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.

The Carter Family, Ralph Peer, copyright ... and, oh, Lesley Riddle

A.P., Sara, and Maybelle Carter
The original Carter Family

The Carter Family, immensely popular musicians a century ago, helped usher in "Country Music." At the time it was labelled "Hillbilly Music." They have a fascinating history, including a long stay in Mexico where they performed live on a radio station owned by an entrepreneur who made most of his fortune by enticing men to travel to his "hospital" near the radio station, and have goat gonads implanted in their scrotums. A cure for impotence. Following a few deaths (and a few miraculous cures) Dr. Brinley lost his fortune and his radio station. The Carter's were popular draws to the station; adverts recommended the treatments.

The Carter Family might be best remembered these days from their relationship with Johnny Cash. Johnny married June Carter; but she insisted he kick his drug addictions first. At one point the Carters, with rifles at the ready, kept dealers away while Johnny went cold turkey.

 The Carter Family was managed by music publisher Ralph Peer, from the time he "discovered" them in 1927. Not long before, Peer had signed a contract with the Victor Recording Company through which he received an annual salary of one dollar but, "my publishing firm would own the copyrights, and thus I would be compensated by the royalties resulting from the compositions that I would select for recording purposes."

In order to make money Peer needed clients who wrote their own songs (and who would sign over to him ownership of their material). This worked well for his client, Jimmie Rodgers, who wrote his own material. But the Carters - Alvin Pleasant (A.P.), Maybelle, and Sara - were not songwriters. They were expert at interpreting Appalachian songs they had been brought up with. Peer instructed them to find and modify already existing songs. These would be copyrighted as new songs, with A.P listed as the composer of both words and melody. The royalties did not come directly to the Carters, though. The money was funneled through Ralph Peer. He gave the Carters a portion of the funds, enough to keep them loyal.

Because of this arrangement with Ralph Peer, A.P. Carter went on many journeys through Appalachia in search of songs they could add to the Carter's copyrights. A.P. found the material in people's backyards and kitchens and front porches, where they played the songs of their ancestors. He found them in hymnals and songbooks. The old songs that survived in the Carters' home state of Virginia and surrounding territory were raw material.

The original Carter Family made over 240 records between 1927 and their break-up in 1943. Almost all of these were based upon songs they did not write themselves (you can count exceptions on the fingers of one hand).

As an example, "Bury Me Beneath the Willow" was based upon a traditional folk song called "Under the Willow Tree."

Here is the opening verse and the chorus from the original:

My heart is broken, I am in sorrow
For the only one I love
I ne'er shall see his face again
Unless we meet in heaven above

Chorus: Then bury me beneath the willow
Beneath the weeping willow tree
And when he knows that I am sleeping
Then perhaps he'll come and weep for me

Here is the opening verse and the chorus from the Carter Family variation:

My heart is sad and I'm in sorrow
For the only one I love
When shall I see him, oh, no, never
Till I meet him in heaven above

Chorus
Oh, bury me under the weeping willow
Yes, under the weeping willow tree
So he may know where I am sleeping
And perhaps he will weep for me

Many, maybe most, Carter songs were like this. The cash machine kept dinging for Ralph Peer, and the Carters received a bit of the profits. Enough to keep them loyal.

For a few years A.P travelled through Appalachia in search of "new" songs he could transcribe and copyright. For much of this time he travelled with his friend Lesley Riddle. Riddle was an innovative guitarist with a prodigious musical memory (A.P. had neither). Riddle taught A.P. to play guitar - but A.P. never progressed beyond rudiments. Riddle taught Maybelle a picking method which became famous as "the Carter scratch," which became the basis for Johnny Cash's musical style. In the Appalachian homes they visited, A.P. scribbled down the lyrics while Riddle memorized the melody and the chord changes, and then taught them to Maybelle and Sara. Riddle (who we shall revisit in an upcoming entry) was black and, due to his association with the Carters, one of the formative personalities in Country music. He is not much remembered today, though. I wonder why?

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.

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.

"This Land is Your Land" - and copyright

Woody Guthrie's song, "This Land is Your Land," has been making the news lately. A class action lawsuit is hoping to bring the song into the public domain.

Guthrie published the song in 1945 (although he wrote it five years earlier). At that time copyright extended for 28 years beyond the date of publication, after which it could be re-registered for a further 28 years. Guthrie did not renew the copyright, and so it should have entered the public domain in 1973. A publishing company, though, registered the song as a new creation in 1956 (eleven years after Guthrie published the song) and renewed it in 1984 - by which time the length of copyright had been extended considerably. Clearly (as with Irving Mills and "St. James Infirmary"), they had no right to ownership of the song.

Guthrie based his melody on earlier songs.

An old turn of the 20th century Baptist hymn called "Oh My Loving Brother":

Which The Carter Family used for their song "Little Darling Pal of Mine," recorded in 1928:
And again for "When the World's on Fire," recorded in 1930:


In this context it is interesting that - as I discuss in "I Went Down to St. James Infirmary" - song publisher Ralph Peer asked the Carters to modify the traditional songs they heard in their native Appalachia in such a way as to allow the songs to move from the public domain into copyrightable material.  Peer then assumed the copyright for his publishing company, and kept the Carters loyal to him by assigning them a portion of the royalties (which was a better deal than most publishers were offering at the time).

Some writers, such as Barry Mazor in his important (if hagiographic) 2015 biography "Ralph Peer and the Making of Popular Roots Music," (Chicago Review Press - with a co-copyright credit to Peer's publishing company Southern Music) assert that this is just good business. The reasoning goes that it is the business of song publishing, and the profits that flow from it, that allow these songs to survive and enter public consciousness. In this way capitalism is good for our commonality and for cultural well-being.

More idealistic assertions suggest that song ownership should always reside with the writer, that simply because you have more money does not give you the right to profit excessively from somebody else's work; publishing revenue should be enough. Simply because there is a common practice does not make it a right practice.

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.)

Copyright and St. James Infirmary - a personal rant

Who owns a song?
Or anything else?
image © Robert W Harwood  ; )

I recently exchanged some comments with a fellow photographer. She had found, quite by accident, that a painter had incorporated one of her images as a chief design feature in one of his paintings. That painting was on display (and for sale) in a gallery. She, Lorrie, commented:

    It was a surreal experience for me to see my work manipulated and presented as fine art for sale. I pondered whether to contact him, but I let the impulse go, as my reaction was not one of indignation but rather befuddled amusement. Yes, he had violated copyright by using my photo for commercial purposes, but I was swept up in philosophical thoughts about what constitutes original content.

It is that question of Lorrie's, "what constitutes original content?" that is at the heart of any copyright argument. Here is my response to her:

    It is an interesting discussion you are entering into, Lorrie. 
    Things related to "intellectual ownership" and "copyright" become complicated. Things related to "courtesy" do not. Informing a person of your use of their work (or even asking permission) is common courtesy.
    Copyright use, the question of who owns these sorts of images, is related to courtesy, but is entangled with bureaucratic tape. So, here are my few words on that.
    Copyright was originally - and we're talking 18th and 19th century in the U.S. - intended as a way of limiting a person's ability to profit from something he or she created. It was recognized that everything - from a painting to a spinning wheel - was based on something that preceded it, that nothing is original, and so ultimately belongs to our commonality. In other words, copyright ensured that the item returned, within a reasonable amount of time, into the public stream; in this way others (the public in general) could benefit from it and incorporate it into their own explorations, without fear of repercussions. And thereby to help us all progress.
    The notion of copyright changed as corporations became more influential in legal processes, and it segued into a means of preventing commodities or ideas from becoming public property - they would probably refer to it as protection of investment. So, in effect, the notion of copyright did an about-face. And that might be why something about current copyright law has a peculiar, and not attractive, smell.
    One thing it does, this contemporary interpretation of ownership, is undermine common courtesy. We are not, in this legal notion, participating in a mutual undertaking (that is, living life with concern for each other) but are instead isolated from each other in a kind of pecuniary or egoistic selfishness.

The history of "St. James Infirmary" is intimately entangled with copyright law. In the case of SJI, copyright removed it from the public domain. This is a peculiar thing, and it is a disturbing thing. Were it not for the fact that SJI is so obviously not an original composition, it would still be restricted by copyright protection. But, you see, that returns us to Lorrie's question of "what constitutes original content." Even the most cursory thinking on this matter should reveal to us that we are not the originators of anything - we modify what went before. And it is this incremental increase in knowledge and creativity that moves civilization forward. The intention of copyright law was to encourage people to innovate, to develop new ideas and contraptions, by offering a period of exclusive remuneration. That period was limited in order to ensure that society as a whole benefited. Everything arises from the common ground, and the common ground needs to remain fertile.

If you doubt this, the following quote - cited in Lewis Hyde's "Common As Air: Revolution, Art, And Ownership" (2010) - is from a 1988 review of copyright law from the U.S. House of Representatives:

    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.

Now, having said all this, I have to admit that if I was the author of a song, or a book, or a spinning wheel that was returning significant profits, I might want the copyright extended for as long as possible. (Thus the stance of Walt Disney Corp, Paul McCartney, and so on.) Well, at least part of me would. Another part, I hope my primary part, would recognize the place from which I received inspiration and would prefer to, as at least a gesture of gratitude, return my creation to that place, to the human race.

This is only reasonable.

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."

 

 

More copyright questions: "Grist for the Mills"

Ratzo B. Harris

Well, this seems to be a day for copyright issues! Hours after I had written the article below, I received - from one of my readers - a link to another discussion that muses about copyright

The "Mills" in the title above refers, no doubt, to Irving Mills. And that part of the title is also the title (are you following?) of an article by bassist Ratzo B. Harris. The article concerns a number of things, in part a confession of a painful misunderstanding, but ends up discussing concerns about how financial difficulty or professional relationships can result in misattributed copyright assignments. (From another article by Ratzo Harris, but pertinent to this discussion: "there is the problem of whether something agreed to vis-à-vis economic coercion is actually a matter of mutual consent.")

For those unfamiliar with the music of Duke Ellington - who figures prominently in this article - let me say here that Billy Strayhorn was a gifted composer, pianist, and arranger who was, for many years, part of the Duke Ellington organization. While he and Ellington worked closely together, it is often difficult to determine which compositions Strayhorn originated (and were credited as a collaboration between Ellington and Strayhorn), which ones Ellington originated and Strayhorn modified (but for which Ellington retained copyright credit), and so on. In the same way, sort of, that there is controversy over how much Irving Mills contributed to the many Ellington tunes on which he receives co-composer credit (likely more than is generally opined).

Okay, here I shall take a deep breath. And let Ratzo B. Harris tell his own story. His article can be found here, at The New Music Box website: "Grist For The Mills"

Copyright article - from "Brain Pickings"

Maria Popova

Readers of this blog will be aware that the history of "St. James Infirmary" is intimately entangled with issues of copyright. There is an argument, easily sustained, that rigid copyright law is antithetical to a culture's creative evolution - and, by extension, contributes to stagnation and decline.

I have just encountered an article from . . . well, a most interesting blog called "Brain Pickings," managed by Maria Popova. The article can be found here: Transformation As Authorship. Well-written and concise, it is definitely recommended reading.

Groanbox and a variation on SJI - prepare to be dazzled

Since posting the previous article, I have received more information about "Groanbox" and feel a need to update you.

The video in the previous post was made before "The Groanbox Boys" included a percussionist (check out that link), thereby expanding the duo into a trio and modifying their name to Groanbox. Man, they work well together!

So . . . about this video. Michael, the accordionist, wrote that they had every intention of recording their version of "St. James Infirmary," but "at the last minute I managed to come up with some new words, and a few new chords to turn it into an 'original' composition." Bravo! This is what songs like SJI  - had it remained in the public domain from the start (where it belonged) - should have been inspiring all along.

The version below differs quite a bit from the one on their pre-trio album, Fences Come Down, but I think both are stellar performances. Here, about three minutes in, the singer intones "I wake up and she's gone gone gone," as the percussionist mimics a bird flying away, and then, led by the banjo, the group launches the song into a kind of uptempo gypsy jazz.

It's not easy to make music like this.

So, without further ado, here is Groanbox with their SJI inspired "Darling Lou." Prepare to be dazzled.

(And if you like this song, please show your support of Groanbox, they are a unique and rewarding experience!)

"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.

Common As Air - a reading recommendation

I have been away from this blog for some time, and this will be one of my last posts for some time yet. More about that later - for now, though, here is a reading recommendation.

Lewis Hyde's book Common As Air - Revolution, Art, and Ownership was released about a month ago. The book offers a stimulating discussion of copyright and ownership of "intellectual property," areas that I have found unavoidable in my researches into "St. James Infirmary" and its ilk. We know something about how a song like "St. James Infirmary" grew organically, and what happened to the song when it was suddenly transformed into an owned thing, "protected" by copyright from the very processes that gave it life.

"Common As Air " brings a fresh perspective to questions - today more important than ever - arising out of ownership of the intangible. I recommend it highly - although I doubt that Irving Mills would have given it much praise.

Blind Willie McTell and the authorship of Dyin' Crapshooter's Blues

Last November, shortly after we finally published I Went Down to St. James Infirmary, the remarkable Rob Walker posted the first part of a five part interview with me on his blog NoNotes. Those interviews appeared intermittently on his site until January of this year. The interviews cover a lot of territory, from Irving Mills to John and Alan Lomax. The first of them centered on Blind Willie McTell and his famous song "Dyin' Crapshooter's Blues."

Q: One of your many original discoveries is that “Dyin’ Crapshooter’s Blues” is not, as I among many others had assumed, Blind Willie McTell’s re-invention of SJI. Turns out the way he sings that song is almost identical to the way Porter Grainger wrote it years earlier. How did you make that particular discovery?

A: It was a real shock to me when I found out about the earlier versions of Crapshooters’ Blues, Rob, but in retrospect it’s surprising that this is not generally known. I assume part of the reason is that McTell was very convincing when he said to John Lomax on a 1940 recording, “This is a song that I wrote myself . . .” and then in a 1956 recording, to Ed Rhodes, “I started writing this song in twenty-nine, tho’ I didn’t finish it — I didn’t finish it until 1932 . . .” In other words, there is no reason to look for a song’s composer if we know who the composer is.

The first book that I wrote about “St. James Infirmary,” A Rake’s Progress, made the assumption that McTell was completely responsible for “Dyin’ Crapshooter’s Blues.” In fact, the entire history of “St. James Infirmary” as we know it is rife with incorrect assumptions. In the first months after I had finished A Rake’s Progress I discovered that much of what I had written was incorrect. That book followed the well-trodden path, but as I looked more closely at the “facts,” the tale started to unravel. Realizing that one can accept nothing on assumption, I started to reinvestigate the history of the song and rewrite the book. In part, I Went Down to St. James Infirmary is an attempt to correct the record — to place the song in a more accurate historical context.

And so, in this second phase of research, nothing was taken for granted. If I read, for instance, that Irving Mills was born on such-and-such a date, I checked the census records. Regarding the origins of “Dyin’ Crapshooter’s Blues” the information has been fairly easily available since the mid-nineties. In 1990 the Document record label was created by Johann Ferdinand Parth, with the notion of reproducing the complete recorded output of blues and gospel singers from the late 19th century to the early 1940s. This was an immense project to be sure, but by 1995 two of the CDs Document released contained versions of “Dyin’ Crapshooter’s Blues” that had been recorded in 1927. This was two years before McTell claimed he started writing the song, thirteen years before he first recorded it.

These artists remain pretty obscure even today, though, and are unlikely to enter the collections of people interested in the likes of McTell, Charlie Patton, Blind Lemon Jefferson and so on. Some listeners might even consider them to be jazz songs. I think the jazz folk and the blues folk don’t cross into each other’s territory that often — which is odd, seeing as it was all mixed together in a bubbling gumbo at the beginning of time, in the 1920s.

Anyway, I actually found one or two of these old recordings on the jazz site www.redhotjazz.com. In the process of checking all my “facts,” I entered “Dyin’ Crapshooter’s Blues” in their search box and was given a list of artists to search including Ma Rainey, Lucille Bogan, Ida Cox and a host of others who never recorded the song. But eventually it turned up, as did the name of the original composer. As you know, Rob, Porter Grainger is an interesting character. He’s one of those people who have almost been rejected by history, but about whom small scraps of information can still be found. But there’s very little out there. I think the bit I wrote about him in I Went Down to St. James Infirmary triples what was previously known about Grainger.

When I learned about the authorship of “Crapshooter’s Blues” I was excited, of course. But I was simultaneously dismayed. By all reports, McTell was an honest, bright, and well-intentioned man. He did not, however, write that song, and yet he was adamant that he did. This symbolically underscores the relationship we have with everything of potentially commercial value. If something — be it an object, an idea, or a song — can be “owned,” it can be sold. The incessant flogging of songs, particularly when the song grew of its own accord, emerging out of the earth, seems wrong. If enough people can be made interested in something, it’s worth selling. Often it’s worth stealing. And that leaves me wondering if that’s just the way we are, or have we somehow lost our way?

WFHB Community Radio - yet again!

I can't believe I'm entering three posts in a row about WFHB, in Bloomington, Indiana. This must be quite the happening community radio station.

I have just heard that folklorist Margaret Lynn Steiner will be broadcasting on Tuesday, March 17th - St. Patrick's Day - from 9 to 11 pm (Eastern time). She says that her program will be split between songs from Northern Ireland (where I was born) and songs from Miramichi, New Brunswick (near where my brother lives). Of the former Margaret says, "Newtownbutler, in Co. Fernmanagh, Northern Ireland, had a very active living song tradition, certainly in the late 1970's. Local songs abounded, centering around hunting, Gaelic football,  and cockfighting, as well as songs celebrating the local topography, etc. All I had to do was walk into McQuillan's Pub, and I could just happen on a 'singsong.'"

Regarding Miramichi, Ms. Steiner has been attending their folksong festival since 1986. This is the oldest folk music festival in Canada. Dating from 1958 it has the primary function of preserving traditional songs and culture. One of the treasures of Miramichi has been Wilmot MacDonald, a singer with an impressive store of old songs  - and who is featured on a 1962 Smithsonian recording. Margaret Steiner contributed to a CD and book about MacDonald, that is available from the Maine Folklife Center, University of Maine.

Margaret Lynn Steiner: "Edward D. (Sandy Ives) has done a lot of work on the English-language tradition, especially focusing on 19th-century folk poets such as Larry Gorman and Joe Scott. Ronald Labelle, of the University of Moncton, has worked a lot with the Francophone tradition, and I've been working with singers who are bilingual and bicultural and looking at how they juggle their biculturalism musically."

Folklorists are important people. Song collecting is important work. In this - as Lucas Gonze puts it - age of copyright extremism, we need to broaden our base of inspiration. We need to be reminded that songs can be living things with a vitality and meaningfulness that, in terms of cultural and personal value, far outstrips the monetary lifespan of Mickey Mouse.

So, that's WFHB on Tuesday, March 17th, from 9 to 11 in the evening, Eastern time. I shall be scheduling an audio capture, so I can load it onto my iPod.

copyright vs public domain and the web

I love bumping into sites like this. How can we share our love of music when reproducing it - perhaps by posting our own rendition of, say, a Beatles song - can leave us open to legal challenges and/or performance charges? Lucas Gonze is obviously a man very familiar with the Internet, and too familiar with the problems inherent in "this era of copyright extremism" which, he goes on to explain in a podcast on the Digital Media Insider site (also available, btw, at iTunes), "is just going to wipe out a lot of those inputs. I don't think that people are going to play Beatles songs. I think the Beatles are going to disappear from memory - because they're going to be locked away. You really can't get to the stuff. And instead the music that was available for free use, that was under a Creative Commons license, that was very clearly in the public domain, or that was made before the recording era, I think that's what people will be using. They will be doing the five trillionth cover of 'Home On The Range' instead of a much better song, like 'She Came In Through The Bathroom Window,' because that's what's in the culture, and passing back and forth references to the same material but used in different ways. That's what you're doing when you're making cultural artifacts. I think people will look back at these lost items and say, 'These were such great songs! What happened to them?'"

Soup Greens is devoted to music that is clearly in the public domain. But it goes deeper than that, directly addressing the issue of how music copyright affects us in everyday life. While looking at his site, make sure to visit the menu item "Just my music" - here's Lucas and his guitars, doing some fine renditions of songs that are firmly ensconsced in the public domain.

Copyright Infringements Project

Fellow SJI enthusiast Rob Walker forwarded to me a letter he received from Charles Cronin. Mr. Cronin, among other things, runs a website from UCLA devoted to the question of music copyright infringement. This is a such a thorny issue. Music, of course, has a rich history of borrowing; that is essentially how new songs get written. But how to distinguish between borrowing and theft? And, are we in danger of mistaking the former for the latter, in danger of crippling the creative process in the service of business and profit?

This is an extraordinarily ambitious site. You can read an outline of a 1931-1932 court case that figures prominently in my book. This is in the "Case List" section, but it is also informative to browse the "Song List" section, where Mr. Cronin comments with both clarity and humour about specific songs. Read, for instance, his comments on the (in)famous case of "He's So Fine" vs. "My Sweet Lord."