Who Wrote Those “Livery Stable Blues”? Authorship Rights in Jazz and Law As Evidenced in Hart Et Al. V. Graham Thesis Presen
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Who Wrote Those “Livery Stable Blues”? Authorship Rights in Jazz and Law as Evidenced in Hart et al. v. Graham Thesis Presented in Partial Fulfillment of the Requirements for the Degree Master of Arts in the Graduate School of The Ohio State University By Katherine Murphy Maskell, B.A. Graduate Program in Musicology 2012 Thesis Committee: Graeme M. Boone, Ph.D., Advisor Charles M. Atkinson. Ph.D., Reader Mark L. Rudoff, M.M., L.L.B., Reader Copyright Katherine Murphy Maskell 2012 Abstract In 1917, the Original Dixieland Jazz Band (ODJB) released what has been famously known as the first mass-disseminated jazz record. A title change during production led to copyright registration for the B-side of the record bearing the title, “Barnyard Blues.” Due to a labeling error, the record itself displayed the title, “Livery Stable Blues.” The unauthorized release of sheet music titled “Livery Stable Blues,” allegedly based on the B-side song, prompted the ODJB to release its own sheet music titled “Barnyard Blues,” and to file for an injunction against the competition on copyright infringement grounds. In the resultant case, Hart et al. v. Graham, the court determined substantial similarity between the two pieces of sheet music. This finding, coupled with conflicting witness testimonies recounting the compositional process and identity of the song, raised questions about the function of the musical author and his rights to the song as intellectual property. This document is a case study that explores extant court records and period sources to evaluate the ways in which jazz musicians and legal professionals responded to these questions. Such analysis reveals points of contention between the jazz and legal communities with regard to the musical author’s rights, rooted in different definitions of the song as property. I propose that in contrast to the author’s moral claim in the jazz community that treated the song as dynamic property, period copyright law provided a ii narrower scope of rights dependent on copyright formalities. Despite the new tangibility afforded jazz by recordings, this restriction limited the legal protection for songs that jazz musicians claimed as their own. As the first significant intersection of jazz and copyright law arising from the first famous jazz record, Hart sheds light on what would become points of contention between the jazz and legal communities in future decades. Divergent perceptions of the function of the musical author, the identity of the song, and the relationship between author and song led to two opposed views of rights appropriation that would leave songs like “Livery Stable Blues” unprotected in the public domain. iii Dedication For Mikey, my Godson and nephew. iv Acknowledgments As the adage goes, when we create, we stand on the shoulders of giants. During the research process, I have had the honor to stand on the shoulders of veritable titans in jazz, musicology, law, library sciences, and American history, all of whom I would like to summarily thank. Many thanks to my committee, Dr. Boone, Dr. Atkinson, and Mark, for their open ears, minds and office doors, whose patience and insight have helped to forge my path toward success. This thesis would not have been possible without the brilliant expertise of the staffs at the Library of Congress, the National Archives and Records Administration Great Lakes Facility, the William Ransom Hogan Jazz Archive at Tulane University, the Institute of Jazz Studies at Rutgers University, and the New York Public Library Music Division. Travel to the Hogan Jazz Archive was generously funded by the Ohio State University College of Arts and Humanities Graduate Research Small Grant and the Ohio State University School of Music Graduate Student Professional Travel Grant, for which I am infinitely grateful. On a personal note, I wish to thank the faculty and students in the Ohio State Schools of Music and Law for fostering a creative learning community. My sincerest gratitude to the many teachers, throughout my education, that inspired my research. Thanks and love to my family and friends for keeping me motivated. Last, but never least, a word of thanks to Tom, for all his help, from satellite navigation to technical assistance. v Vita 2007 Intern for Director of Marketing and Sales, Smithsonian Folkways Recordings 2008 Cultural Resource Intern, Fairfax County Cultural Resource Management and Protection Section 2009 B.A., summa cum laude, Anthropology, George Mason University. B.A., summa cum laude, Music, George Mason University. Honors Program in General Education. Undergraduate Achievement Award, Music. George Mason University Academic Scholarship. Phi Kappa Phi. 2009-10 The Ohio State University Graduate School Fellowship. 2010- Graduate Teaching Associate, School of Music, The Ohio State University. Presentations and Publications 2012 “Who Wrote Those ‘Livery Stable Blues”?: Musical Ownership in Hart et al. v. Graham.” Hayes Graduate Research Forum, The Ohio State University (Columbus, Ohio). Awarded First Place, Arts Division. 2012 “Who Wrote Those ‘Livery Stable Blues”?: Authorship Rights in Jazz and Copyright Law as Evident in Hart et al. v. Graham” Joint Meeting of the American Musicological Society, Society for Ethnomusicology, and Society for Music Theory. (New Orleans, Louisiana). Fields of Study Major Field: Musicology vi Table of Contents Abstract……………………………………………………………………………... ii Dedication…………………………………………………………………………... iv Acknowledgments……………………………………………………………...…… v Vita………………………………………………………………………………….. vi Table of Figures…………………………………………………………………….. viii Introduction……...…………………………………………………………………. 1 Chapter 1: Expert Testimony: A Review of Scholarly Sources……….……..……... 8 Chapter 2: Witnesses: Examining Source Material………………………………… 24 Chapter 3: Who Wrote Those “Livery Stable Blues”?: Modeling Authorship…...… 39 Chapter 4: Lost in Transmission…..…………………….………….……….…........ 69 Chapter 5: ‘Now That’s the Story of the “Livery Stable Blues”’……....................... 86 Bibliography………………………………………………………………………… 94 Appendix A: Evidence…………………………...…………………………………. 99 Appendix B: Equity Case 914…...………………………………………..……….... 101 Appendix C: Court Findings………………………………………………………... 276 Appendix D: Periodicals Regarding Hart et al. v. Graham.....……………………... 278 vii Table of Figures 3-1: Introduction…………………………………………………………………… 75 3-2: Animal Calls in “Barnyard Blues”…………………………………………….. 80 viii Introduction As the “untuneful harmonists in ‘Peppery’ Melodies,”1 the Original Dixieland Jazz Band (ODJB) rose to national fame, from Chicago night clubs where the band formed to their epoch-making performances at Reisenweber’s posh “400” Club room.2 Variety featured the band’s performances at the “400” Club, noting the band’s uncanny ability to “draw business” with its shocking sounds.3 While at Reisenweber’s, the band’s rapidly spreading reputation and novel sound attracted the attention of recording companies. On January 29, 1917, merely two days after the ODJB opened at the “400” Club, Columbia Graphophone Company pursued the band to audition to make a record.4 A month later, on February 26, 1917, the band recorded “Dixie Jass Band One-Step” and “Livery Stable Blues,” with the Victor Talking Machine Company.5 The result of this historic session was what would become known as the first jazz record, Victor 18255. 1Ad for Reisenweber’s, New York Times, Jan. 27, 1917, 7. 2For more information about Reisenweber’s, Cf. William Kenney, Chicago Jazz: A Cultural History, 1904-1930 (New York: Oxford University Press, 1993), 67. 3Variety, Feb. 2, 1917, p.8; Feb. 9, 1917, p. 13; Mar. 16, 1917, p. 15. 4As the story is often repeated, the band was paid $250 and left the Columbia studio after the two test songs, “Darktown Strutter’s Ball” and “Indiana.” The master from the session was supposedly “filed away for business reasons and forgotten” until the ODJB’s reputation was well-established internationally. This meeting date is widely assumed to be the first recording that the band made and thus the ‘first jazz recording’ (despite its release after Victor 18255), but a letter from Columbia to the ODJB produced by Eddie Edwards’ family indicates that the January 30 meeting with A.E. Donovan was merely an audition and the first Columbia recording was not completed until after the first Victor recording. Tim Grayck with Frank Hoffman, Popular American Recording Pioneers, 1895-1925, New York: Haworth Press, 2000, 254- 255. Gracyk also cites Rust’s earlier research on Columbia Records that reveals only one entry for the ODJB on May 31, 1917, with no reference to an earlier test session. Cf. also Brian Rust, Needle Time, 11 (July 1987). 5Victor records indicate that the third take of “Dixie Jass Band One Step” and the third take of “Livery Stable Blues” were used for the released disc; however, discrepancies about the release date call into question the validity of the records. “Victor 18255,” Victor Encyclopedic Discography of Victor Records, < http://victor.library.ucsb.edu/index.php>, accessed Sept. 26, 2011: 2008-2011. 1 Released on March 7, 1917 as part of a “special list” of the Victor Record Review,6 Victor 18255 was sold for middling price of 75 cents a copy.7 It swiftly set a new sales record for the Victor Talking Machine Company.8 Advertisements hawked “the greatest dance record ever issued,”9 indeed, “SOME RECORD!”10 As with other successful recordings of popular music, demand for the record generated an ancillary market for sheet music based on its songs.11 A pair