into my creative output, such as organ preludes, choir anthems, etc.

So imagine my disgust when I was first alerted, back in the days when LSB was being introduced, to the fact all TLH's contents aren't, in fact, public domain. More recently, I found on CPH's website a table specifying exactly which hymns are still under copyright protection, along with a notice that the LCMS publishing house intends to defend its rights to TLH in general until approximately the year 2036 - nearly a century from the book's publication date.

In other words, far from encouraging hymn-oriented creative writers, composers, commentators, and curriculum creators to make full use of our church's rich heritage of hymnody, CPH has stayed on top of all its renewals, pushing the assertion of its rights to the limits of the law.

Also, irritatingly, the format of their table of still-copyrighted hymns only gives hymn numbers, the copyright dates of the hymn texts or translations, and ditto of just a couple of tunes. You have to page through the book to find out which hymns are off-limits - or at least, virtually so, since any plan to use them founders on the slow, complex, and uncertain process of persuading the publishing house to give permission for it. A possible side-effect of this busy-work is that hymnody-oriented creators may feel discouraged from doing anything with any text taken from TLH, and will look elsewhere for material to work with. And that could mean missing opportunities to create excellent choral pieces, or writing original tunes or hymn arrangements, of pieces that in most cases really are in public domain.

So here I am to make it easy for you. If you are a creative artist with a fondness for Lutheran hymnnody, and you're worried about the legal ramifications of using anything printed in TLH, here are exactly which hymns to look out for. It's pretty much open season on the rest. Also, I will note along the way some practical alternatives to using the copyrighted bits of TLH, which may keep alive your dreams of doing something with one or more of these hymns.

TUNES
The good news is, CPH is only still defending its rights concerning two hymn tunes in TLH. Please understand that all the copyrights listed below are held by CPH.

The first is SALVATOR NATUS, the tune to hymn 86, "Christ the Lord to us is born." The credit line says the tune is a 14th century Bohemian product, so I gather the copyright only applies to the arrangement. A slightly catchier version of this tune appears under the title NARODIL SE KRISTUS PÁN in LW and LSB, set to the text "Let our gladness have no end." I think you could get away with using this tune, provided you come up with a public-domain translation of the text and a new harmonization. There's just no way CPH owns a 14th-century Bohemian melody.

The other tune is SEPTEM VERBA, © 1939 by Bernhard Schumacher, a wonderful tune set to the seven-part litany-type hymn on Jesus' seven last words, "Jesus, in Thy dying woes" (TLH 180). I hate to say it, but on this one you're just going to have to choose a different tune. Fortunately, there are some excellent alternatives. Get in touch if you want to know where to find them.

ORIGINAL HYMNS
Again mercifully, we find most of the copyrighted hymn texts in TLH are actually translations from hymns originally written in German, Latin, Slovak, Danish, etc. When it comes to those, you have options to work with - such as getting your own translation done, or going back to an older translation published before TLH. But there are a few sad cases where the hymn is just plan off-limits, unless you are willing to wrangle a permission out of CPH's copyright department. Hymns originally in English, that were evidently written for TLH, include:

• Hymn 482, "Dear Lord, to Thy true servants give," ©  1937 by W. Gustave Polack, who seems to have been to TLH what Jaroslav Vajda was to LW, or what Stephen Starke was to LSB.
• Stanzas 2-3 of Hymn 510, "Savior, sprinkle many nations," © 1927 by Polack. Stanza 1, by Arthur C. Coxe, is dated 1851, and so is not protected. 
• Hymn 629, "Let children hear the mighty deeds," altered form of Isaac Watts' 1719 text (stanzas 1-3, 5), plus an original stanza 4 © 1938 by the same Schumacher who composed SEPTEM VERBA. Actually CPH's list of copyrighted hymns doesn't make the distinction that it is only protecting Schumacher's stanza; it appears to claim ownership of the entire hymn, presumably on the grounds of "alt." Getting around this one might be as easy as going back to Watts' original version.
• Hymn 639, "For many years, O God of grace," © 1938 by William M. Czamanske, another frequent contributor to TLH.
• Hymn 640, "God the Father, Son, and Spirit," © 1941 by Polack - evidently one of those "written for that hymnal but never seen again" productions, of which TLH has remarkably few examples compared to other books (cf., for example, Service Book and Hymnal, 1958).¹

TRANSLATED HYMNS
Here's the damage from CPH's proprietary translations of hymns in TLH, with some remarks now and then about what can be done with them.

• Hymn 6, "Kyrie, God Father in heaven above," 12th-century Latin, 16th-century German, and translation © 1939 by Polack. What a shame! This is one of those great liturgical-paraphrase hymns from the Reformation period, traditionally attributed to Luther himself. But if you're not going to sing it straight out of the hymnal or via some other CPH copyright license, you'd better do your own translation or find one in an older, public domain work. I'm not sure the latter will work in this case, since this is in a certain class of classic chorales that TLH first helped popularize in English-speaking Lutheranism, to the extent it can be described as popular. It should be more widely known. It's a parade example (to borrow a phrase I picked up from Horace Hummel) of the kind of hymn that cries out for a new arrangement by one of today's gifted young church-music composers who are passionate about great hymnody. Their best chance is to collaborate with one of today's gifted young hymn translators!
• Hymn 7, "As we begin another week," 17th-century German by Martin Wandersleben, translation © 1940 by Polack. Meh, CPH can have it.
• Hymn 42, "O Thou Love unbounded," 1735 German text by J. J. Rambach, translation © 1940 by Polack.
• Hymn 45, "Now the hour of worship o'er," 1680 German text by Hartman Schenck, translation of stanza 3 © 1938 by Oscar Kaiser. For some reason (possibly an error in its table of copyrighted hymns in TLH), CPH does not seem to be defending the "composite" translation of stanzas 1-2, though many other "composite" translations are listed below.²
• Hymn 78, "Hail the day so rich in cheer," 15th century Latin, translation © 1940 by Polack. There are other, earlier translations of this hymn, though their meter is a little different, requiring a different variant of the tune.
• Hymn 81, "O Jesus Christ, Thy manger is," cento from a 1653 German hymn by Paul Gerhardt, composite translation © 1941. Generally, when it says "composite," that means you may be able to dig back through earlier hymnals and find one of the original translations it was modeled on, such as ones by Richard Massie or Catherine Winkworth. A good place to start is the old Evangelical Lutheran Hymn-Book, also published by CPH in various editions between 1912 and 1931.
• Hymn 82, "Come rejoicing, praises voicing," 17th-century Slovak by Tranoscius, composite translation © 1941. My advice under the previous number applies here as well, only with a change in the names of the earlier translators. The LCMS still has a non-geographic "Slovak District," a remnant of a 20th-century merger with the Slovak Evangelical Lutheran Church; the late Vajda was one of the treasures the synod reaped from that connection with Slovak-American Lutheranism. If this is the hymn you want to write your great cantata on, I would advise getting in touch with some of those SELC District folks and see if they can't put you in touch with pre-TLH translations of Tranoscius and his ilk, or with someone who can still translate from Slovak for you.
• Hymn 86 (again), "Christ the Lord to us is born," 15th-century Czech, to which CPH asserts © 1941. This is confusing, however, since the book credits the translation of stanzas 1-4 to Vincent Pisek (d. 1929), and stanzas 5-6 to John Bajus, 1939. Possibly, this was the first time Pisek's translation was published in English. But I still think CPH's ownership of the rights to his stanzas may be open to challenge.
• Hymn 89, "To Thee my heart I offer," 17th-century German, composite translation © 1941. I don't recall this ever being used in any congregation I have worshiped in, so again I say, meh.
• Hymn 90, "Come, your hearts and voices raising," 1667 German by Gerhardt, composite translation © 1941. This really is a pity. This is a great Christmas hymn. But by now, you know what I would advise you to do regarding a "composite" translation.
• Hymn 126, "Arise and shine in splendor," 1628 German by Martin Opitz (abbreviated), 1937 translation by Gerhard Gieschen. CPH's assertion of © 1941 is a bit confusing, but it may simply reflect the date of the translation's first publication. Again, it's a pity to see CPH clamp down on a classic Epiphany hymn like this, but there's always translating it anew, or combing old books for earlier versions.
• Hymn 142, "A Lamb goes uncomplaining forth," 1648 German by Gerhardt (cento), composite translation © 1941. Again, a pity. This is an incredibly important Passion hymn. Advice: the usual.
• Hymn 150, "Lord Jesus, Thou art going forth," with German stanzas by two different 17th-century authors, and Polack's translation dated simply "1940" in the book, but for some reason "© 1927, 1941" according to CPH. It's a big meh for me, since I don't think the hymnal is exactly the place for an allegorical dramatic dialogue between "Jesus" and "The Soul."
• Hymn 169, "Jesus Christ, our Lord most holy," 16th-century (Slovak? Czech?) by Michal Grodzki, translation © 1939 by Bajus. I like it, and I'm afraid it's going to be hard to replace Bajus' translation; so in this case, I have no good suggestions.
• Hymn 172, "O sacred Head, now wounded," 12th century Latin ascribed to Bernard, by way of 1658 German by Gerhardt, composite translation © 1941. This is "the" Passion hymn, so finding one's way behind the copyrighted CPH version will be important, at least for the next 20 years. You know what I would suggest.
• Hymn 187, "Christ is arisen," 12th century German, translation © 1939 by Polack. Unbelievable. But you know.
• Hymn 198, "He's risen, He's risen," a cento of C.F.W. Walther's 1860 Easter hymn, translated from German by Anna F. Meyer, © 1937. Again, this is kind of sad. But getting a new German translation isn't all that hard.
• Hymn 211, "Lo, Judah's Lion wins the strife," 17th-century Czech, translation © 1940 by Bajus. Again, this could be a harder translation to replace. And it's a pity, because each of several tunes I have seen associated with this hymn would be fun to work into a chorale motet.
• Hymn 216, "On Christ's ascension I now build," 1636 German by Josua Wegelin, translation © 1938 by Czamanske. Again, if there isn't an older translation to be found, it won't be too hard to create a new one. Hint: The Handbook to the Lutheran Hymnal is a good source for the original German texts of a lot of these hymns, in case you can't get hold of an old German Gesangbuch (which would be remarkable).
• Hymn 224, "Come, Holy Ghost, God and Lord," Luther's 1524 German, composite translation © 1941. Again, unbelievable. Again, you know what to do.
• Hymn 238, "All glory be to God alone," a 16th-century paraphrase of the Gloria sometimes attributed to Luther, translation © 1940 by Polack. Options: dig, or retranslate.
• Hymn 243, "Oh, that I had a thousand voices," a cento from Johann Mentzer's 1704 German, composite translation © 1941.
• Hymn 249, "Isaiah, mighty seer, in days of old," Luther's 1526 trope on the Sanctus, composite translation © 1941. Typical. You know what to do.
• Hymn 253, "In one true God we all believe," a 17th-century Slovak paraphrase of the creed from Tranoscius, composite translation © 1941. At least outside Slovak-American circles, this seems to be the least-used of several creed-hymns in TLH; which is not to say it wouldn't be a cultural loss to see it disappear. See my remarks on Hymn 82.
• Hymn 260, "O Lord, look down from heaven, behold," Luther's 1523 German paraphrase of Psalm 12, composite translation © 1941. Drat; but you know what to do.
• Hymn 264, "Preserve Thy Word, O Savior," abbreviated from Andreas Gryphius' 1676 German, translation © 1938 by William J. Schaefer. Again, it would be a pity not to be able to work with this hymn, but another German translation shouldn't be too hard to come by.
• Hymn 266, "O God, our Lord, Thy holy Word," cento of a 1527 German hymn, translation © 1938 adapted from Polack. Really! We've got to find a PD (public domain) translation of this!
• Hymn 267, "If God had not been on our side," Luther's 1524 paraphrase of Psalm 124, composite translation © 1941. Sheesh. You know what to do!³
• Hymn 275, "My soul doth magnify the Lord," cento of a 1535 German paraphrase of the Magnificat, translation © 1940 by J. Theodore Mueller - presumably the same J.T. Mueller famous for his one-volume "Cheater-Pieper" dogmatics, which has helped confuse generations of LCMS divinity students about several points of doctrine on which the three-volume Pieper tends to be more clear.⁴ Anyway, this may be another hymn that needs to be re-translated.
• Hymn 299, "Dear Father, who hast made us all," 1541 German by Albert Knapp, translation © 1939 by Czamanske. It's one of only a few baptism hymns in TLH, so we need this hymn!
• Hymn 313, "O Lord, we praise Thee," a 15th-century German communion hymn to which Luther added two more stanzas in 1524, composite translation © 1941. The importance of this hymn is beyond mind-blowing; one survey of LCMS congregations in the 1990s showed this to be the most well-known hymn in TLH. Luckily, that word "composite" means we can settle for an older translation.
• Hymn 315, "I come, O Savior, to Thy table," a 15-stanza cento(!) of F.C. Heyder's 1710 German communion hymn, composite translation © 1941. Whew! That's a mercy! You wouldn't want to have to re-translate all those stanzas(!!) to be able to make creative use of another of TLH's most well-known hymns, one many congregations have sung every Communion Sunday (or in alternation with Hymn 305, "Soul, adorn thyself with gladness") since Hector was a pup.
• Hymn 362, "My soul's best friend," a cento from W. C. Dessler's 1692 German, composite translation © 1941. Meh, I've never been turned on by this hymn, which strikes me as boring, prolix, and smacking suspiciously of pietism. If you want it, you know what to do.
• Hymn 383, "Seek where ye may," 1623 German by Georg Weissel, translation © 1938 by Arthur Voss. I thought the variant of the tune used in LW was much more exciting than the one here, also used in LSB; I could see myself working on a motet based on the LW version. But alas, I would have to seek (or make) another translation.
• Hymn 408, "Jesus Christ, my Pride and Glory," cento of Johann Olearius' 1671 German hymn, translation © 1939 by Paul E. Kretzmann, author of quite a few of those one-off hymns in SBH (see note above on Hymn 640). This, unfortunately, is a hymn I really care about. (Author shakes fist at CPH.)
• Hymn 470, "Rise again, ye lionhearted," cento of a 1712 German hymn, translation © 1940 by Martin Franzmann, who later got a lot of his original hymns into LW and LSB.⁵ I like this hymn. I also like Franzmann. The pity of it is, experience tells me writing a competing translation will probably be easier than getting permission to use this one.
• Hymn 477, "Lord Jesus, Thou the Church's Head," cento of a 1726 Mentzer hymn, translation © 1938 by Schaefer. It's probably an underrated hymn. It might be less so if more creative types had the freedom to mess around with it. Thanks again, CPH!
• Hymn 479, "Zion, rise, Zion rise," cento of a 1704 German hymn by J.E. Schmidt, translation © 1925 by Czamanske. Again, this is confusing, since the hymnal dates the translation 1938; if the copyright really originated in 1925, I wonder whether CPH really still has anything to defend.
• Hymn 498, "Rise, Thou Light of Gentile nations," 19th-century German by Hermann Fick, composite translation © 1941.
• Hymn 509, "There still is Room," anonymous and undated German, translation © 1938 by Czamanske. I'm pretty meh about this hymn, which has something vaguely altar-callish about it.
• Hymn 540, "With the Lord begin thy task," 1724 anonymous German, translation © 1937 by Polack. One of those hymns that frequently comes up at Matins services (especially in campus chapels that have them daily), it has a lot of potential for creative adaptation... but not in Polack's translation!
• Hymn 545, "The morning sun is brightly beaming," 1835 anonymous Finnish, translation © 1938 by Gustaf A. Aho. Maybe not as well-known as Hymn 540, its protected status is nevertheless a problem for the same reason.
• Hymn 560, "Gracious God, again is ended," 1711 German hymn by Caspar Neumann, translation ("recast") © 1938 by John T. Mueller. I'm confused now as to whether this is the same as the "J. Theodore Mueller" referenced in Hymn 275; in which case, I may have done J. Theodore an injustice regarding "Cheater-Pieper."
• Hymn 590, "In the midst of earthly life," 1524 German funeral hymn by Luther, composite translation © 1941. Good grief! Well, you know what to do, kiddies!
• Hymn 596, "This body in the grave we lay," mostly (stanzas 1-7) the 1538 German by Michael Weisse, plus an anonymous eighth stanza; translation © 1938 by Czamanske. The odd thing is, CPH does not specify "translation" in its claim of copyright protection for this hymn, though at least 7/8 of it (in the original German) dates back to Luther's lifetime. It's one of those gaffes that adds a thrill of uncertainty to any creative enterprise touching the hymns in TLH.
• Hymn 598, "Who knows when death may overtake me," an 11-stanza "abbreviated" form(!) of Aemilie Juliane's 1686 German hymn, composite translation © 1941. You know...
• Hymn 599, "My course is run," cento of a 1726 German hymn by Gryphius, translation © 1941 by August Zich. Oddly, the book dates his translation 1937.
• Hymn 603, "In the resurrection," 1660 anonymous (Czech? Slovak?), translation © 1939 by Bajus. Really quite an unusual hymn; I could see someone wanting to do an arrangement of it with, say, tambourines and finger-cymbals. But not with Bajus' translation! And where will they get another?
• Hymn 630, "Ye parents, hear what Jesus taught," cento of 1596 German by Ludwig Helmbold, translation © 1939 by Czamanske. If this hymn brings out the creative drive in somebody, I guess they just have to get a different translation.
• Hymn 655, "I pray Thee, dear Lord Jesus," 1699 single-stanza Danish hymn by Thomas Kingo, translation © 1939 by Norman A. Madson. It must rankle Madson's kin and descendants in the ELS to know their synod's great contribution to TLH is owned by the LCMS publishing house.
• Hymn 659, "Feed Thy children, God most holy," altered form of a 1656 German hymn by Johann Heermann, composite translation © 1941. It's a one-stanza table-prayer hymn that some congregations can probably sing by memory. I wonder how excited they would be to learn that, while "Happy Birthday" is no longer protected, they could still be fined for handing out photocopies of their favorite pot-luck ditty.

To conclude with a clarification, I do not advocate violating the intellectual property rights of CPH or any other copyright owner. But I do not applaud their continued defense of their rights to the contents of a book published before the U.S. entered World War II, two official LCMS hymnals ago - and particularly of translations of important, classic Lutheran hymns that, in many cases, seem to have been cobbled together from earlier translations, possibly for the very purpose of evading the complexities of copyrights and permissions. It's way past time for this material to be at the disposal of the authors and composers whose creative efforts are now carrying forward the cultural and spiritual program of Lutheran hymnody. And it would sure be nice if the church's own publishing arm acted more like it was in these creative artists' corner, or like it really had the enrichment of the church's musical heritage at heart.

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Footnotes
¹ Actually, it was reprinted in the 1990s Wisconsin Synod hymnal Christian Worship, but that doesn't really count; CW was nothing if not a crass repristination of TLH. And I say that with all due disgust, in spite of thinking very highly of TLH.
² The designation of "composite" seems to mean the hymnal editors patched together a Frankenstein's monster of different pre-existing translations, representing the best bits of each. Since the resulting composite translation was distinctive enough to get around any then-existing copyrights, CPH took the commercially shrewd step of slapping its own copyright on it.
³ You must have noticed by now, the really dangerous ones are the ones that name a particular translator. This may mean that guy gets credit for rescuing a previously unsung hymn from obscurity, at least in the English-speaking world. If no previous decent English translation can be found, this means starting from scratch with the original German. The word "composite," on the other hand, offers a little hope: it suggests, at least, that there were multiple published translations before TLH.
⁴ I had a prof at the seminary who thwarted "Cheater-Pieper" users by setting quiz questions exclusively taken from the most obscure footnotes in Pieper's corresponding volume.
⁵ One of the hymn texts, permission to use which I am struggling to extract from the publisher (in this case, CPH) before publishing my next volume of hymns, is by Franzmann. The other, before you ask, is "A stable lamp is lighted" by Richard Wilbur, owned by Houghton Mifflin Harcourt.