The Golden Grail - found! Gambler's Blues (aka St. James Infirmary), the first sheet music

 Ahhhh.

I had been looking for this sheet music for years. Dare I say, for over a decade?! It escaped me. It was as if it did not exist. I mean, I found evidence that it was locked in the archives of the New York State judicial library, as evidence in a 1930s lawsuit. But it was rare as the Dickens and I could never find the actual thing.

But eventually I did.

I found it on eBay. The starting price was ninety-nine cents (plus postage), and there were two weeks left in the bidding. "Oh dear," I thought, "this is such an important historical document, one that has eluded me for a decade, and I am sure many people will be bidding for this, waiting for the last possible moment before entering a bid. There is no chance that, with my meager resources, I shall be able to actually get my hands on this item." But, as you can see, I did win it.

For ninety-nine cents (plus postage).

What an odd thing!! This was something of considerable historical importance. And I was the only one to enter a bid. Nobody else in the world cared. It was my golden grail. Nobody else cared. There were no other bids. And so I now possess a great historical document at a cost of ninety-nine cents (plus postage).

I must be deluded. I had been pursuing this story, this history of "St. James Infirmary," for a very long time. One of the critical links in the saga of this song appeared for sale, and . . . well . . . it sold for ninety-nine cents.

I shall have to ponder this.

Maybe history depends upon who writes the story.

The year on this music sheet is 1925. It was published by Phil Baxter in Little Rock, Arkansas. My earlier research had informed me that "Harry D. Squires, Inc." was the original publisher of this song, and that Squires was the person who convinced Fess Williams to record it (the first recorded version). So it is likely that Baxter released this edition of the sheet music before finding a bona fide publisher. Also, I had noted that Baxter and Moore neglected to copyright the song (thereby leaving the way open for "Joe Primrose" to take ownership of it). But "International Copyright Secured" is printed on these pages. I had found no evidence of this when I contacted the U.S. copyright offices, so I am not sure what this means.

The 1925 sheet music with lyrics can be found here - the pages should expand when you click on them. I leave it to you to compare this music with the second oldest publication of this song in Carl Sandburg's "American Songbag," published in 1927. Whatever this comparison tells you, it will be clear that neither Phil Baxter nor Carl Moore nor Joe Primrose nor anybody else, wrote "St. James Infirmary."

Again, here is the sheet music for Baxter/Moore’s “Gambler’s Blues.”

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.