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.

From Norway - could this be how the "St. James Infirmary" melody arrived in the U.S.?

Van Gogh
Gypsy Camp near Arles (1888)

The song, "St. James Infirmary" is so utterly American, so utterly Blues and Country and Jazz. It feels born in the southern U.S. And yet, and yet ... things migrate and resonate and percolate and integrate and odd things emerge from the substrate. Could the melody for SJI have originated with Norwegian gypsies in the nineteenth century?

Nicolay Gausel is a professor of Social Sciences at Universitetet i Stavanger, on the southwest coast of Norway. His studies include researching present and historical abuses of minorities.

Nicolay sent us a Norwegian song, probably from the turn of the 20th century, with the St. James Infirmary melody.

He wrote:
"You don't know me, but I came over some information you might like. There is some debate about the origin of the folk/jazz tune 'St.James infirmary'. I just would like to let you know that it resembles a great deal an old Norwegian/Swedish Tater song (Scandinavian word for Gypsy) entitled "Nu står jeg på resan så ferdig" ("Now here I stand ready to travel"). It's a song about a man leaving a woman he used to court, asking her to remember him but not for his faults. 

"If you like to listen to the song you can find it on Spotify. It's a rare take based on a social anthropology field study to record what is left of the old Norwegian Swedish Gypsy songs. Here's the link to the song:"

You can also listen to it on YouTube, here.

Tatars is another name for gypsies. They were heavily persecuted in Norway, Sweden, and probably every other country on the planet. As lads living near Belfast, Northern Ireland, my brother and I, sixty-five years ago, climbed a grassy hill one evening and looked down at a gypsy camp. This was an extraordinary sight resplendent with colorful carriages arranged in a circle, horses reigned to posts, a fire burning in the middle of the encampment. We ran home to tell our parents and they warned us to stay away. "These are dangerous people." Our parents believed that gypsies kidnap little children. Ethnic minorities are routinely accused of horrible things, the better to justify their persecution.

In a later email Nicolay wrote:
"This song is most likely from the period when Norway was in union with Sweden (1814-1905). In this period there was great emigration from Norway to the US starting in 1820 with a peak in 1860 ending around 1920. The Taters were heavily persecuted with organized hunts by hunters and local communities. So many of them would probably seek safety and a better life as far away from danger as they could get. I wouldn’t be surprised if the tune got sung on these boats crossing the Atlantic, especially since the lyric is about taking goodbye to someone dear – and the song is melancholic (like all Tater songs) so it would surely fit the situation people on the boats were in."

This melody, then, could not have travelled from North America to Norway. People were migrating in a single direction, escaping persecution, forced sterilization, murder. They had no reason to travel in the opposite direction, which would have been fatal, They were travelling from east to west. From Norway to the U.S. Bringing their songs (and melodies) with them.

Could the melody for SJI have originated with the Norwegian gypsies?

As Professor Gausel added, "I played the songs to a musician I know. He said there’s a very low chance a theme like this can be duplicated by chance."

Readers of this blog will recall that a Romany/Gypsy/Tatar version of "St. James Infirmary" was arranged by accordionist/multi-instrumentalist Michael Ward Bergeman, who recorded it with a gypsy band and then with Yo Yo Ma. He felt the melody suited the gypsy style. And maybe there is good reason for that.

The entry below features N. Gausel's translation of Nu står jag på resan så ferdig.