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.

Irving Mills' birth name - from fallacy to fact on the Internet

 

Irving Mills

The Wikipedia post on Irving Mills opens:

"Irving Harold Mills (born Isadore Minsky; January 16, 1894 - April 21, 1985) ..."

This comes from my research into Irving Mills, during which I scoured census records and ships logs (they emigrated from Odessa). The family name in the United States was Minsky; they  Americanized their names. The family can be found in the 1900 U.S. census living at 176 Essex Street in Manhattan. Many of their neighbours were fellow Russians.

BUT - regarding the name Isadore I wrote, based on that 1900 census:
"Hyman (Irving's father) was thirty-four years old that June and headed a household consisting of his wife Sophia (thirty years old), and sons Jacob (eight years old) and another son of six whose name is barely legible but could have been Isidor (italics mine)."

I made a mistake writing this. First, neither Isidor nor Isadore are Russian names (although rare in the Jewish diaspora, the names are usually found in England and France). Second, as you can see from the census record (it should expand if you click on it), the writing is indistinct. All of the other family members can be clearly read (with a bit of concentration) but Irving's entry is, well, illegible.

1900 U.S. census - the Minskys are listed near
the bottom at 08 (possibly meant to be 108)

I had stared at this entry for long periods. In the end I thought "the name is barely legible but could be Isidor."

Now it has become "fact" on the internet (including Wikipedia) that Irving was born Isidor (or Isadore).

From supposition to fact.

It is certainly untrue. I should have simply written that the name is indecipherable.

Irving Mills was the pseudonymous "Joe Primrose," who was given credit for writing "St. James Infirmary," the only song that has his name. Among many other clients (including Milton Berle), Mills managed the careers of Duke Ellington and Cab Calloway. He started a record company. With his brother Jack he ran one of the most successful music publishing houses of the era.

On the 1896 ship's log which brought the family to the U.S. from Odessa, when Irving was two, their names were recorded as Chaim (a hatmaker), Schifre, Jacob, and Isaac. That should have been enough.

Ps Terry Teachout in his biography of Duke Ellington, Duke: The Life of Duke Ellington, wrote "No biography of (Irving) Mills has been written. The best short treatment of his life and work is in Harwood."

Bob Dylan, Jimmie Rodgers, Duke Ellington, etc., and the story of St. James Infirmary

Some of the characters who inhabit
I Went Down to St. James Infirmary

The history of St. James Infirmary is fascinating and complicated. Some years ago I put together an image (based on a painting by Albert Gleizes) showing a few of the people who have been central to the song, its history and its evolution. Some of the faces will be familiar to you. In no particular order the ones portrayed here are Phil Baxter, Louis Armstrong, Blind Willie McTell, Don Redman, Bessie Smith, Bob Dylan, Carl 'The Squeakin' Deacon' Moore, Daniel Decatur Emmett, Mamie Smith, Emmett Miller, Irving Mills, Duke Ellington, Porter Grainger, Jimmie 'Blue Yodeler' Rodgers. The picture also references the road, the city, sex, fate, magic, OKeh records (who introduced the notion of blues/race music to the world), mountains of mystery, trial, possibility...and music.

Here are excerpts from reviews of I Went Down to St. James Infirmary:

"A sparkling book."

"A goldmine of information."

"This is not the first book devoted to one song, but it is the first to cross so many stylistic fences in its attempt to trace the origins of a tune."

"The definitive statement on the subject - and a very entertaining read."

"It will retain a favourite place in my library."

"The book: wow. I'd picked up bits of the story from the blog, but the book was an absolute feast. These are wonderful stories and you tell them so beautifully."

"This work is unique, so if you don't have it, get it."

"I am thrilled beyond belief at your great story. You found things out about (my husband) Carl Moore that I didn't even know."

"The best treatment of Irving Mills life and work is in this book."

The book can, of course, be purchased here: I Went Down to St. James Infirmary

Irving Mills' Relentless Drive to Promote the Best Jazz Music

 

Irving Mills (c. 1982)
by Bruce Fessier

I have exchanged emails with Irving Mills' granddaughter, Beverly Mills Keys, for over a decade. Ms. Keys recently sent me a link to a remarkable article about Irving Mills by writer Tracy Conrad. 

 

Irving Mills, as you know, was the pseudonymous Joe Primrose, supposed composer of "St. James Infirmary." He was also a tireless promoter of musicians, a successful song publisher, and so on. Mills is part of a fascinating tale, recounted in my book  I Went Down to St. James Infirmary. 

 

Anecdotes about Mills are not easy to come by. He kept much of his life private, and so it is a pleasure to read about him. He was a significant force in the shaping of American music. Ms. Conrad has kindly permitted me to reprint her article on this blog:

* * *

Newspaperman Bruce Fessier chronicled an amazing story in 1982 as told to him by his friend Irving Mills. By then, Mills had retired to a big house in the south of Palm Springs and would regale Fessier with stories of the golden age of jazz. After all, Mills had been there for some of the most important moments, or really, had worked tirelessly to make many of those moments happen. 

For instance, Mills wrote the lyrics to “It Don’t Mean a Thing” (If It Ain’t Got That Swing) in 1929, but as Fessier recorded, Mills said it happened by accident. “‘I had an engagement in Chicago for a café roadhouse that opened in the summer, and prior to the opening, he (Ellington) played for six weeks in theaters. After six weeks, doing four shows a day, five on Sundays, they became very stagey. I noticed the dancers weren’t dancing right. It wasn’t Duke Ellington’s dance music.’ Shocked after his first viewing, Mills said he ‘ran back to the dressing room’ and asked Ellington why he had changed his music. Ellington said the people liked it, but Mills told him to stop. "I said, 'It don’t mean a thing if it ain’t got that swing,'" he recalled. And he said, “You know, Irving, you’ve got a lyric there. Let’s write it up." 

And write it up they sure did. Mills added some more lines, and Ellington’s trumpet player Cootie Williams came in with the music, "Do-whacka-do-whacka-do-whacka-do."
 

Born at the end of the 19th century in Ukraine and having immigrated to the United States as a child, Mills had a spectacular, if unlikely, career. His father was a milliner who died in 1905 when Mills was just 11 years old, forcing him and his brother Jack to work at exceedingly odd jobs including busboy, wallpaper salesman, telephone operator, and “song demonstrator” to support the family. 

By 1919, Irving and Jack Mills were in business together publishing music. Soon, they were the kings of Tin Pan Alley, cultivating songwriters and then hawking those tunes to radio stations. Both Irving and Jack discovered a number of first-rate songwriters like Sammy Fain, Hoagy Carmichael, Jimmy McHugh and Dorothy Fields. (Carmichael and McHugh would also retire to the desert.)

But Mills also had a keen eye for performers, and started, or boosted, the careers of Cab Calloway, Benny Goodman, Hoagy Carmichael, Lena Horne and the Dorsey Brothers. But most importantly, one evening in New York around 1925, Mills went to the Club Kentucky on West 49th between 7th and Broadway. Playing there was a small band of six musicians in from Washington, D.C., led by Duke Ellington. According to lore, Mills promptly signed Ellington, launching his career by managing to get the band booked uptown at the Cotton Club, and broadcasting those shows on radio.

Fessier noted that Mills did more than almost anybody to promote black musicians and singers. He was one of the first to record black and white musicians together, using twelve white musicians and the Duke Ellington Orchestra for a recording of “St. Louis Blues,” and was powerful enough to force the music label to release the record over their objections. He booked previously all-white auditoriums for black performers. Fessier recounts that one of the finest things he thinks Mills ever did was to hire a private Pullman car, with proper dining room and sleeping quarters, to take the Ellington band through southern states in order to spare them from having to endure the harsh segregation of restaurants and hotels. (Many Ellington compositions are known for conjuring train imagery.)

As was the practice at the time, many of Ellington’s most famous tunes were also credited to Mills, who was an able lyricist, including “Mood Indigo,” “(In My) Solitude” and “Sophisticated Lady.”

Mills only produced a single movie, “Stormy Weather” in 1943 for 20th Century Fox starring an all-black cast including Lena Horne, Bill “Bojangles” Robinson, the Nicholas Brothers, Cab Calloway and Fats Waller.

In addition to relentless promotion of the best talent, black or white, Mills was an innovator. He printed “small orchestrations” transcribed off a record, so that non-professional musicians could see how great improvised solos were constructed. And he conceived of the concept of a band within a band, a rhythm section who could go into the studio without the full orchestra and lay down cutting-edge sounds.

Mills was constantly making records, arranging tunes, selling and merging companies, until he was the head of what would become Columbia Records. At the time of his last sale, the total catalog of songs was estimated to number in excess of 25,000, of which, 1,500 were still producing royalties. In 1964, Mills was enjoying royalties in excess of one million dollars per year, equivalent to about eleven million today, and the company encompassed 20 music publishing subsidiaries as well as outlets in Britain, Brazil, Canada, France, then West Germany, Mexico, the Netherlands, and Spain.

After that spectacular career, Mills retired to Palm Springs, but was still busy creating. Fessier recalls, “I was at Irving's house one night in December of 1981 when Hoagy Carmichael called. Irving had published Hoagy's ‘Stardust’ in 1929 after challenging his stable of lyricists to come up with the right words for Hoagy's beautiful melody. In the late 1970s, Irving said he couldn't find the right piano jazz for the kind of cocktail parties he liked to throw, so he produced a series of 15 albums featuring the music of some of his favorite jazz and pop composers. He called them ‘Musical Cocktail Records’ (a phrase he trademarked) featuring great pianists playing the music of Hoagy, Irving Berlin, George Gershwin, Duke Ellington and Jimmy Van Heusen.”

Fessier continues, “Irving went into business mode when Hoagy called, telling him he wanted to promote the record he had made with him, featuring Paul Smith. Irving didn't get the response he wanted and I asked him what Hoagy said. He said Hoagy's reaction was, ‘Irving, are you still working?’” Indeed, he was. Nice work if you can get it.

Tracy Conrad is president of the Palm Springs Historical Society. The Thanks for the Memories column appears Sundays in The Desert Sun. Write to her at pshstracy@gmail.com.

Love & Theft: Dylan, Harrison, Cave, Calloway, The Doors, Tchaikovsky, etc.

Musicians rely on each other for inspiration
(image © RwHarwood -- with thanks to
Albert Gliezes for his inspiration.)

On May 12, 2020 NPR published an article by Tom Moon titled, "Trickster Treat: Bob Dylan's New Song Sounds Awfully Old ... And Familiar." The article describes the musical similarities between Dylan's 2020 song, "False Prophet," on the CD Rough and Rowdy Ways, and Billy "The Kid" Emerson's 1954 song, "If Lovin' Is Believing," illustrated with sound files and an analysis of how the musical structures between the songs are both alike and different.

Moon concludes:
"These specific instances might be defined as thievery only by the narrowest definition. In a fundamental sense, popular music is an ongoing conversation between the creators of the present and those who came before -- a circuit of inspiration to which successive artists contribute some kernel of truth, some new way of looking at an enduring element of human nature."

Nick Cave in his April 20, 2020 edition of The Red Hand Files, receiving a question about "originality in music," responded (in part):

"The great beauty of contemporary music, and what gives it its edge and vitality, is its devil-may-care attitude toward appropriation -- everybody is grabbing stuff from everybody else, all the time. It's a feeding frenzy of borrowed ideas that goes toward the advancement of rock music -- the great artistic experiment of our era.
"Plagiarism is an ugly word for what, in rock and roll, is a natural and necessary - even admirable - tendency, and that is to steal ... to advance an idea is to steal something from someone and make it so cool and covetable that someone then steals it from you. In this way, modern music progresses, collecting ideas, and mutating and transforming as it goes.
"... We musicians all stand on the shoulders of each other, our pirate pockets rattling with booty, our heads exploding with repurposed ideas."

Cave asked his collaborator, composer Warren Ellis, how much he has stolen: "Everything, absolutely everything."

From a site called "hitchr" here are a couple of samples:
Abba's "Waterloo" next to The Foundations "Build Me Up Buttercup."
Sam Smith's "Stay With Me" next to Tom Petty's "Won't Back Down."

Ray Manzarek explains how his band, The Doors, adapted "Ghost Riders In The Sky" to create "Riders On The Storm":

There are thousands of examples: Radiohead "Karma Police" vs The Beatles "Sexie Sadie." One Direction "One Thing" vs The Clash "Should I Stay Or Should I Go." R.E.M. "It's The End Of The World As We Know It" vs Bob Dylan "Subterranean Homesick Blues." Bob Dylan "Hard Times In New York Town" vs Traditional "Penny's Farm."

The Carter Family are famous for having copyrighted songs from the musical traditions of Appalachia after minimally modifying them, sometimes only changing a few words.

In 1931 Cab Calloway had a major hit with "Minnie the Moocher," the song by which he is best remembered today. Cab Calloway, Irving Mills, and Clarence Gaskill cobbled the song together with bailing twine. Its orchestration and melody were from Cab's earlier recording of "St. James Infirmary;" its lyrical content from a turn-of-the-century song about a chimney-sweep and his drug-induced dreams, "Willie the Weeper." ("Minnie the Moocher" told the story of a woman and her drug-induced dreams.)

Famously, George Harrison was found guilty of appropriating The Chiffons "He's So Fine" when writing "My Sweet Lord." Copyright lawyer Charles Cronin has a remarkable website detailing song copyright arguments. A small part of the final decision said:

"What happened? I conclude that the composer in seeking musical materials to clothe his thoughts, was working with various possibilities. As he tried this possibility and that, there came to the surface of his mind a particular combination that pleased him ... in other words, that this combination of sounds would work. Why? Because his subconscious knew it had already worked in a song and his conscious mind did not remember."

Nevertheless, in a judgement that remains controversial, Harrison was found guilty of infringing copyright law. He probably was not helped by his former band mate, John Lennon, saying:

"He must have known, you know. He's smarter than that ... George could have changed a few bars in that song and nobody could have even touched him ..."

"Could have changed a few bars ..."

It's not just popular music. Tchaikovsky based the opening theme of his piano concerto in B-flat major on the songs of blind beggars he'd heard in the Russian village of Kalemko. Vaughan Williams and Antonin Dvorak and Bela Bartok scoured the countryside as song collectors, incorporating borrowed melodies into their own compositions. An Alexander Borodin melody from his opera "Prince Igor" became the Tin Pan Alley tune "Stranger in Paradise."

In a 1916 edition of Green Book magazine (1909-1921) songwriter Irving Berlin wrote: "There has been a standing offer in Vienna, holding a large prize, to anyone who can write eight bars of original music. The offer has been up for over twenty-five years. Thousands of compositions have been submitted, but all of them have been traced back to some other melody."

Berlin continued, "Our work is to connect the old (musical) phrases in a new way ..."

Anything we create is built upon something previous. The initial aim of copyright law was to give people an incentive to create, and then to return that creation to the common ground for others to build upon. Everything is based on something that went before, and so everything belongs to our commonality. Creative people will create. That's the nature of things. Copyright is useful in providing them with income. Extend copyright restrictions too long, though, and it can stultify the creative process. (Present copyright laws are responses to corporate, not individual or public, needs.)

Which brings us back to the beginning of this entry. That someone found a link between a song Bob Dylan recorded and another song ... well, that's music. That's love and theft.

Phil Baxter, 1925 co-composer of Gambler's Blues (aka St. James Infirmary)

Phil Baxter was a pianist and band leader in the 1920s and 1930s. He was a prolific song-writer. Among his better known compositions are the rather risque "Ding Dong Daddy from Dumas" (recorded by a host of musicians from Phil Harris to Louis Armstrong), "Piccolo Pete" and the follow-up, "Harmonica Harry" (both were major novelty hits for Ted Weems and his orchestra), as well as "A Faded Summer Love" (which was a hit for Bing Crosby in 1931).

Phil Baxter

Baxter and Carl Moore published "Gambler's Blues" in 1925. Four years earlier Baxter and Moore toured together as a duo.They would ride the train from town to town and perform skits and music, with Moore on drums, Baxter at the piano. Eventually Baxter settled in Kansas City where, leading a band at the El Torreon ballroom, he displaced the Coon-Sanders Nighthawks as Kansas City's favourite dance orchestra. Moore created his own band; with a mixture of sophisticated dance arrangements and down-home humour, he was a popular entertainer.

Baxter was unable to perform after 1933 because of arthritis in his hands. On the verge of his leaving for Texas, the Kansas City Journal-Post ran a long article about Baxter which included this comment: "Baxter has had some litigation over the authorship of one song, which has been in circulation as 'St. James Infirmary,' but which he said he composed long ago and called 'Gambler's Blues.' He said he published it privately in Texas years ago, and that a New York publisher picked it up." That New York publisher was undoubtedly Gotham Music, whose president was Irving Mills (aka Joe Primrose).

(In 1927, two years after Moore/Baxter published "Gambler's Blues," Carl Sandburg published a book of "traditional" American songs containing a very similar piece, "Those Gambler's Blues.")

I Went Down to St. James Infirmary includes a biography of Baxter. Information about him is not easy to find. Recordings of his can be discovered on CD and on streaming services, in compilations with titles like volume 2 of Jazz the World Forgot, or Texas and Tennessee Territory Bands. If anyone has information about Phil I would love to hear from you. Baxter's friend, Cliff Halliburton, wrote a biography, but I have been unable to find it and suspect it was never published.

Phil Baxter's band with his 1929 composition "I Ain't Got No Gal Now."

Original recording of Phil Baxter's 1928 "I'm a Ding Dong Daddy from Dumas."

Baxter's published version has seven verses, so this is a bit abbreviated.

Original recording of Phil Baxter's and Carl Moore's "Gambler's Blues"
(aka "St James Infirmary") 1927 - recorded one year before Louis Armstrong's
"St. James Infirmary" and two years after Moore/Baxter published it.


Louis Armstrong's original 1928 "St. James Infirmary." He recorded the song at
least twice more.

Irving Mills sings (with Jack Pettis And His Pets) 1928

Irving Mills

Correspondent Beverly Mills Keys sent a link to a song in which Irving Mills is the vocalist. Historically, of course, Mills was not known as a singer - although he did contribute to a few recordings, including some by Duke Ellington. Mills is better remembered as an entrepreneur who managed many artists in the 1920s and 1930s, including Duke Ellington and Cab Calloway. In the realm of the song St. James Infirmary, of course, he was - as Joe Primrose - an alleged composer.

Therein lies another story.

Irving Mills is a central character in my tale of St. James Infirmary. So it is good to actually hear his voice.

Jack Pettis

Below is the YouTube video Beverly Mills Keys sent to me, a 1928 recording by Jack Pettis and His Pets. For this song Irving Mills assumed the pseudonym of Erwin McGee. In other records he sang as Sonny Smith, Goody Goodwin, and so on. The pseudonyms were sometimes necessary, as he often recorded with predominantly black musicians; racially mixed performing groups could be, uhm, difficult in those times. (Mills, to his credit, was one of the first to record racially integrated bands.)

Pettis, though, was Caucasian, as were the members of his bands; an innovative saxophonist, he recorded occasionally with Mills' "Hotsy Totsy Gang" alongside such youngsters as Tommy Dorsey, Benny Goodman, Jack Teagarden, Gene Krupa ...  all soon to become among the biggest names in jazz/pop music. Mills had an uncanny way of recognizing talent.

You can read more about Jack Pettis here.

It is likely that Mills was managing Pettis when this record was made. "Baby" was written by two of Mills' stable of songwriters, early in their careers, Dorothy Fields and Jimmy McHugh. Both were eventually inducted into the songwriters hall of fame.

Mills' vocal comes in at about 58 seconds.

SPOTIFY playlist for I Went Down to St. James Infirmary

Image by author, using sheet music for St. James Infirmary as background

All songs, all things, are connected.

While investigating the history of "St. James Infirmary," many other songs came into view.  Because of this I created a Spotify playlist of some of the songs mentioned in my book, I Went Down to St. James Infirmary. I couldn't find everything, though. Neither Daisey Tapley nor Florence Cole-Talbert are in the list. Aside from two or three women who were part of choirs, these were the first two black women to appear in recordings (1910 and 1919). I was able to include the first recorded solo black man (also, probably, the first solo male recording artist) - George W. Johnson with "The Laughing Coon" (c. 1894). Unfortunately, his first tune, "The Whistling Coon" (1891) is not on Spotify.

Neither are any of the songs by Carl Moore, aka "The Squeakin' Deacon." Moore was the first person, in 1924, to claim co-writing credit for SJI. From Arkansas, he adopted the persona of a hillbilly hick while fronting a smooth, swinging jazz orchestra. He recorded four catchy songs, but none of them migrated beyond their original 78 rpm discs. The only place you will find them today is on this site - enter "Carl Moore mp3" into the search box.

So far I have included 55 songs on the SJI playlist. You can hear Irving Mills introducing Duke Ellington at the Cotton Club on "Cotton Club Stomp." The Hokum Boys with their lost versions of "Gambler's Blues/St. James Infirmary." Gene Austin and "My Blue Heaven" (the best-selling song of all time ... until Bing Crosby's "White Christmas") - as well as his take on SJI. Bessie Smith. Blind Willie McTell's "Dyin' Crapshooter's Blues." Bob Dylan's "Blind Willie McTell." Cab Calloway. Alphonso Trent's 1930 SJI tantrum. Sophie Tucker. Hank Williams. Ward-Bergeman's 2011 gypsy version of SJI. Jimmie Rodgers. Victoria Spivey's 1926 "Black Snake Blues."

I shall add more from the book's song index as time goes on.

If you have a Spotify account, look for "I Went Down to St. James Infirmary" in the playlists, and enjoy.

The Original Sheet Music for SJI???

This, to the left, is the generic cover of the 1929 sheet music for "St. James Infirmary." The cover was designed so that a performer's image could be inserted without breaking the flow, as in the next picture. In those days images had to be set physically - that is, with an editor's hands placing the components in place. And so it was important for the Mills organization - and everybody else - to create flexible background images.

This is the first music score ever released for "St. James Infirmary." In the same year Mills Music (aka Gotham Music Service) also released an orchestral arrangement for SJI (which you can find elsewhere on this blog - search "sheet music"). The Mills music machine was fully engaged. The song had been subsumed.

Ahhh. But while it's the first music score for "St. James Infirmary," the sheet music for "Gambler's Blues," an earlier title for the song, had been printed four years earlier. The composer credits were to, not Joe Primrose, but Phil Baxter and Carl Moore. I wrote a bit about it here: The Golden Grail - you'll find more in the book.

"St. James Infirmary" aka "Gambler's Blues" had been around for many years before being taken into a recording studio. There were a ton of variations. There were many verses. The song, chameleon-like, changed its colour for the environment it stumbled into. The sheet music below, the first of its kind, gives us a taste of the song. But the song was more than this. It assumed many shapes; there were many versions.

This was just one of them.

Copyright entries for SJI, etc.

I have been searching Library of Congress copyright records for an article I am writing about the original Carter Family. I took some detours into "St. James Infirmary" territory; here are actual song copyright entries for some of these songs.

The full music sheets are

elsewhere on this blog

Gambler's blues ; w C. Moore, m P.

Baxter, of U. S. © Jan. 15, 1925

2 c. Jan. 15 ; E 605070 ; Phil Baxter

and Carl Moore, Little Rock, Ark.
1159

The first version of SJI to enter the copyright books was "Gambler's Blues," in 1925. While credited to Carl Moore and Phil Baxter, this (under the title "Those Gambler's Blues") was collected as a traditional song by the poet Carl Sandburg, in his 1927 book The American Songbag. Hmmmm.

Phil Baxter and Carl Moore

St. James' infirmary ; words and musicby Joe Primrose. © Mar. 4, 1929 ; 2 c. Mar. 26; E pub. 4595; Gotham

music service, inc., New York. 6527

This copyright, to the fictional Joe Primrose, was registered in March, 1929.

The recording, by Louis Armstrong & His Savoy Ballroom Five, was recorded in December, 1928 - three months earlier than the copyright. Something was afoot.

Irving Mills aka Joe Primrose

Porter Grainger

Dyin' crap shooter's blues ; words and

melody by P. Grainger. © 1 c. July

27, 1927; E 672418; Porter Grainger,
New York. 13674

"Dyin' Crap Shooter's Blues" was recorded three times in 1927, and then abruptly forgotten ... until resurrected by Blind Willie McTell in the 1940s. McTell was very convincing when describing how he wrote this song - but, obviously, he didn't. Bob Dylan's lyric for his song, "Blind Willie McTell" - "I'm standing in the doorway of the St. James Hotel" - was partly responsible for the writing of this book, I Went Down to St. James Infirmary.

Sheet music for second trumpet

A reader let me know that, in posting the 1929 orchestral score for St. James Infirmary, I had neglected to include the part for second trumpet.

This score, probably the first published orchestration, included parts for piano, alto sax, bass, trumpet, drums, violin. trombone, banjo. You can find the other sheets scattered through this blog (search "sheet music").

Selling for 50 cents, the score was arranged by famed banjoist Fred Van Eps, and published by Gotham Music Service, an arm of Mills Music, Inc. Mills Music was co-owned by Jack and Irving Mills. Irving Mills was Joe Primrose, who didn't write the song.

Clicking on the image should enlarge it.

Yet another article about copyright

How long can you own a song?
image © Robert W Harwood  ; )

Writing about a song like "St. James Infirmary" inevitably leads one to consider the nature of copyright, including how copyright law relates to societal well-being. This is because SJI never had an original composer, and yet was saddled by copyright restrictions for decades. Those with a financial interest in copyright generally argue that its protection should be extended in order to protect the creative community. The artist is an original talent, this argument often goes, who should be rewarded; that will stimulate others to contribute their original creations.

But there are no original creations.

In January 2016 the "Association of Research Libraries" published a document illustrating where many creative ideas originated. Twain, Shakespeare, Milton, Tolkein, Bowie, Bach, Beethoven, Dylan, Lennon & McCartney, JayZ, Michelangelo, Manet, Picasso are among those cited. (Their 15 page pdf, a very engaging read, can be downloaded here: Nothing-New-Under-the-Sun.)

"... authors do not create in a vacuum" the document asserts. "The raw material for their creativity is existing works. Artists borrow themes, styles, structures, tropes, and phrases from works that inspire them. And if copyright overprotects existing works—if it restricts authors’ ability to build on the creative output of authors who came before them—it will be more difficult for authors to create."

Overprotection by copyright inhibits creative growth; it weakens our society.

In 1988 the U.S. House of Representatives published the following:
"Under the U.S. constitution, the primary objective of copyright law is not to reward the author, but rather to secure for the public the benefits derived from the author's labors. By giving authors an incentive to create, the public benefits in two ways: when the original expression is created and ... when the limited term ... expires and the creation is added to the public domain."

Internationally, the original intent of copyright law was to enrich the public - and so limits were placed on the period in which a creation was protected.

"St. James Infirmary" was removed from the public domain in 1929.Were it not for the fact that it so obviously is not an original composition, it would still be under copyright until 2024. If Irving Mills had been able to copyright the song under today's laws, the date it returns to the public domain would be 2055 - seventy years after his death, 127 years after its initial copyright. This is much too long.

(Mickey Mouse was copyrighted one year before "St. James Infirmary." You can read about that here: How-Mickey-Mouse-Evades-the-Public-Domain.)

Hinky Dinky Parlay Voo?

Sheet music cover for a 1924 Irving Mills song

From Porter Grainger's World War One song, discussed in the previous post, we move to another song rooted in the Great War.

 "Hinky Dinky Parlay Voo" (also known as "Whatever Happened to the Hinky Dinky Parlay Voo?") was published by Jack Mills Music in 1924, six years after the end of the "Great War." It is based on a very popular WWI song, "Mademoiselles from Armentieres" that was sung by British soldiers as they marched towards battle. "Mademoiselles" was itself based on a song popular with troops during the Boer War in the 1880s. These songs were in the public domain.

While "Mademoiselles from Armentieres" had its popularizers, the marching song was far too blue for public performance back home. The troops would improvise verses while on the march; sex and the dark humor of war dominated the lyrics.

A typical, mild version of the lyric went like this:

Mademoiselle from Armentieres, parlez vous
Mademoiselle from Armentieres, parlez vous
Mademoiselle from Armentieres
She hasn't been kissed in forty years
Hinky dinky parlez vous

For the 1924 release, Irving Mills got together with Al Dubin (posthumously inducted into the Songwriter's Hall of Fame in 1970), Jimmie McHugh (also inducted into the Hall of Fame in 1970, a year after he died), and Irwin Dash (not much is known about Dash, but under the name Fred Heatherton he later wrote "I've Got a Lovely Bunch of Coconuts"). The sheet music cover boasted "With twenty new choruses!" From reading the lyric, one gets the impression that many ex-soldiers actually missed the war (or maybe the writers were being sarcastic?):

What has become of the Hinky Dinky Parlay Voo
What has become of all the happy times you knew
I'll bet there are lots of married men
Who wish they were back in the army again
Hinky Dinky Parlay Voo

The lyrics - devised for a popular audience - could be fodder for researchers into social attitudes of the time. For instance, both Uncle Tom and the devout and devoted Eliza (or Liza) were the central black characters in Harriet Beecher Stowe's Uncle Tom's Cabin:

What has become of Uncle Tom and Liza too
Up in his cabin on the hill
I hear his daughter is running a still

"Hinky Dinky Parlay Voo" opens with the verse:

Do you ever think of the time
When all the boys went 'cross the sea
To the land of Wee Wee Wee,
Where they strolled with sweet Marie,
Then the boys came back with a song 'bout
"Hinky Dinky Parlay Voo"
If you don't recall the song at all
I'll sing it over for you (shout) Say!

I wonder how well this sheet music sold? You can read the "twenty new choruses" here (clicking should enlarge):

Thoughts while reading Teachout's new biography of Duke Ellington

At the recommendation of a friend I recently purchased a new biography of Duke Ellington. Written by Terry Teachout, the book was released a couple of months ago. I was surprised to find, while perusing the "Select Bibliography," my own book, I Went Down to St. James Infirmary, listed. In all humility I have to mention that this was one of close to two hundred books that Teachout listed. But he did write this: "No biography of (Irving) Mills has been written. The best short treatment of his life and work is in Harwood (I Went Down to St. James Infirmary)." Irving Mills, of course, was central to the early career of Duke Ellington, as he was for Cab Calloway and other black musicians of the era.

It is a shame that there is no detailed biography of Mills. Information about him comes in dribs and drabs; what is unearthed often requires considerable effort. And, of course, the longer we wait, the more difficult it will be to write accurately or honestly about the man. A surprising amount of what we do find takes the form of critical opinion, rather than biographical fact, and that opinion is often scathing.

Let me try to explain. Irving Mills was intimately involved in the popularization of what the world thinks of as "American music" - music that arose out of the black culture of the 1920s and 1930s (as well as popular standards from the pens of white tunesmiths). He was foremost a businessman, though, and one who saw opportunity where others - because of the intense prejudices of the time - saw nothing. With the black artists he represented, Mills would take up to 50% of their earnings, rather than the 10% or 15% common between managers and white artists. But in return Mills worked hard. He made Ellington (for instance) into a star, and that could never have happened without a white manager; it might be surprising that it could have happened at all. In other words, Mills charged a lot for his services, but he did not take the money and run, and every indication suggests that he treated his clients with respect. Much of the criticism leveled at Mills is based upon contemporary notions of fairness and racial equality. From the perspective of nearly a century ago, things take on a different sheen.

If you're interested in Duke Ellington, this is a good book to read. Teachout takes an even-handed approach with Mills, and that is refreshing.

A side-light here: none of the three Ellington biographies I have read make any mention of "St. James Infirmary." This even though his band recorded it twice in 1930 - as The Ten Blackberries (with Mills assuming lead vocals under the pseudonym Sunny Smith), and again as The Harlem Hot Chocolates. But, really, it's not surprising. SJI is little more than a small footnote in the history of a man responsible for such standards as "Sophisticated Lady," "Black and Tan Fantasy," "Mood Indigo" and seemingly countless other significant compositions.

Porter Grainger: Sheet Music

Some time back I posted both an MP3 and the lyrics to a 1927 Porter Grainger song called "Song From a Cotton Field." You can see those postings here. The MP3 features Grainger as both pianist and vocalist.

A couple of months ago the sheet music for a number of Grainger songs came up for sale. I could only afford to bid for one of them, and this is it.

There are a few things about the cover that catch my attention. First, of course, is the photograph of the performers. "The Record Boys" (good luck trying to find them in any music database today) are dressed in tuxedos, looking very sophisticated, in order to represent a song with lyrics like:

All my life I've been makin' it
All my life white folks takin' it
This old heart they jus' breakin' it
Ain't got a thing to show for what I've done done

(Of course, in those days publishers would design these covers with an empty frame where the photograph of a performer could be inserted before reprinting the music sheets. It could very well have been another performer of the song, Bessie Brown, who was pictured there. What I mean is, the photograph of The Record Boys was probably their standard publicity photo, and was not chosen with the theme of the particular song in mind. Even so, I still find the contrast jarring.)

The second is the subtitle. "A Southern Classic." There was nothing classic about this song. It was written by Porter Grainger not long before this sheet music was released. But its lyric hearkens back to the cotton fields, and I guess the publishers felt this was a good marketing ploy. I doubt Grainger would have objected; he wrote songs in order to make a living.

And then there is the publisher's stamp at the bottom of the page. None other than Gotham Music Service - the publishing arm of Mills Music, of which Irving Mills was vice-president; his brother Jack was president. (For those new to this subject, Irving Mills was Joe Primrose, the fictional - in more than one way - composer of "St. James Infirmary.")

So, back in 1927 Mills was actually publishing the music of Porter Grainger. This is the same Porter Grainger who, at about this time, wrote "Dyin' Crapshooter's Blues," which was long considered a Blind Willie McTell composition and a tribute of sorts to "St. James Infirmary," but which was not written by McTell and was recorded before "St. James Infirmary."

The images here should enlarge if you click on them. Pay attention to the small advertisements on the bottom of the pages - which are kind of like intrusive Internet ads. For instance one of them features songwriter Rube Bloom, who had a hit for Mills with "Soliloquy" and who was one of the many who recorded SJI under the Mills umbrella in 1930.

Minnie the Moocher: the "controversy" over the Hi-De-Hos

I have a few posts waiting in the wings, so you will be seeing them in close succession. I have chosen this one as the first of these because it refers to the previous post, about a rambunctious, startling, and thoroughly captivating modern New Orleans version of SJI. In that post I wrote that this version by the New Creations Brass Band contains "nods to the 1930s Cab Calloway with the call and response and the Hi-De-Hos."

So, about these Hi-De-Hos (or Ho De Hos . . .). I have written about these before. And I shall add a few more words about them here. But I do want to emphasize that, when I talk about the controversy, I am only talking about a pop song, and that the word "controversy" resides within that realm.

So here we go:

First, "Minnie The Moocher" was based upon two or three other songs - one being SJI (Calloway used SJI as his signature tune in his early days at the Cotton Club and insisted that its replacement should stay close, in the instrumental arrangement, to SJI) and another being an old song from the Wild West, "Willie The Weeper" (from which Calloway and Irving Mills borrowed very heavily). In Cab Calloway's autobiography, "Of Minnie The Moocher And Me" (1976) Cab (with his co-writer Bryant Rollins) said:

"The 'hi-de-ho' part came later, and it was completely unexpected and unplanned. ... During one show that was being broadcast over nationwide radio in the spring of 1931, not long after we started using 'Minnie the Moocher' as our theme song, I was singing, and in the middle of a verse, as it happens sometimes, the damned lyrics went right out of my head. I forgot them completely. I couldn't leave a blank there as I might have done if we weren't on the air. I had to fill the space, so I just started to scat-sing the first thing that came into my mind.
"'Hi-de-hi-de-hi-de-ho. Hi-de-hi-de-hi-de-ho. Ho-de-ho-de-ho-de-hee. Oodlee-odlyee-odlyee-oodlee-doo. Hi-de-ho-de-ho-de-hee.' The crowd went crazy. And I went right on with it - right over the live radio - like it was written that way. Then I asked the band to follow it with me and I sang, 'Dwaa-de-dwaa-de-dwaa-de-doo.' And the band responded. By this time, whenever the band responded some of the people in the audience were beginning to chime in as well. So I motioned to the band to hold up and I asked the audience to join in. And I sang and the audience responded; they hollered back and nearly brought the roof down. We went on and on for I don't know how long, and by the end the rafters were rocking and the people were standing up and cheering."


That sounds pretty straight forward. But, in his introduction to the same book Calloway also wrote, referring to Minnie:
"I don't know how it got started, really, the scat singing. I think one night in the Cotton Club I just forgot the words to a song and started to scat to keep the song going ..."

Hmmm. His manager and co-writer (Irving Mills), on the other hand, was adamant that he, Mills, wrote most of the song, basing it upon "Willie The Weeper," and that the call-and-response had always been an integral part of it, as it had been with "Willie The Weeper." From the link above: "Irving Mills claimed he wrote 'Minnie the Moocher' himself. He completed it in a couple of hours, using one of the Mills Music house musicians to transcribe the melody." Calloway then, according to the 1933 newspaper interview with Mills, “injected his catching musical personality into the piece.”

The image accompanying this post is from one of the first sheet-music covers for "Minnie The Moocher." (Sheet music sales were still a major commercial enterprise.)  The date is 1931, the year Calloway started performing the song and, as you can see in the image below, the scat-singing was already integrated into the song sheet. (Clicking should enlarge the image.) Calloway became known as "The Hi-De-Ho Man," audiences loved responding to his Hi-De-Hos and - from the perspective of his career - "Minnie The Moocher" and its call and response were very important.

This doesn't, by any means, settle the "controversy." But it might help to give it an outline.

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

Ahhhh.

I have been looking for this sheet music for years. Dare I say, for at least a decade?! And it escaped me. It was as if the object did not exist. I mean, I read about it, and I even 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 two months ago 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. 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 importance to me. And I was the only one to enter a bid. Nobody else in the world cared. It was my golden grail. And nobody else cared. There were no other bids. And so I now possess (what I thought to be) a great historical document at a cost of ninety-nine cents (plus postage).

I must be deluded. I have been pursuing this story, this history of "St. James Infirmary," for over a decade. 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 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. So it is possible that Baxter released this edition 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 sheet music with lyrics is below - the pages should expand when you click on them. I leave it to you to compare this music with the versions 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."