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.

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.

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):

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.

. . . So God Took Caruso Away - sheet music

Cover of  the 1921 sheet music from Jack Mills Inc.

I am posting this as a kind of Christmas gift to you, readers of this blog. This post will contain a bit of history, related to (what else?) "St. James Infirmary." And - with a nod to all those who come here for my occasional postings of sheet music - there will also be some, well, sheet music.

I suspect that most readers of this blog know that Irving Mills was intimately entangled with the history of the song "St. James Infirmary" - as the fictional "composer" of the song (Joe Primrose), as the manager of various performers who recorded the song, as the impresario who publicized the song, and as the vice-president of the company that published the sheet music.

In the years prior to the rise of Elvis Presley, sheet music routinely outsold records, and was a major source of revenue for those involved with its publication. It was much more important to retain revenue from sales of sheet music than from the sales of records.

In 1921, the Mills brothers (not the singing group) were struggling publishers. Rising from poverty in New York City, largely on the strength of their ability to promote - or plug - other people's songs, Jack and Irving Mills eventually became owners of one of the most productive and important music publishing companies in North America - Mills Music. Formed in 1919, it was initially called "Jack Mills Inc." and in 1921 the company struck gold. The opera singer Enrico Caruso was the most beloved, revered, and top-selling artist of the era. He had just died, and Jack Mills Inc. bought the rights to a song titled "They Needed a Songbird in Heaven (So God Took Caruso Away)."  The song became so popular that in 1925 Time magazine described it as: "a ditty that was scratched from every phonograph, mewed through the sinus cavities of every cabaret tenor who could boast a nose, caroled by housewives at their tubs and business men at their shaving." (I should emphasize here that "housewives at their tubs" refers not to bathtubs, but to washing tubs -where the laundry was done by hand.)

It is possible that, were it not for this ditty, Mills Music would not have survived to, seven years later, discover and promote a gritty folk song called "St. James Infirmary."

Popular as "They Needed a Songbird in Heaven" was then, I have been unable to unearth a single vocal recording of this song, either by contemporary artists or on CD compilations of old songs. So . . . while it once enjoyed the heights of popularity, it has been forgotten today and, thus, is probably new to you.

So, without further ado, below you can see the three pages of the sheet music from 1921 (which should enlarge if you click on them). Merry Christmas.

Saxophone sheet music for St. James Infirmary

I recently had a request to show the sheet music scans I have for the saxophone section of the orchestra, in the 1929 arrangement that Fred Van Eps made for the Gotham Music Service - aka Mills Music.

There are actually several saxophone parts, so I shall include them all here. At the top of this entry is the 1st saxophone part, written for alto sax.

The also sax also served as the third saxophone, and that music is immediately below:

And, finally, the music for the 2nd saxophone, written for tenor sax:

All these images should enlarge if you click on them.

"Stack O' Lee Blues" - the first sheet music (and more)

I have recently had some very interesting email exchanges with Max Morath, who I urge you to look into. I encountered him while ordering some sheet music that Mills Publishing produced back in 1924.

Irving Mills was, of course, Joe Primrose, pseudonymous and imaginary composer of "St. James Infirmary." Irving, along with his brother Jack, was also the proprietor of Mills Music, which early established itself as a purchaser and publisher of "blues" music. As I wrote in the book, I Went Down to St. James Infirmary, "Once it became clear to Irving and Jack Mills that there was money to be made from song copyrights, they were buying songs from black writers and reaping the profits from this newly popular musical form. . . . Musicians hoping to sell songs tramped the byways of Tin Pan Alley. They knew that if no one else would buy their songs, there was a good chance Irving Mills would."

As we know, Irving made a bundle off "St. James Infirmary" even though nobody in particular wrote it.

So I was intrigued when I saw this sheet music. This was the first time "Stack O' Lee" (or Stagger Lee, Stagolee, etc.) had been published, and I wondered if the Mills brothers were, back in 1924, attempting the same obfuscation they later performed with "St. James Infirmary." I mean, here was this old blues song, one that had arisen from the streets with no discernible original composer, being offered for sale as written by Ray Lopez and Lew Colwell. In fact, in a kind of synchronistic fashion, I had also been reading the recent book by Cecil Brown titled Stagolee Shot Billy (Harvard University Press, 2003) - an account of the history of the Stagolee song. Colwell wrote that, "In 1924 songwriters Ray Lopez and Lew Colwell published a sheet-music version called 'Stack O' Lee Blues.' This fact alone attests to the popularity of the song." (p 135).

I was surprised to find that this original publication of the "Stack O' Lee" song had almost nothing to do with its title. It is a silly dance tune which only mentions its supposed protagonist in the chorus: "Stack O' Lee Blues I don't know what it means. Come on honey let's be stepping, 'cause my feet won't keep still, I've just got to dance until I've had my fill. Stack O' Lee Blues. Play it over for me, I go crazy when I hear it, anywhere I may be, I long to hear them play that Stack O' Lee."

Here are some other lyrics: "Eeny, meeny, miney mo, they'll play some more, now let us catch a nigger by the toe, one more encore. We've got to left foot, right foot, hop and skip, Oh Lordy! hear that tune, ain't that a pipp . . ."

Oh dear me.

So, while this sheet music for Stack O' Lee wasn't an out-and-out ripoff, at least one of the authors had a history of entanglement in copyright issues. As recounted by one of the best music sites on the Web, www.redhotjazz.com, Ray Lopez had tried to copyright what is generally recognized as the first jazz record, "Livery Stable Blues," later known as "Barnyard Blues." The Original Dixieland Jass Band had neglected to copyright their smash hit, and Lopez scrambled to profit from it - although testimony showed that the Dixieland Jass Band had based their song on one of Lopez's earlier compositions.

Songwriting was like gold and prospectors everywhere were hoping to profit from it.

Here is the score for "Stack O' Lee Blues" as published in 1924. The pages should enlarge if you click on them.

St. James Infirmary piano sheet music

As you know, St. James Infirmary was composed by "Joe Primrose," who didn't exist. The song had been circulating for years, was firmly ensconced in the public domain, until copyrighted by the impresario and music publisher Irving Mills under the pseudonym of Joe Primrose. That was in 1928, the very early days of the song's commercial trajectory. The piano sheet music you see here, by far the most popular download on this site, was produced in 1929. I scanned this sheet music from an orchestral score, published by Mills Music, Inc. Clicking on the score should open a larger image, in which the notes can be clearly read. With all the people downloading this score - about 9,500 at the last count (March, 2012) - it would be good to read some of your impressions.