Showing posts with label Denton and Haskins. Show all posts
Showing posts with label Denton and Haskins. Show all posts

Wednesday, October 25, 2023

About a 1930 lawsuit - you cannot copyright a song title


Inside cover of Denton & Haskins 1930 "St. James Infirmary."
Item should enlarge if clicked on.
In this blog entry - and in more detail in I Went Down to St. James Infirmary - I write about a 1930 New York court case where Irving Mills' music company sued the music publisher Denton & Haskins.

Denton and Haskins (D&H) were selling a song, "St. James Infirmary," that Mills Music had been heavily promoting over the previous year. (These were the early days of song recording when sheet music outsold records.) While the song published by D&H had the SJI title, the lyrics were much different. D&H hired Claude Austin to write new music and William J. McKenna to write a new lyric. (D&H also included current lyrics inside the front cover; see first image.) D&H were really pushing this issue. The cover title was St. James Infirmary or The Gambler's Blues also known as St. Joe's Infirmary. These were different titles for more or less the same song. So, they were confident in their assertion that they could market a song with a title that was already in use.


Cover Denton&Haskins SJI
Mills Music argued that Denton & Haskins was taking unfair advantage of their advertising and promotion, and thereby profiting from Mills' investment in the song. 

When I looked into this, the chief librarian at the New York Supreme Court kindly sent about 600 pages of testimony and legal argument. On trial and appeal Mills won the case, but when it was referred to the Appeals Court, he lost, and had to pay costs.

I had interpreted the judgements as supportive of Mills' claim, and only when I received an e-mail from a New York lawyer, Bruce R. Kraus, correcting my interpretation, did I realize that I had read the"dissenting opinion" as the court ruling.

Cover Mills Music SJI

Irving Mills did not appear in court, but submitted a signed affidavit. Among other admissions, he agreed that the song did not originate with him, or with Mills Music, or with "Joe Primrose." But since this was not a federal court, those admissions meant little as far as copyright and song ownership. As Kraus pointed out, this lawsuit served warning that Irving Mills and Mills Music were not to be fooled with; to challenge them could become an expensive proposition - Mills Music had deep pockets and were unafraid of confrontation.

Of course, this New York case was not about copyright, which is a federal and not a state matter. But, then again ... in the arguments for Mills Music, Irving was saying that I own this title, I have expended considerable effort, energy, and money in publicizing the song. It is unfair that another company gets to profit from my efforts.

Maybe it was due to this warning - the warning that Mills Music would aggressively challenge legal submissions - that the copyright for St. James Infirmary was never challenged in federal court, and Mills continued to profit from the song for many years.

As Bruce Kraus succinctly explained, "you cannot copyright a title." Copyright law considers titles or phrases to be too short; they contain insufficient creative effort to warrant copyright.

For instance, the Beatles famously recorded "The End" on Abbey Road in 1969. Two years earlier The Doors had recorded a song called "The End" on their 1967 eponymous debut album. So did Pearl Jam (2009), Kings of Leon (2010), and quite a few others.

How many songs have been titled "I Love You"?

From Bob Dylan's 2015 MusiCares Person of the Year speech:
“I learned lyrics and how to write them from listening to folk songs. And I played them, and I met other people that played them back when nobody was doing it. Sang nothing but these folk songs, and they gave me the code for everything that’s fair game, that everything belongs to everyone.” (italics extra)

"Everything belongs to everyone," Dylan said. Utopian. Undeniably true. And that's St. James Infirmary.

Sunday, December 27, 2009

The Denton and Haskins influence in a new variation of SJI

I was looking through the Mudcat Cafe site the other day. Mudcat is devoted to the exploration and preservation of traditional songs, and is a valuable resource. One correspondent, Dorothy, recently wrote, "My brother used to sing me a song. The lyrics seem similar to ones I have read in your listings. I used to love him singing it . . . I am still confused as to where my brother would have heard it. I miss him so much, he died of a brain hemorrhage aged 42. This was 31 years ago. I still miss him so much, but my memory of his singing is so vivid I can still hear him." Dorothy included the lyrics to the song, which can be found here.

Those lyrics, Dorothy, are really interesting. It would be good to know how long ago your brother started singing them. They come from all sorts of places - from recorded songs, from the Sandburg versions . . . and even, judging by the second-to-last verse, sort of made up but similar to earlier verses.

The first two verses, though, first appeared in 1930, when the company Denton and Haskins published a version of "St. James Infirmary" to rival the stranglehold Mills Publishing had over the song. On the inside front cover they included traditional versions of the song that had been collected by the poet (and folk song archivist) Carl Sandburg. But what they were selling - or, once Mills launched a cease and desist lawsuit, trying to sell - was a new version of the song, arranged by Claude Austin with additional lyrics by William J. McKenna.

I have never encountered a recording of this version of the song. In fact it died pretty quickly once the legal wrangling ended. Still, there was a brief time when this sheet music was circulating, probably mostly around New York City. Obviously parts of it found their way into your brother's song, which is an example of the many guises "St. James Infirmary" has assumed in its adventurous life.

Lyrics to St. James Infirmary - Denton and Haskins edition

In reference to the posting above, here are the lyrics from the version of "St. James Infirmary" as published (and copyrighted) by the music publisher Denton and Haskins in 1930. (You might find it interesting to compare them with Dorothy's version, found here.)

I'm a gambler, never did refuse a bet
Played for millions in my time
But I've had the biggest loss that I ever met
Tho' I didn't lose a dime
Lady Luck threw me as a pal
When she took my lovin' gal

I went to Saint James Infirmary
My baby there she lay
On a long cold marble table
I looked and turned away

What is my baby's chances?
I asked old Doctor Tarp
He said "By six this evening,
She'll be playing a golden harp"

Back to St. James Infirmary
I saw my baby's face
So white, so drawn and faded
Of her good looks not a trace

I started in a prayin'
Right there upon my knees
"Good-Bye, my lovin' baby"
My heart began to freeze.
Inquiries into the early years of SJI