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.

New Orleans - 2 variations on St. James Infirmary

After the tragic event on January 1st, 2025, it seemed appropriate to post a couple of performances - each with its distinct flavour - of a song closely related to the city of New Orleans. St. James Infirmary.

Pam and I stayed with friends in NOLA a few years ago. We heard the song played everywhere; in small jazz venues, on street corners, and in food venues such as the Cafe du Monde, all in the French quarter. A grand time was had by all. It was the Jazz Festival. Streets were crowded, everyone was smiling.

First, is an award-winning Canadian band, living on a small island off the west coast, Blue Moon Marquee. Exceptionally talented, their take on St. James Infirmary.

Next, New Orleans legend Trombone Shorty. At the Obama White House.

New Orleans will always rise from turmoils visited upon it - whether storms or terror attacks.

Thank you New Orleans!!!

Dee Dee Bridgewater and SJI

Continuing with contemporary approaches to SJI, here are two Dee Dee Bridgewater interpretations of the song.

Bridgewater does some gender-bending in her version. She recorded this on 2015s remarkable Dee Dee's Feathers.

I have included two of her variations. Like jazz (or the blues) her approach to the song allows her musicians to have space. Space. SJI allows space for improvisation and interpretation, and Dee Dee takes advantage of that.

Interview with Debbie Burke re IWDtSJI

Debbie Burke recently interviewed me for her blog, "Debbie Burke - jazz author."

She hosts a remarkable site - I recommend checking it out! Her books can be found via amazon, and on her site.

Since she was the interviewer and I was the interviewee, there's not much I can add, except, of course, for the interview itself. So, for those of you interested in following further, here is the link:

https://debbieburkeauthor.com/2024/01/29/book-review-i-went-down-to-st-james-infirmary-by-robert-w-harwood/

Thank you, Debbie.

Interpretations: St. James Infirmary & Simple Twist Of Fate

Back in September I promised a series of contemporary interpretations of St. James Infirmary. We started with a young Rufus Wainwright. This is the second in that series and you will find two variations this time (plus a delightful interpretation of "Simple Twist of Fate").

First, David Mattson.

David Mattson on guitar

Now living in Largo, Florida, David has lived in all but one of the U.S. states, and a few other countries. He currently uses a Joe Beck alto guitar, made for him by a friend. His interpretation of SJI is a charming reimagining, with the refrain "her left hand brushing back her hair" transforming into a tender conclusion. He would use his rewritten SJI when doing soundchecks, or as an opener for gigs, allowing lots of room for improvisation.

This is a beautiful example of how SJI can be adapted by creative artists; always recognizable, always different.

Raygun Carver

Our second example.

Raygun Carver - a band name for Michael Soiseth - released his first album, "Moon Fields Yawning," in 2020. Raised around Port Angeles, he has an idiosyncratic sound, with refreshing interpretations and beautifully crafted originals. Of the latter, his "Everywhere You Go Is Where You'll Be," suggests that regardless of where we live, regardless of where we move, we remain who we are - changing the place does not change the person. Ahhhh, but maybe, changing the person can change the place?

His take on SJI is invigorating.

And, of course, not only traditional songs are open to interpretation. Raygun Carver's phrasing and timing on Dylan's "Simple Twist of Fate" opens us up for a new listen. (For instance, cue in to Carver's song at about 1:10 - "like a freight train ...")

I am always grateful for fresh air.