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

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

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.

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

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 of lawsuits associated with “Livery Stable Blues” stemmed from a problem the

Victor executives had with the band’s title for the song. In an effort to avoid offending target audiences with a seemingly vulgar title, Victor executives re-titled the B-side of Victor 18255 as “Barnyard Blues.” Due to a labeling error, however, the record itself retained the band’s original title, “Livery Stable Blues.” ODJB band members Dominic ‘Nick’ LaRocca and

Edwin ‘Eddie’ Edwards cited Victor mogul J.S. McDonald as “the cause of this mix-

6There is a fair amount of dispute concerning the release date for Victor 18255. Victor records show that the record was released in May 1917, whereas the Victor Record Review advertises the record in March of the same year. 7Victor Catalogue, 1917; Advertisements, Series 10, Box 1, Item 1, The Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University. New Orleans, LA. 8Alyn Shipton, Jazz (New York: Continuum, 2001), 104. “[Victor 18255] eventually notched up several hundred thousand copies (According to some reports, over a million. . .”; Russell Sanjek and David Sanjek, American Popular Music Business in the 20th Century (New York: Oxford University Press, 1991), 15. “A Victor session in February 1917 produced one of the company’s earliest million-seller Black Label records…” 9Advertisement in New Orleans Times-Picayune, April 15, 1917, Scrapbook 1, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. 10Advertisement for Philip Werlein, Ltd., “ADR 9/17,” Scrapbook 1, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. This is also a chapter title in Samuel Charters, A Trumpet around the Corner: The Story of New Orleans Jazz, Jackson, Miss.: University Press of Mississippi, 2008. 11“Livery Stable Blues,” published by Roger Graham, sold over 20,000 copies between late July and mid-September, each copy selling for between six and seven cents at various general stores and McKinley Music Company. Countersuit, December 19, 1917, 3, Hart et al. v. Graham (N.D. Ill. 1917), Case File E914; U.S. District Court for the Northern District of Illinois, Eastern Division (Chicago); Records of District Courts of the United States, Record Group 21; National Archives and Records Administration- Great Lakes Region (Chicago). 2 up.”12 However, the band’s manager, Max Hart, had by the time of the record release already sought copyright for the song under the name “Barnyard Blues,”13 leaving the title “Livery Stable Blues” unprotected by the federal copyright law.

The “mix-up” itself was enough to motivate the ODJB to switch to recording with

Aeolian Recording Company in July 1917, for whom the band produced four records. At the same time, the band also filed suit against the Victor Talking Machine Company for

$10,000 in damages resulting from poor sales of “Barnyard Blues,” which the ODJB claimed was a result of the title discrepancy. Victor opted to quietly settle out of court for $2,500 and a contract with the ODJB to record exclusively with them.14

The Victor suit was not the end of litigation for “Livery Stable Blues.” The publication of sheet music bearing this title subsequent to the record release sparked a copyright infringement suit brought by the ODJB against publisher Roger Graham fellow members of the early jazz community, Alcide Nunez and Ray Lopez, who claimed rights to

“Livery Stable Blues.”

As members of the early 1910s New Orleans and Chicago jazz community,

Nunez and Lopez developed professional relationships with members of the Original

Dixieland Jazz Band. Before the formation of the ODJB, LaRocca, Edwards, Nunez and pianist Henry Ragas played together in Stein’s Dixie Jass Band, which was hired by

Chicago music promoter Harry James in March 1916 to play at Schiller’s Café.15 Despite

12Undated note, 1, Series 8: Deposition, Folder 18, Item 1, “LaRocca’s Commentary,” Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. 13Copyright no. E-404182, Barnyard Blues, Fox Trot by Max Hart, of United States, April 9, 1917, 1 ms. copy; Claimant of Copyright: Max Hart 1564 Broadway New York, NY Unpublished, renewed 134410. Class E Musical Compositions. Library of Congress, Washington, DC. 14 H.O. Brunn, The Story of the Original Dixieland Jazz Band (New York: Da Capo, 1977), 78. 15For more information about Schiller’s Café, cf. Kenny, 24; 67. 3 the success of Stein’s Band at Schiller’s Café, the lack of increased salary prompted all members of the band, except drummer and leader Johnny Stein, to break the contract and move elsewhere in Chicago. While Larry Shields joined the new iteration of Stein’s group, his old band-mates formed a new group, The Original Dixie Land Jass Band,16 and began performing at the Del’Abe Café in the Hotel Normandy. During this period, drummer Tony ‘Spargo’ Sbarbaro joined the band.

By July 1916, Harry James hired The ODJB for a long-term engagement at the

Casino Gardens.17 During the band’s engagement there, while Nunez was still part of the band, the ODJB supposedly attracted the attention of Al Jolson, who recommended the band to agent Max Hart.18 After hearing the band perform, Hart assumed the position of manager and arranged for the ODJB’s first engagement at the Paradise Ballroom in New

York City. Despite the band’s growing performance opportunities, creative and business tensions mounted between Nunez and LaRocca. Although there are multiple explanations of the breakdown between Nunez and LaRocca, it suffices to say that Nunez left the band to return to New Orleans and Larry Shields took his place.19 At this point in late 1916, the ODJB as it would be heard on Victor 18255 was formed: Nick LaRocca, cornet and front man; Eddie Edwards, trombone; Larry Shields, clarinet; Henry Ragas, piano; and Tony Sbarbaro, drums.

16Gushee posits that the name was selected as a way to compete with Brown’s and Keppard’s bands. Larry Gushee, Pioneers of Jazz (Oxford: Oxford University Press, 2005), 298. 17For information about the Casino Gardens, cf. Kenny, Chicago Jazz: A Cultural History, 67. 18Brunn, The Story of the Dixieland Jazz Band, 49-50. Sudhalter questions the validity of Brunn’s version of this story. See Richard Sudhalter, Lost Chords: White Musicians and Their Contributions to Jazz, 1915-1945 (New York: Oxford University Press, 1999), 13. 19Brunn, The Story of the Dixieland Jazz Band, 44-45; Charters, A Trumpet Around the Corner, 147. 4

After the March 1917 release of Victor 18255, Nunez and Lopez published sheet music for “Livery Stable Blues” with Chicago music publisher Roger Graham, which appeared in June the same year.20 Taking advantage of the title mix-up, the cover advertised the sheet music as correlating to Victor 18255 and the inside first page hailed the two jazz musicians as being “of the Original ‘Dixieland Jazz Band.’”21 After this, the

ODJB released sheet music for “Barnyard Blues” with music publisher Leo Feist. The Feist sheet music contained a warning printed on the first page, “Dealers are subject to

Damages for Selling or Having Copies of the Spurious Edition In Their Stock.”22

Nevertheless, the sales of the Feist edition could not compete with the sales of the

Graham edition.

The ensuing sheet music debacle resulted in the second of the two 1917 lawsuits involving “Livery Stable Blues,” which was a high-profile copyright infringement suit, Hart et al. v. Graham, heard in October 1917. LaRocca, along with the other band members and Hart, sought an injunction against Roger Graham’s printing sheet music for “Livery

Stable Blues” as a violation of copyright for Victor 18255. The civil suit was heard in the

Federal District Court of Northern Illinois, where Judge George A. Carpenter presided.

Hart proceeded for ten days, spanning from October 2 to October 12, attracting a flurry

20E403401- “Livery Stable Blues,” composed by Alcide Nunez and Ray Lopez of United States, May 24, 1917, 1 ms. copy; Claimant of copyright: Roger Graham 143 North Dearborn St. Chicago, IL, unpublished, renewed 129388. Library of Congress, Washington DC. The sheet music was subsequently published in E408051- “Livery Stable Blues” by Ray Lopez and Alcide Nunez of United States June 18, 1917, 2 copies Claimant of Copyright: Roger Graham 143 N. Dearborn St. Chicago, IL Published June 11, 1917 renewed 130521. Library of Congress, Washington DC. 21Alcide Nunez and Ray Lopez, Livery Stable Blues (Chicago: Roger Graham, 1917). 22D.J. LaRocca, Barnyard Blues (New York: Leo Feist, 1917). 5 of media attention. The trial drew large crowds and received coverage from a number of

Chicago newspapers and entertainment periodicals, including the New York Clipper.23

As a part of a case centered on copyright privileges, the Hart court sought to determine who composed “Livery Stable Blues” in order to appropriate rights to the proper author of the song. The present study explores extant court records and period sources surrounding Hart to identify and compare the ways in which jazz musicians and legal professionals representing period copyright law responded to this question. It seeks to identify central points of contention between the two groups in an effort to illuminate the legal and musical arguments that led to Carpenter’s conclusion, as well as the explicit and implicit frictions between legal and musical understandings of authorship.

Chapters 1 and 2 review past research about the ODJB, Victor 18255 in 1917, and

Hart et al. v. Graham, as they appear both in scholarly analysis and primary source material. Such a review reveals some of historiographical problems with research to date on the ODJB, including the band’s fraught position in jazz history. The sorting and assessment of available source material reveals multiple problems, ranging from incompleteness to the complexity of interpretation.

The evidentiary basis for studying Hart being established, the remaining chapters examine primary source material in an effort to understand “authorship” as it pertains to jazz and copyright law in 1917, with the ultimate goal of determining the author of

“Livery Stable Blues.” Chapter 3 begins with a discussion of authorship in the context of the case, which reveals two main concepts for the nature of the author appear: that of the

23“‘Blues are Blues, They Are’ Says Expert in ‘Blues’ Case.” Variety October 19, 1917. Reprinted in Karl Koening, Jazz in Print (1856-1929): An Anthology of Selected Early Recordings in Jazz History, Hillsdale: Pendragon Press, 2002. See Appendix D. 6 sole author as creator and owner, as put forth by legal counsels; and that of author as collaborator, presented by the musicians. These two different understandings of the role of the musical author raise questions about the relationship between authors and the works they create and own.

The nature of the musical work, as the product of the author’s creation and intangible object of ownership, serves as another point of contention in Hart. As a copyright case, Hart necessarily defined the boundaries of “Livery Stable Blues” as a musical work and the legally recognized media in which it may be transmitted. Chapter 4 contemplates the different conceptions of a musical work and the manner in which it may be transmitted according to jazz musicians and legal professionals. Differing concepts of the song as a musical work based on two different transmission schemes contributes to the final decision that “Livery Stable Blues” is unoriginal and thus part of the public domain.

The line of inquiries that extend from attempting to identify who wrote “Livery

Stable Blues” introduces critical sites of conflict between jazz musicians and legal professionals. It demonstrates the ways in which the Hart court responded to these issues, which in turn reflects the state of copyright law in relation to jazz at a pivotal moment in its history. In doing so, this study draws attention to the value of research on the dynamic relationship between jazz and copyright law.

Chapter 1: Expert Testimony: A Review of Scholarly Sources

The ODJB stands as a sturdy pillar of jazz historiography, canonized for making the “first jazz record” and for their influence on later jazz musicians, while at the same time belittled for the allegedly poor quality of their music and demonized for Dominic ‘Nick’ LaRocca’s racially-charged opinions on the origins of jazz. The band is part of early jazz history, stretching back into the nineteenth century and forward into the 1920s when hot and sweet styles reigned over the American popular music scene. They are representatives of the transition period in the late 1910s into the blended maturity of New Orleans style jazz. While the ODJB maintains a presence in jazz history, discussion is frequently confined to few essentialized details that overshadow the richness of their position.

Hart suffers from this relative lack of scholarly attention, being either disregarded, misrepresented, or poorly substantiated in scholarly literature. The cursory attention granted the case in scholarly texts is belied by the array of available sources on the case, which is distributed in various archives across the US. The primary source material surrounding the ODJB in this period, and more specifically

Hart, consists of an intriguing web of cultural, legal, and historical artifacts uninhibited by subsequent historiographical efforts. Although redolent with their own kinds of bias, the court records, periodicals, personal correspondence, oral histories, federal statute, and legal commentary together provide the provisional

8 means to reconstruct the case and its cultural context in order to study it for information about jazz recording and copyright in 1917.

The ODJB and Victor 18255 in Early Scholarly Publication

During the first half of the twentieth century, the ODJB did not figure prominently in early jazz histories. Paul Whiteman and Mary Margret McBride,

Winthrop Sargeant, and other scholars publishing books to explain the basics of jazz for the general public in the early twentieth century often avoid directly referring to the career of the ODJB, but make comments that may refer to the band and their particular “New Orleans” or “Dixieland” musical style. It is interesting to note that

Whiteman and McBride refer to Hart in detail, but do not mention the ODJB.24 Early in his career, Louis Armstrong described the band as follows: “The first great jazz orchestra was formed in New Orleans by a cornet player named Dominick James

LaRocca. They were the hottest five pieces that had ever been known before. They all came to be famous players and the Dixieland Band has gone down now in musical history.”25 In this statement, Louis Armstrong contributed to the mythology of jazz history that privileged the ODJB for their status as the “first” jazz band.

By mid-century, the ODJB had become regulars in jazz history, with their

Reisenweber’s appearance considered to introduce the general public to jazz. At this point in jazz history, scholars shift the ODJB away from being the first jazz band and toward their impact on the larger public. For Marshall Stearns, the ODJB was not the

24Paul Whiteman and Mary Margret McBride, Jazz (1926; repr., New York: Arno, 1974), 178-180. 25Louis Armstrong, Swing that Music (New York: Longmans, 1936), 10. 9 first jazz band, but they introduced a driving, hot music that marked “the beginning of the Jazz Age.” 26 No longer were the ODJB “the first” but rather ushered jazz into public notoriety.

Other scholars shifted attention away from the historical prominence of the

ODJB toward a cooler interpretation their contributions to jazz. André Hodeir emphasized the position of the band in relation to Victor 18255 as “the oldest known recording in which it is possible to recognize a work of jazz, however weak it may be.”27 Here, Hodeir places emphasis on the material object of the first jazz record over the importance of the band itself to the development of jazz style. Likewise,

Charles Edward Smith discussed the record in terms of its musical reflection of New

Orleans style jazz. He highlighted the collective improvisation reminiscent of Jack

Laine’s Reliance ragtime bands as representative of the “Dixieland style” or spirit evoked by similar New Orleans bands.28

Barry Ulanov introduced another wrinkle to the history of “Livery Stable

Blues.” He proposed that “Livery Stable Blues” “emerged” from a song played by

Jack Laine’s reliance bands, known as “Meatball Blues.”29 Ulanov did not provide citations for his claims, however, and his story does not seem to be corroborated in scholarly sources or extant source material. Nevertheless, the potential of another title for the same basic melody is possible given the creative process behind the authorship of the song discussed later.

26Marshall Stearns, Story of Jazz (New York: Oxford University Press, 1956), 154. 27Andre Hodeir, trans. David Noakes, Jazz: Its Evolution and Essence (New York: Grove, 1956), 23. 28Frederick Ramsey and Charles Edward Smith, Jazzmen (1939; repr., New York: Limelight, 1985), 49. 29Barry Ulanov, A History of Jazz in America, (1952; repr., New York: Da Capo, 1972), 81. 10

By the time of LaRocca’s death in 1961, the ODJB’s stature had been elevated, if not mythologized, by H. O. Brunn’s biography of the band. Brunn gave copious attention to the ODJB’s distinctive style, as well as its career and discography, devoting an entire chapter to “Livery Stable Blues.” Outside of Brunn, however, few other writers discuss the song in depth. French filmmaker and jazz connoisseur, Jean-Christophe Averty, who had aspirations of publishing a book about the ODJB, published a major article on their contributions to jazz. While addressing the Victor 18255 litigations, however, he mentioned the “Livery Stable Blues”

“affair”30 only in passing. Instead, Averty emphasized the “Dixieland Jass Band One

Step” and Victor lawsuit.

Published the same year, Frank Gillis’ article sought to review the “pertinent data” available about the “Livery Stable Blues” case and confront Brunn’s account by presenting “a more objective examination of the birth and development of this jazz standard.”31 Gillis challenged Brunn’s claim that “Livery Stable Blues” was authored by the ODJB and proposed what amounted to a collective authorship model.

Although he claimed to provide a review of pertinent data about the case, there is reference only to the final decision, not to any other part of the case transcript or any other associated documents besides a few contemporaneous newspaper articles.

Without a richer array of sources, Gillis missed the primary source material that might have added nuance to his argument. Despite this shortcoming, Gillis concluded by suggesting that because “Livery Stable Blues” was involved with not only the first

30Jean-Christophe Averty, “Contribution A L’Histoire de L’Original Dixieland Jass Band (II)” Cahiers du Jazz 4 (1961): 74-117, 74. 31Frank Gillis, “Biography of a Jazz Tune, “Livery Stable Blues”/Barnyard Blues,” Jazz Journal (June 1963): 25-27, 25. 11 jazz recording but so much legal action, it would “be remembered throughout jazz history.”32

Gunther Schuller aptly summarized scholarly positions on the ODJB, emphasizing the “acoustical fact[s]” and impact of Victor 18255 that provides the foundation for other discussions of the band:

[The ODJB] has been exaggeratedly denigrated, and because the ODJB was a white group, many have found it difficult to accord it the recognition it deserves. Others have, of course, wildly overrated the group and have tried to give the impression that it developed without benefit of any Negro influence, entirely out of its own creative resources…Their historic importance as ‘first jazz recordings ever’ makes objective listening understandably difficult. But beneath all the controversy regarding the band’s musical pre-eminence, their historical primacy, and the color of their skin, there lies a purely acoustical factual record.33

While Schuller’s widely cited book must be read in its own context as reflecting jazz scholarship in the 1960s, his argument concerning the ODJB and “their legendary million-dollar record”34 is still the dominant narrative in which the band and the record itself are placed.

The Position of the ODJB in Recent Jazz Historiography

Much of jazz historiography has focused on the ODJB for their contributions to the “New Orleans” style of early jazz, often dubbing the band “the first” in various ways. Many publications refer to the ODJB and Victor 18255 as reflecting the

32Gillis, 26. 33Gunther Schuller, Early Jazz: Its Roots and Musical Development, (1968; repr., New York: Oxford University Press, 1986), 175-76. 34Schuller, Early Jazz, 181. 12 relationship between popular music and the recording industry. More recent writings are likely to address the ODJB’s position as “the first” band with circumspection.

Thanks to the mass-dissemination of Victor 18255, the ODJB continues to hold the historical claim to the “first” jazz record. However, this honor itself forces the record and the band into broader disputes concerning the early recording, cultural, and musical history of jazz in the 1910s. Scholarly efforts to situate the origins of jazz according to race, regionalized or decentralized beginnings, and terminological diasporas for terms like ‘jazz,’ have called into question whether Victor 18255 is indeed the first jazz record. No matter how one answers that question, Victor 18255 is a unique historical object that represents, at the very least, the first mass- disseminated record whose music aurally displays many qualities of early jazz and has been considered as jazz by many generations of performers and fans.

Numerous scholars, including Larry Gushee35 and Court Carney,36 acknowledge the tremendous impact the ODJB made with its early recordings, but emphasize earlier contributions to jazz reaching back into the nineteenth century.

Some writers acknowledge the “undervalued” position the ODJB holds among many jazz scholars.37 Across the evolution of jazz as well as more recent jazz historiography and criticism, however, the ODJB has become subject to severe critical analysis. Such commentary seems to reflect broader agendas for cultural, historical, and musical interpretation. In some cases, these critiques overshadow

35Larry Gushee, “The Nineteenth Century Origins of Jazz,” Black Music Research Journal, 22 (2002): 151-74. 36Court Carney, “New Orleans and the Creation of Early Jazz,” Popular Music and Society 29/3 (July 2006): 299–315. 37Carney, “New Orleans and the Creation of Early Jazz,” 308. 13 detailed discussion of the band’s story and their place in early twentieth century

American culture.

Samuel Charters, along with Leonard Kunstadt, argued that the catalyst behind the success of Victor 18255 was the novelty of the animal sounds on the record.38 Whether or not the record was the first or the band played “original” improvised music, recent scholars acknowledge Victor 18255 as a musical influence on later generations of jazz musicians. In a more recent book, Samuel Charters celebrated Victor 18255 for its presentation of “a style of syncopated music different enough for other musicians to be forced to try to learn it as a distinct genre.”39 The recorded music prompted changes in band instrumentation, such as LaRocca’s cornet lead instead of violin or flute, and contributed to a major musical shift from a two- beat feel typical of ragtime and marches to a four-beat feel. The five-piece instrumentation of the ODJB was highly influential for the formation of later New

Orleans or Dixieland style bands. The band’s format of trumpet, trombone, clarinet, piano and drums became archetypal for early jazz and the release of their record became iconic for instrument technique and standard Dixieland jazz repertory.

Scott DeVeaux and Garry Giddins mentioned the ODJB in a larger narrative about New Orleans jazz, emphasizing that few people in 1917 cared that the band hailed from New Orleans. They placed Victor 18255 in the context of previous recordings of American popular music, particularly ragtime and band music, also noting that the ODJB was not the first band to be approached about recording jazz.

38Samuel Charters and Leonard Kunstadt, Jazz: A History of the New York Scene (Garden City: Doubleday, 1962), 60. 39Samuel Charters, A Trumpet around the Corner: The Story of New Orleans Jazz, (Jackson, Miss: University Press of Mississippi, 2008), 145. 14

Despite the popularity of Victor 18255 for “Livery Stable Blues” and the court case, however, DeVeaux and Giddins opted to analyze “Dixie Jass Band One-Step

(Introducing That Teasin’ Rag)”40 as a canonical number for Dixieland music. This was likely done because of the song’s status as a “Dixieland” standard, but DeVeaux and Giddins avoid mention of the copyright issue with Joe Jordan’s “That Teasin’

Rag,” choosing instead to focus on a traditional musical-formal analysis of the song.

Although scholars continue to affirm its important contribution to the environment of early jazz, they are divided about the position of the band in jazz history, especially with regard to their relation to the development of jazz. Some jazz scholars build on a long tradition of commentary regarding LaRocca’s character, especially his opinions about African American contributions to jazz or the band’s

European American identity. Even in this context Victor 18255 is rarely discussed in any substantial depth.

LaRocca and the Politics of Race and Promotion

One common theme among these texts is LaRocca’s notoriously gregarious personality and its effects on the image of the band. From the formation of the band to the ODJB’s rise to success and long term fame, many authors, including Samuel

Charters, Alyn Shipton and Richard Sudhalter, emphasize LaRocca’s ambition, shrewd sense of opportunity, and short-fused temper as defining features of the historical trajectory of the ODJB. LaRocca’s infamous character is also cited as a motivation behind the production of the first ODJB recording. LaRocca’s “carpe

40Scott DeVeaux and Gary Giddins, Jazz (New York: Norton, 2009), 91f. 15 diem”41 mentality and radical self-promotion helped the band gain the recognition necessary to achieve widespread success. In particular, Alyn Shipton refers to

LaRocca as “the most significant character” of the ODJB, describing him as a

“shameless self-publicist.”42 Arguing for LaRocca’s “seminal” role in jazz history,

Dicaire explained that the cornetist “damaged his reputation years after his career was over with boasts of playing a much larger role than he did. His comments lost him much respect in the jazz world.”43

LaRocca’s character, whether it is described as “abrasive,” “driven” or a combination of both, is most often linked to narratives about the ODJB as the

“Creators of Jazz.” The official ODJB letterhead, with its self-determined slogan

“Creators of Jazz,” coupled with LaRocca’s numerous interviews expressing the same sentiment, fuel these publications. In 2001, Brian Rust argued for a closer examination of the accuracy of the ODJB’s claim to fame. 44 By making connections between songs the ODJB recorded and other jazz standards, including a supposed influence from the piano introduction of “Bluein’ the Blues” on the beginning of

George Gershwin’s Rhapsody in Blue, Rust added fuel to LaRocca’s fire.

Its claim to creating jazz places the ODJB in the same position as other contemporaneous jazz musicians, like Jelly Roll Morton, who claimed to have invented jazz. Recent scholarship affirms that New Orleans bands played a similar

41Sudhalter, Lost Chords, 15. 42Shipton, Jazz, 102. 43David Dicaire, Jazz Musicians of the Early Years, to 1945 (Jefferson, N.C.: McFarland, 2003), 15. 44Brian Rust, “The Original Dixieland Jazz Band Creators of Jazz,” Jazz Journal International 54/12 (2001): 12-17. 16 style of music well before the formation of the ODJB.45 Even focusing on the release of Victor 18255 in 1917, Larry Gushee pointed out that “there were quite a few groups jockeying for position in the ‘inventors of jazz’ sweepstakes in late 1916 and

1917,”46 including the Original Creole Orchestra, Original Brown’s Jass Band from

Dixieland, and the ODJB. Thus, in light of the burgeoning jazz musical scene by

1917, the ODJB’s creation claim is seemingly impossible but still in keeping with the times. At the very least, the release of Victor 18255 introduced a large number of

Americans to jazz as it was being heard in urban clubs across the country.

Published three years after Gushee’s book, Jack Stewart’s article in Jazz

Archivist proposed a qualification to the “Creators of Jazz” claim. In addition to highlighting the stylistic and terminological ambiguities between ragtime, blues, and jazz, Stewart recast Gushee’s history of the term ‘jazz’ to emphasize the metrical shift between duple and quadruple time as a pivotal moment in jazz evolution. Arguing that there were “several ‘close-but-no-cigar’ compositions published between 1915 and 1917,”47 Stewart proposed that the ODJB’s fortuitous combination of ragtime and fox-trot rhythms allowed them to be one of many contributors, if not creators, of jazz.

Through individual and group interviews, however, Jack Stewart addresses the widespread suspicion and hostility directed at LaRocca, or the band as a whole, particularly with their claim to being the “Original” Dixieland Jazz Band.48

45This discussion swiftly grows well beyond the scope of the present argument, in substance and in citations. Cf., e.g., Floyd Levinson, “The Original Dixieland Jass Band,” Jazz Forum 3-4 (1992): 10- 11. 46Gushee, Pioneers of Jazz, 298. 47Jack Stewart, “The Original Dixieland Jazz Band’s Place in the Development of Jazz,” Jazz Archivist 19 (2005-6):16-24, 24. 48Stewart, “The Original Dixieland Jazz Band’s Place in the Development of Jazz,” 24. 17

Nevertheless, Stewart himself did not minimize the creative contributions of the

ODJB.

The significance of the ODJB’s claim to being the creators of jazz is magnified by their perceived racial identity as a “white jazz band.” This identity invites the band to be a staple of jazz narratives that address the impact of race on jazz history. While the racial profile of the band served as an identifying feature for the majority of its historiographical life, it has gained fresh notoriety in recent writing. The band serves to bolster both the “white contribution” to jazz, as in

Sudhalter’s book, and reinforce marginalization narratives for African American identity. As Shipton noted, the recording industry in 1917 was “white-owned and white-dominated . . . by that time very few attempts had been made to record African

American music.”49 The cultural climate, coupled with the fortuitous Reisenweber’s contract, would seem to have set up a privileged position for the ODJB in comparison to other historically significant jazz bands, such as the Original Creole Jazz Band.

The ODJB’s racial heritage and claims to the evolution of jazz provide prime fodder for scholarly criticism.

Ironically, Italian Americans (with members of the ODJB among them) at this time were not ubiquitously considered racially “white,” but often somewhere between black and white. Massive Italian emigration in response to the Italian Risorgimento in the late nineteenth and early twentieth century “coincided with the great migration of southern African Americans, African Caribbeans, and a little later Puerto Ricans

49Shipton, Jazz, 97. 18 and Mexicans,”50 such that Italians were culturally associated with “non-white” immigrants. When combined with scientific racism movements popular in the early twentieth century such as phrenology and eugenics, Italian Americans suffered their own discrimination alongside the continuing struggles of African and Asian

Americans.51

In particular, southern Italian immigrants like LaRocca, as the son of a

Sicilian shoemaker, were subject to this cultural environment. The race spectrum in early twentieth century American culture multiplies racial divisions and suggests the need to redefine the boundaries of racialized narratives in jazz history. It also undermines simplistic arguments concerning the racial dimension of the ODJB as a

“white” band. Despite this intricate race spectrum, recent scholarly analysis places the band on the white side of a gradient that plainly sets the ODJB against African

American and Creole bands.

LaRocca’s promotion of the ODJB as “creators of jazz,” in addition to his negative opinions regarding African American contributions to the development of jazz, was a politically destructive combination. He spent much of his public career after the ODJB claiming that jazz was a purely white music and that black musicians merely copied the ODJB’s innovations. The claim is obviously erroneous; however it is often taken out of context. As Gushee and Stewart noted, there were numerous claims to inventing jazz, made by “black,” “creole” and “white” musicians and bands.

LaRocca’s attitudes toward racial identity are also the product of twentieth-century

50Peter Vellon, “Between White Men and Negros,” in Anti-Italianism: Essays on a Prejudice, ed. William J. Connell and Fred Gardaphé (New York: McMillan, 2010): 23-32, 26. 51 In the aftermath of the Tallulah, Louisiana lynchings of Italian Americans, a local newspaper explained that “the average man will classify the population as whites, dagoes, and negroes.” Vellon, “Between White Men and Negros,” 26. 19

American enculturation that accepted racial prejudice. Nevertheless, his insistence on the racialized origins of jazz contributed to his infamous reputation and reinforced the

ODJB’s place in racialized jazz narratives.52

Regardless of the politics of promotion and race, the fact remains that the

ODJB still produced Victor 18255, a pivotal record in jazz history. Thus, its production and reception history should provide insight into the ways in which jazz was constructed and received at the moment it reached mass audiences. Such scholarship would better situate the record, and the band, in its broader cultural context.

Hart et al. v. Graham in Jazz Scholarship

As a significant event pursuant to the release of Victor 18255, Hart would seem to merit scholarly attention. The case is related to the “first jazz record” indicates that this is the first significant intersection of jazz and intellectual property law, marking another pivotal moment for both jazz and legal histories. Nevertheless, when the case is mentioned, it is part of a larger narrative that chronicles the story of the ODJB’s rise to fame or LaRocca’s drive and personality, but never in the context of an event that reflects cultural conceptions of jazz and intellectual property law in

1917.

52 In later interviews, LaRocca was adamant that bands like Kid Ory’s band and King Oliver’s Creole Jazz Band heard the ODJB records and stole instrumental breaks from those recordings. “It is only to bring to the public after forty-one years [that] the negro has never invented anything new." See Nick LaRocca Oral History, May 21, 1958, Reel II, transcript 23-24; May 21, 1958, Reel III, transcript 29. Hogan Jazz Archive, Tulane University, New Orleans, LA. 20

The exception to this scholarly neglect is the ODJB biography itself. With a research scope narrow enough to address the details of the case and a relationship close enough to the band to discuss the matter in depth, Brunn was able to devote an entire chapter to Hart (and more if one includes Brunn’s discussion of the recording process). Brunn’s close relationship and devotion to LaRocca is abundantly clear in this narrative of the case. It begins by arguing that “‘Livery Stable Blues’ was the rightful property of the Original Dixieland Jazz Band, both in name and substance,”53 stating that the song was written by LaRocca in 1912 and titled in 1916 while Stein’s

Band was playing at Schiller’s Café in Chicago. Brunn recalled Nunez as a jilted, vengeful band member seeking to publish sheet music to financially wound LaRocca, who “went into action immediately upon learning of the theft and publication of his brainchild.”54 Despite the quantity of information that Brunn presented, his language and arguments suggest a bias against Nunez and Lopez; he makes little effort to represent their side of the case.

Apart from Brunn’s account, Hart often is relegated to the status of a historical footnote. Schuller granted the case merely a sentence in reference to the

ODJB’s competitors. He cited Nunez as the cause of the “copyright ruckus,”55 but did not delve into the case proceedings, casting aside the details that provide cultural insight and instead referring readers to H. O. Brunn’s book by way of a discursive footnote. Similarly, Burton Peretti labeled LaRocca as the first jazz musician to start

“getting copyrights” but did not refer to Hart or any other specific ODJB case.56

53Brunn,The Story of the Original Dixieland Jazz Band, 75. 54Brunn, The Story of the Original Dixieland Jazz Band, 77. 55Schuller, Early Jazz, 184. 56Burton W. Peretti, The Creation of Jazz (Urbana: University of Illinois Press, 1992) 78. 21

Richard Sudhalter is among the few authors who discuss the case in any depth. Sudhalter criticized Brunn’s narrative for being “credulous” in its adherence to LaRocca’s notably biased retelling of the band’s story. Sudhalter presented the case itself as “one of the most colorful, if comic, episodes linking the Original

Dixieland Jazz band to Tom Brown and Ray Lopez.”57 Sudhalter’s version of the case responds to the question “Who wrote the ‘Livery Stable Blues’?” with “Who, in the end, cared?”58 This cursory treatment seems to dismiss the case in favor of other less

“comic” events in “white” jazz history.

Lynn Abbott and Doug Seroff pursued Hart in terms of its representation of the racialized climate in the jazz community, focused on LaRocca’s claim that jazz did not draw from African American musical traditions, in order to demonstrate the interracial connections between jazz song development.59 Drawing from witness testimony, Abbott and Seroff provided evidence to justify the possibility given the

ODJB’s adjustment and promulgation of “Brown Skin (Who You For?).” Unlike

Gillis, who focused on the authorship, this article focused on the racial implications proposed by the case and its cultural resonance.

Samuel Charters also included the ODJB’s legal woes in his chapter dedicated to Victor 18255. While he astutely acknowledges that Hart is an “early example of the difficulties inherent in the copyright practices of the new recording industry,”60 he did not develop the postulate, choosing instead to recount the story, focusing on the band’s relationship to the developing recording industry and music business. In

57Sudhalter, Lost Chords, 23. 58Sudhalter, Lost Chords, 23. 59Lynn Abbott and Doug Seroff, “Brown Skin (Who You Really For?)” Jazz Archivist 15 (2001): 10-16. 60Charters, A Trumpet Around the Corner, 146. 22

Charter’s version, the original title of the song recorded on the Side 2 is “Barnyard

Blues” which the record executives found offensive and retitled as “Livery Stable

Blues.” Unfortunately, this directly conflicts with other versions of the story.61

Further examination of extant source documents reveals the simple yet significant error on Charter’s part.62

On a whole, Hart has not received detailed analysis in scholarly jazz literature. When the case is discussed, it usually receives cursory, or even erroneous, attention. Although scholars have opted to focus on other events surrounding Victor

18255, Hart stands as a critical example of both the production history of the record and its reception by one cultural institution.

In a broader context, jazz historians have afforded the ODJB a unique position in history as an influential band who recorded the first mass-disseminated record.

The band’s unique cultural position, however, draws them into historical narratives that focus more on the band’s promotion tactics and their racialized identity and less on their contributions to the development of jazz and jazz history itself. The study of ancillary events surrounding the ODJB’s accomplishments, such as Hart, not only affords the band greater attention but also provides greater insight into jazz as it existed in 1917. In light of limited scholarly sources, careful study of source material is necessary to reach this goal.

61Charters does not provide a citation for this information. Cf. Charters, A Trumpet Around the Corner, 147ff. 62A similar error is made in Horst H. Lange, Als der Jazz began 1916-1923: Von der "Original Dixieland Jazz Band" bis zu King Olivers "Creole Jazz Band" (Berlin: Colloquium, 1991). 23

Chapter 2: Witnesses: Examining Source Material on Hart et al. v. Graham

There is a rich, albeit incomplete, collection of source material concerning

Hart from 1917. It may be separated into four main categories: extant court records, musical texts, archival documents, and periodical articles surrounding the case.

These sources provide essential insight into Hart, including direct testimony from the

ODJB band members, as well as details about the events in the case. Many of these source materials, including the case documents and periodical articles, re also reproduced in the Appendices at the end of this study.

Equity Case 914

The case file, reproduced in Appendix B, is housed at the National Archives and Records Administration Great Lakes Facility in Chicago, Illinois, where it is filed as Equity Case 914. This file provides the most direct information about the case, in as much as it constitutes the official court records. Despite the fact that these records are incomplete, the procedural discourse, depositions, affidavits, and examinations, present a written record of the case. The documents consist of legal discourse and verbal dialogue in the form of examination transcripts, as well as case evidence catalogued in Appendix A.

The case file includes the complaint filed July 17, 1917; the answer filed

August 15; an undated counterclaim; and the amended answer following on

September 17. These documents allow the researcher to reconstruct the procedure followed by the actors in the case. After the complaint documents are depositions from Murray Bloom, Tom Brown, Jules Cassard, Roger Graham, Nick LaRocca,

Theodore Morse, and Lee Orean Smith, as well as affidavits for Bert Kelly and

Alcide Nunez. Transcribed examinations from Ray Lopez, William Lambert, and in absentia examinations of Eddie Edwards, Max Hart, Raymond Hubbell, Louis

Joseph, Theodore Morse, Henry Ragas, Tony Sbarbaro, Larry Shields, and Lee Orean

Smith are present. The case file is completed by case evidence, including manuscript and print copies of both editions of the sheet music as well as proof of copyright registration for “Barn Yard Blues.” The court findings are notably absent from this case file.

Copies of the transcripts for the in absentia examinations of Eddie Edwards,

Max Hart, Raymond Hubbell, Louis Joseph, Theodore Morse, Henry Ragas, Tony

Sbarbaro, Larry Shields, and Lee Orean Smith and copies of the evidence are duplicated in the Dominic ‘Nick’ LaRocca Collection at the William Ransom Hogan

Jazz Archive at Tulane University in New Orleans, Louisiana. A copy of the Court

Findings, listed in Appendix B, which were notably absent from the Chicago case file, accompany these examinations, along with periodical and advertisement clippings as well as undated annotated commentary, likely written by LaRocca near the end of his life at the time of assembly of the collection for Brunn and the Hogan archive.

The court documents provide the primary evidence from which to construct a reliable narrative concerning the case proceedings. They also raise a number of questions. While the court documents may be trusted with a fair amount of confidence as representative of court activities, the fact that the majority of the extant examinations were produced prior to the actual court hearing invites conjecture that the contents may have been strategically phrased with an eye to legal argument rather than spontaneous expression of the facts. Thus, they may not provide the most accurate representations of the concept of authorship as understood by the witnesses and members of the court.

Written evidence prior to trial establishes that LaRocca claims sole authorship of “Livery Stable Blues” and that Nunez and Lopez counter that claim stating that they were sole owners; records of their examinations in court, however, are incomplete. While Lopez’s examination is present, statements from Nunez are absent from court records and LaRocca is represented only through depositions. The absence of direct testimony creates problems for reconstructing and interpreting the case. For the purpose of the present study, lack of documentation for the dueling authors makes it more difficult to assess their conceptions of authorship. Instead, we must turn to more contentious sources to represent these alleged authors.

Periodical Sources: Newspaper Articles

A collection of periodicals centered in Chicago, proximate to the location of the court hearing, serves as a limited measure to fill in the documentary gaps and

26 balance court documents. Eleven published articles, reprinted in Appendix D, constitute a representative sample of available articles surrounding the case.

Discrepancies among articles and court records, imputable in part to journalistic creative license and sensationalism, pose problems for trusting the validity of these sources.63 Facts about the case and the creation of “Livery Stable Blues” are confused as well. “Discoverer of Jazz Elucidates in Court” introduces Johnny Stein as being the trombone player in the band at Schiller’s the night the song was supposedly played. However, Stein played drums according to “Blues and More

Blues Go Blooey in Music Suit.” Based on other evidence, it is well known that

Edwards was the trombone player for the ODJB, even for the particular performance in which the article cites Stein. Edwards’ in absentia examination closely resembles the story represented in “Discoverer of Jazz,” thus demonstrating a possible name switch on the part of the journalist. Another example of such confusion is in “Blues and More Blue Go Blooey in Music Suit,” where the journalist cites Tom Brown as

“composer of ‘More Power Blues,”64 while Lopez claims authorship in case examinations, a claim supported by Nunez in other articles.

Notwithstanding issues with extant periodicals, there are a number of problems stemming from incomplete court records that may only be solved through the inclusion of periodicals as part of the evidentiary basis. Thus, the witness list cannot be completed without the help of periodicals. One article proposes that there were 35 witnesses, including “jazz experts, cabaret owners, and livery stable keepers”

63Among these errors and discrepancies are the creative name spellings for LaRocca and Nunez and the various aliases “Slap” White used, from Beethoven “Slap” White to James Aristotle “Slap” White, with “Professor” optionally added. See Appendix D. 64”Blues and More Blues Go Blooey in Music Suit.” Chicago Daily Tribune, October 12, 1917: 13. See Appendix D. 27 offered to identify “the composer of the world’s greatest jazz music.”65 Between the case file and periodical narratives, a total of 25 witnesses are identifiable, which leaves the identity of as many as ten witnesses unknown except that they were

“musical experts of all kinds and assortments.”66 It is still possible that there were only 25 witnesses and the article provided incorrect information, but this presents yet another unsolvable problem with the extant sources. Nevertheless, periodicals are the only source for identifying figures like Earl Condor and Jessie Allen, who would be lost without the combination of sources that serve as the basis for the witness list included as Appendix A.

Of course, lost examinations might have shed light on interpretations of authorship, or further clarified a relationship between band members, or even explained the relationship between “Livery Stable Blues” as aurally recorded to its printed sheet music counterparts “Barn Yard Blues” and “Livery Stable Blues.”

Nunez and LaRocca serve as a prime example of this lacuna. Although lacking direct testimony in court records, we do have periodical articles in which they both take on vibrant characters as prime witnesses. Among eleven such articles examined for this study, all refer to LaRocca and Nunez in terms of either their presence in the court room or their testimony, together implying that LaRocca and Nunez were examined as part of the proceedings. Since the validity of the quotes must come into question due to journalistic bias, sensationalism, and apparent discrepancies, LaRocca’s and

Nunez’s contribution to the case can only be interpreted based on general meaning and context within the case as a whole.

65“Jazz Masterpiece Authorship I dispute: Dominic Claims Alcide Purloined His Tone Picture of Emotions of Lovesick Colt,” Chicago Journal, October 11, 1917. See Appendix D. 66“Judge Dismisses Case of ‘Blues.’” Chicago Herald, October 13, 1917: 4. See Appendix D. 28

Problems of interpretation and incomplete records become apparent with different accounts of the compositional process for “Livery Stable Blues.” During

Nunez’s testimony, for example, he purportedly explained that he was musically illiterate.67 In the Chicago Daily News, Nunez is quoted to have explained “I don’t read music. I’m a born musician. Yes, sir. I plays by ear exclusively.”68 The following day, the Chicago American provided the following quote from Nunez’s examination: “‘Do you read music?’ said counsel. ‘No, suh, I’m a born musician, I am,’ said Nunez, ‘I never was learned a note in my life.’”69 While the two paraphrases in newspaper articles generically depict the same story, the manner in which they are constructed provides a different effect. Furthermore, the difference of details, including projected dialect and extra information like playing “by ear exclusively,” changes the overall representation of the examination, complicating interpretation of Nunez’s testimony in the absence of official court records.

The unreliability of periodical sources coupled with incomplete court records carries over into interpreting substantial pieces of the court case, such as the creative process contributing to “Livery Stable Blues” preceding recording or publication.

The two authors claiming rights to “Livery Stable Blues” would seem to be best positioned to present their versions of the creation of the song. In the absence of examinations in extant court records, however, scholars must rely on periodical sources as their primary source. “Discoverer of Jazz Elucidates in Court”

67This issue of music notational illiteracy is discussed more fully in Chapters 3 and 4. 68“Nobody Wrote Those ‘Livery Stable Blues.’” Chicago Daily News, Home Edition, October 11, 1917:3. See Appendix D. 69“Jazz Band May Play in Court.” Chicago American, Tenth Edition, October 12, 1917: sports, 1. See Appendix D. 29 reconstructs LaRocca’s testimony presenting a story of the song similar to Edwards’ examination:

“‘Well, the Kid [LaRocca] launched forth, ‘I came to Chicago with de original Dixie jazz band and we played in the Schiller cafe. See? Well, one night after the regular piece had been played der was a goil skylarkin’ on the floor, see? So I picks up the cornet and lets go a horse neigh at her.’ “‘Did she answer?’ inquired the jurist. ‘No,” said the Kid, “She only smiled. Then Stein, who was the trombone, he says ‘Great stuff, kid, put that in a number.’ “I have” I says, “I got one already and give them the parts. The drums was to imitate a storm, the trombone was to imitate a jackass or a cow moo, the clarinet was to imitate a rooster and me with the cornet was to be there with the big horse neigh.’”70

The same day, the same testimony is printed using entirely different language in the

Chicago American:

“Well a valve in my cornet got stuck and it made a funny noise…I experimented with the bray or neigh, and finally worked out my livery stable melody. One day when our band had finished playing a number at the Schiller Café, here in Chicago, there was a girl sort of skylarking around the floor and I blew a horse neigh at her on my cornet.”71

The Chicago Herald also presents their version of the story from LaRocca’s supposed testimony, adding even more variety to the periodical collection of the creation of the song:

“The piece was first produced in a Chicago café, he said, ‘I came to Chicago and played at the Schiller Café in Thirty-first street. One night when everybody was dancing a girl who was having an awfully good time wouldn’t get off the floor, but hollered ‘more, more!’ I tooted a little of the ‘Livery Stable Blues’ and the place went wild. We sat up all night to work out the parts for the different instruments.”72

While the subject matter conveyed in the different versions is similar, the presentation is entirely different, resulting in a different narrative for the readers. The elements of

70“Discoverer of Jazz Elucidates In Court.” Chicago Daily News, Home Edition, October 11, 1917: 1. See Appendix D. The court findings do not include Judge Carpenter making this comment. 71”At Last! Court Finds Man Who First Jazzed.” Chicago American, October 11, 1917: sports, 1. See Appendix D. 72”All Know Jazz, But No Music.” Chicago Daily Herald, October 12, 1917: 3. See Appendix D. 30 the story, including the setting and the “skylarking” activities of the girl, remain the same.

A similar recounting of the fortuitous creation of “Livery Stable Blues” appeared in the Variety article a week after the final decision was issued, covering the entirety of the case. Instead of using a direct quote from LaRocca about the dancer whom he teased with the animal sounds, Variety paraphrased the account as “a young woman who had imbibed generously began to cut indiscreet capers on the dance floor. One of the members of the band ripped out the shrill neigh of a horse on his clarinet.”73 Imbibing was a new detail to the story not covered by the previous newspapers.

As one might expect, Nunez’s testimony presents a different story. In the

Chicago Daily News, Nunez is said to have explained that

“nobody wrote ‘The Livery Stable Blues.’ Naw. Nobody writes any of that stuff. I invented the pony cry in the ‘Blues,’ and LaRocca, he puts in the horse neigh. We was in the Schiller café, rehearsin’, see? And I suggests that we take the ‘More Power Blues’ and hash ‘em up a bit. My friend, Ray Lopez, he wrote the ‘More Power Blues.’”74

A day later, as it was featured in the Chicago American, Nunez suggested that there

“ain’t no originality about this livery stable piece except the animal calls in it. . . . It was just hashed over from ‘The More Power Blues.’ Ray Lopez and me fixed it up.”75 While Nunez’s testimony proposes the similar circumstances for composition, the process differs dramatically from LaRocca’s account. Nunez also introduces

73“‘Blues are Blues, They Are’ says Expert in Blues Case.” Variety, October 19, 1917. See Appendix D. This is another example of incorrect information appearing in periodicals, as previously discussed. 74“Nobody Wrote Those Livery Stable Blues.” See Appendix D. 75”Jazz Band May Play in Court.” See Appendix D. 31

“More Power Blues,” a popular song the authorship to which Tom Brown claims during his examination, according to the Chicago Daily Tribune.76

The same is true for issues of interest to jazz history. Nominally determining original features of the song, the court often found its examinations digressing into discussions of genre definitions. These discussions provided fodder for sensationalism about the case, not only in generating interest about the emergent popular genres but also interest in the teleological content of those definitions. The most famous example is Professor White’s statement, “blues is blues,” discussed previously. As it appears in the Chicago Daily News, LaRocca explained the genre difference: “‘The blues’ said he, ‘is jazz. The jazz is blues. The blues means to the jazz what the rag means to ragtime, see?”77 Interestingly, a Chicago Daily Tribune article from two years prior had the headline “Blues is Jazz and Jazz is Blues.”78

While it is still possible that the LaRocca quote is accurate and original, the quote might just as likely to have been borrowed either by LaRocca or the journalist.

While distillation of these multiple sources provides a basic narrative for the supposed compositional process of “Livery Stable Blues” and establishes LaRocca and Nunez as present witnesses, the linguistic nuance of each iteration gives a different impression of the musicians, the setting, and even the way in which the song was composed. Despite these discrepancies, the periodicals provide the only written evidence from 1917 that captured LaRocca’s and Nunez’s roles in the case.

76“Blues and More Blues Go Blooey in Music Suit.” See Appendix D. 77“Discoverer of Jazz Elucidates in Court.” See Appendix D. This statement only appears in this article, not in the extant court transcript. Whether the statement was accurately reported or a journalistic turn of paraphrase, the quote embodies cultural conception of music and suggests stylistic similarities. 78Gordon Seagrove, “Blues is Jazz and Jazz is Blues,” Chicago Daily Tribune, Jul 11, 1915: E8. 32

There are a number of similarities between the articles. Details such as where the bands performed as well as details about the musicians lives constitute the content of most articles. Six articles, published by either the Chicago American or the

Chicago Daily News, use “dialect” to satirize the court case and to represent dialogues with the jazz musicians, as seen in the description of the creative genesis of

“Livery Stable Blues” presented earlier.79 In keeping with the Court Findings that approached all blues songs as the same, periodicals sensationalized the “blues is blues” concept. A total of six articles specifically address the issue of blues songs being the same, with four containing the phrase “blues is blues” and two referring to

May Hill or Nunez’s explanations that all blues are in some way alike.80

Although it may be argued that the periodicals may be treated as windows into

1917 culture that serve as examples of common language during the period, it is more difficult to interpret objectively the manner in which these articles were interpreted by their first readers. While assertions may be made based on corroborating evidence, it is unclear what part of the public owned Victor 18255 or what their cultural relationships to popular music of the day may have been. This problem of the silent reader presents yet another issue for fully reconstructing Hart, as a large portion of the cultural climate remains at best unknowable-yet-present actors that necessarily impacted the case proceedings.

79Chicago American: “Jazzy ‘Blues’,” “Blues and More Blues Go Blooey in Music Suit,” “Jazz Band to Play in Court,” and “Court Soft Pedals Jazz”; Chicago Daily News: “Discoverer of Jazz Elucidates in Court” and “Nobody Wrote Those Livery Stable Blues.” See Appendix D. 80For “blues is blues,” see “Blues are Blues Court Decrees,” “Blues and More Blues Go Blooey in Music Suit,” “Jazz Band in Lobby” and “‘Blues Are Blues,’ They Are.” For all blues are alike, see “Nobody Wrote Those Livery Stable Blues,” and “Jazz Band May Play in Court.” See Appendix D. 33

Sheet Music: “Livery Stable Blues” v. “Barnyard Blues”

The two pieces of sheet music at issue in Hart, “Livery Stable Blues” published by Roger Graham and “Barn Yard Blues” published by Leo Feist provided the basis for musical examination. In addition to their presence in the Chicago case file and the Nick LaRocca Collection, “Barn Yard Blues” is part of the Leo Feist

Collection at the Library of Congress, in Washington, D.C., along with the copyright specimen for “Livery Stable Blues.” These two pieces of sheet music, not Victor

18255, are the central objects of the court case and thus merit careful examination in their own right.

Much like periodicals, sheet music editions also serve as windows into 1917 culture, reflecting period advertising techniques, iconography, and printing methods.

Just as with the periodicals, it is difficult to interpret the ways in which such sheet music was consumed. The difference for sheet music is that figures given in the deposition indicate large numbers of both editions were purchased, although the

Graham edition outsold the Feist. However, the sheet music editions as objects are not so much the legal issue in Hart as the information contained on the sheet music necessary for domestic performance of the song(s).

Examining the sheet music reveals some of the catalysts for the Hart lawsuit.

The printed authors, LaRocca for “Barnyard Blues” and Nunez and Lopez for “Livery

Stable Blues,” all not only played together in bands, but also had a pedagogical relationship, with LaRocca learning music from Lopez and Lopez sharing his ideas with Nunez. Furthermore, the sheet music for “Livery Stable Blues” was published

34 in July, two months before the competitive publication of “Barnyard Blues,” and both following the recording by several months. Accordingly, the ghost arranger for Leo

Feist likely had access to the “Livery Stable Blues” sheet music, just as the Graham arranger likely had access to the Victor 18255 recording.

Musical analysis requires a set of prior assumptions, one of which could be that the music is representative of jazz in the late 1910s. One defining feature of this music is that it derives from oral tradition and that its practitioners are largely untrained in western art music notation. Thus, while the music as it appears graphically represented in sheet music form was largely pre-determined by the recording, it was not precisely understood in the same way as written music. This differentiation between oral and written transmission poses a particularly central problem for solving the riddle of authorship of the “Livery Stable Blues.”

Given the origins of the music as represented in print, Victor 18255 can be compared to both sheet music editions in order to distill a sense of the core musical material in the song. Just like every other source in this investigation, the record itself poses distinct interpretive problems, both in its owning right and in reference to the sheet music. Like the court records, the nature and content of this source will be discussed in later chapters.

Other Archival Sources

While providing the necessary details from which to reconstruct the essential elements of the court case, the myriad of sources described above still does not

35 definitively identify the author of “Livery Stable Blues.” In addition to these sources, the Hogan archive also houses an extensive oral history collection that include discussions about “Livery Stable Blues” and the Hart case, including Eddie Edwards,

Nick LaRocca, Ray Lopez, and Tony Sbarbaro, as well as members of the New

Orleans jazz community who were professionally connected to the ODJB, like Jack

‘Papa’ Laine. While these interviews provide invaluable insight into the case, the oral histories were taken years after the case occurred (most of the histories being taken in the late 1950s to early 1960s). In addition, testimony from descendants of the band members including LaRocca’s son, Jimmy, amplify their families’ allegiances regarding the case and authorship. This temporal separation from the case did not diminish the positionality of the interviewees, who maintained, and at times amplified, their opinions about authorship of the song and the outcome of the case.

The Dominic ‘Nick’ LaRocca Collection contains correspondence and undated, unsigned commentary purportedly produced by Nick LaRocca. Among these case materials are advertisements for “Victor 18255” and “Barnyard Blues,” as well as correspondence among band members and other individuals involved with the case. Among the correspondence is a letter from Ernie Erdman that is considered by the court and provides key evidence to understanding authorship in relation to

“Livery Stable Blues.” The papers housed in the LaRocca collection contain annotations purportedly from LaRocca himself, containing more of his opinions about the topic.

Period Legal Commentary

Up to this point, the sources mentioned have predominantly served to reconstruct the case or to define the musicians’ perspectives on “Livery Stable

Blues.” The lawsuit makes these musicians subject to American copyright law. In addition to the court records, therefore, statutory law and legal commentary provide insight into legal conceptions of authorship. Since this case involves the first mass- disseminated record to be recognized as “jazz,” with the song at hand roughly categorized as “blues,” the court recognized no common law precedent providing detail to the court case. The statutory law outlined in The Copyright Act of 1909

(“An Act to Amend and Consolidate the Acts Respecting Copyright”) provides the law under which the court operated. This is not to suggest that the law itself must be interpreted both by the court and by the historian.

American Copyright Law with Especial Reference to the Present United States

Copyright Act, published early in 1917, provides commentary on the amendments to statutory law on copyright and was likely to be available to legal counsel involved with Hart. This provides a supplement to statutory law and fills in gaps left by an absence of common law in order to interpret the court proceedings and findings. The pursuit of the question “who wrote those livery stable blues” begins here, with the court case and its legal commentary, in order to outline and interpret the way in which authorship was constructed, both legally and musically.

Together, these primary source materials provide the material for a detailed, albeit incomplete, reconstruction of Hart and establish an evidentiary basis for the

37 interpretation of authorship in early jazz that follows. As has been abundantly demonstrated, these sources have their idiomatic pitfalls, from missing witnesses to incorrect facts. In combination, however, these sources may provide a historical framework for Hart that allows it to be examined and analyzed in depth.

Chapter 3: “Who Wrote Those Livery Stable Blues”?: Modeling Authorship

As plaintiffs in the lawsuit, the ODJB, their manager Max Hart, and their prosecuting lawyers first established the ODJB’s ownership of “Barnyard Blues” by providing the April copyright registration for the song. They then sought to meet the legal burden of proof by demonstrating Nunez and Lopez’s access to “Livery Stable Blues” as it was performed and recorded by the ODJB. Members of the ODJB recounted the compositional process for the song as originating in the creative genius of front-man Nick

LaRocca with improvisatory additions from the rest of the band. LaRocca explained that the song grew out of a New Orleans jam session, followed by a fortuitous performance in a Chicago café:

The band, which included Nunez at that time, then capitalized on this evocative novelty in a new blues song. Next, the plaintiffs sought to establish substantial similarity between

“Livery Stable Blues” and “Barnyard Blues.” During witness examinations, the plaintiffs questioned witnesses about the first time they heard the song, whether or not they heard

Nunez and Lopez claim the song as their own, and when the song first came into existence.

81“At Last! Court Finds Man Who First Jazzed.” Similar stories are recounted in “Discoverer of Jazz Elucidates in Court,” “All Know Jazz, But No Music.” See Appendix D. 39

In order to support their sufficient similarity claim, the plaintiffs drew on expert testimony that unanimously found the songs to be similar. Expert witnesses ranged from contemporary composers and arrangers, like Victor Herbert, to jazz band leaders, such as

Tom Brown. Feist company songwriter Theodore Morse found that “those two numbers could be played at the same time and no difference would be noted that they were

82 different compositions.” In particular, Morse drew attention to the close similarity of the four-measure introductions, which were almost identical in both pieces. Composer Lee

Orean Smith’s examination found that the “theoretical structure is practically the same, both as to melody, not so much identical as to harmony, but the rhythmical feeling is practically identical.”83 Ragtime piano performer, ‘Professor’ James ‘Slap’ White, provided the decisive statement for the case: the two pieces of sheet music are different,

84 but they were both blues songs, and “all blues is blues.”

The defense rebutted these claims first by providing a contrasting access claim.

They sought to establish that the “Livery Stable Blues” sheet music was published and distributed months before the “Barnyard Blues” sheet music, thus the ODJB had access to copy the “Livery Stable Blues” sheet music. According to their own compositional process, the defendants argued that “Livery Stable Blues” was their song and was based

82 Theodore Morse, Interrogatory Transcript, 4:6-8, October 2, 1917, Hart et al. v. Graham (N.D. Ill. 1917), Case File E914; U.S. District Court for the Northern District of Illinois, Eastern Division (Chicago); Records of District Courts of the United States, Record Group 21; National Archives and Records Administration-Great Lakes Region (Chicago); See also “Examination of Theodore Morse,” Series 8, Folder 10, Item 1, 4:6-8, The Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix D. 83 Lee Orean Smith, Interrogatory Transcript, 1:27-29, October 2, 1917, Hart et al. v. Graham (N.D. Ill. 1917), Case File E914; U.S. District Court for the Northern District of Illinois, Eastern Division (Chicago); Records of District Courts of the United States, Record Group 21; National Archives and Records Administration-Great Lakes Region (Chicago); See also “Examination of Lee Orean Smith,” Series 8, Folder 11, Item 1, 1:27-29, The Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix D. 84“Blues Are Blues, Court Decrees, And No One Wins”; “Blues and More Blues Go Blooey in Music Suit”; “‘Blues are Blues, They Are’ Says Expert in ‘Blues’ Case”; “Jazz Band in Lobby and Jazz Testimony Get Nowhere.” For a discussion of all blues being alike, see “Nobody Wrote Those Livery Stable Blues”; “Jazz Band May Play in Court.” See Appendix D. 40 on “More Power Blues,” an earlier blues song supposedly composed by Lopez himself.

Lopez explained that “Livery Stable Blues” was a separate work because of a four-bar introduction, a descriptive interlude evoking the sounds of barnyard animals, and a metrical shift created by syncopated rhythm. Second, the defense sought to establish that

“Livery Stable Blues” was inherently formulaic, and thus a set of non-protectable ideas, except for the original elements Nunez and Lopez allegedly added. As Nunez explained,

“nobody wrote ‘The Livery Stable Blues.’ Naw. Nobody writes any of that stuff. I invented the pony cry in the ‘Blues,’ and LaRocca, he puts in the horse neigh. We was in the Schiller Café, rehearsin’, see? And I suggests that we take the 85 ‘More Power Blues’ and hash ‘em up a bit.’”

Given each party’s argument, the court found that the two pieces of sheet music were sufficiently similar. However, the case was dismissed by Judge Carpenter:

“I am inclined to take the view of Professor Slap White in this case, that it is an old negro melody, that it has been known for a great many years. . . . The finding of the Court is therefore that neither Mr. LaRocca and his associates nor Mr. Nunez and his associates conceived the idea of this melody. . .”86

As a result, “Livery Stable Blues” was placed in the public domain because the song was deemed to be unoriginal work derived from a “negro spiritual from years ago.”87 A headline from October 12th in the Chicago Daily News paraphrased the decision:

“Nobody Wrote Those Livery Stable Blues.”88

In the process of determining whether there was copying in fact between the two pieces of sheet music, Hart examined whether “Livery Stable Blues” was originally composed or derived from a preexistent melody. Originality was required

85“Nobody Wrote Those ‘Livery Stable Blues’.” See Appendix D. 86“Court Findings,” Series 8, Folder 2, Item 4, 2-3, The Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. Judge Carpenter also made an implicit argument about what constitutes “music” that has potent ramifications for the definition of jazz, however it is a tangential topic to the present discussion. See Appendix C. 87”Court Findings,” Hart et al. v. Graham, 2, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix C. 88“Nobody Wrote Those ‘Livery Stable Blues’,” See Appendix D. 41 in order for the author to receive federal copyright protection. This requirement challenged the court to identify the author, evaluate his relationship to the work in question, and determine equitable ownership rights appropriation for that work. In the process of examination, the actors in Hart projected conceptual models for interpreting each of these components. The case proceedings reveal cultural friction between the court and jazz musicians based on contrasting conceptions of authorship.

The initial question posed in Hart was whether the two pieces of sheet music were sufficiently similar to constitute infringement. This question was answered easily enough based on evidentiary analysis by expert witnesses who unanimously found the two pieces of sheet music to be functionally identical.89 As a result, the court proceeded to the second basic question, namely, whether defendant Roger

Graham (via Nunez and Lopez) had access to “Livery Stable Blues” through performances and a recording of the song made by the ODJB. The burden of proof fell on the plaintiffs, Hart and the ODJB, to establish that Nunez and Lopez could have heard “Livery Stable Blues” and copied the song in the process of publishing their sheet music version with Graham.

Carpenter’s decision to put “Livery Stable Blues” in the public domain clashes, however, with a body of court evidence from jazz musicians, including both witness testimony and affidavits on behalf of both the plaintiffs and the defendant.

While Hart poses a question about originality, therefore, it also brings to light deeper

89Cf. Interrogatory testimonies from Theodore Morse; Mae Hill; ‘Slap’ White; Lee Orean Smith. See Appendix B. 42 questions about the nature of authorship within period jazz communities and its relationship to period copyright statute.90

Before delving further into the matter, one must establish a terminological framework for analysis. The author of a work of music can be said to carry out two social functions in relation to that work: creator and owner. These two functions do not necessarily imply that the author is an individual; authorship may entail a group of individuals or even an institution of some kind. Indeed, it is necessary to approach the notion of an author as pertaining less to an individualized personhood than to an individualized set of functions relative to the work.91

As creator, the author originates the work through independent generation.

That is, mere duplication of a preexistent work does not constitute creation; there must be sufficient variation, if not complete novelty, in order to meet the criterion of an independent work such that it will be protectable by law. In the context of establishing property rights, a work is ultimately to be considered as the object of the creator’s labor.92 While in common parlance, the concept of an author is often associated with literary works, an author in legal parlance may create any tangible or intangible work, as in a chair or a song. Thus, the author as creator and the work are co-dependent, each requiring the other for its existence.

As owner, the author may or may not stake claim to the work. For this to happen, the work may be considered to be property, an object of appropriation that is

90“Authorship and originality, for copyright purposes, are questions of fact and are in effect one question.” Arthur Weil, American Copyright Law with Especial Reference to the Present United States Copyright Act (Chicago: Callaghan, 1917), 394. Weil cites Byrne v. The Statist Co., (1914) 1K.B. 622. 91The nature and identity of the work will be discussed further in Chapter 4. 92Based on the Lockean inalienable right to property, the “unique individual who creates something original … is entitled to reap a profit from those labors.” Cf. Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge: Harvard University Press, 1993), 2. 43 constructed, although not necessarily controlled, by the author. In one sense, the author appropriates the work through the act of taking it to be his own by what I shall call moral claim, thereby limiting others’ access to the work. In another sense, as in the case of legal systems subsuming an established set of property rights, the work is an object upon which a bundle of legal property rights may be bestowed. In this second sense, the author may be endowed with legal right over the work, or moral claim, further protected by this legal bundle of property rights. The conceptual leap from work to property is small in the case of tangible works that take the form of physical property. For works, such as literary or musical compositions, that are essentially reproducible, however, the tangibility of the work is not easily contained and thus the bundle of rights associated with it as property is necessarily different. As a whole, such intangible works are called intellectual property.

As a legal practice of economic and creative control over intellectual property, copyright may be used to protect the author’s ownership rights over the intangible work. American copyright law aims to protect works as intangible entities, but does so by requiring a priori that the work be both original and fixed in some tangible medium, like printed sheet music, such that the work is unique and reliably reproducible.93 In concept, copyright entails a bundle of rights, including “the right to use; the right to exclude others from use and possession; and the power to transfer the

93The foundation for copyright is in the Article I, Section of the Constitution: “The Congress shall have the power…to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” and the First Amendment: “Congress shall make no law… abridging the freedom of speech, or of the press…” Given incentive theory, copyright is intended to protect the economic rights of the creator by granting limited monopolies over works and at the same time to promote the continual free exchange of creative ideas by limiting the term of that economic control and the maintenance of a dynamic public domain. See also Edward Samuels, The Illustrated Story of Copyright (New York: St Martin’s, 2000), 127. 44 owned object as a gift, by sale or bequest.”94 While these rights refer to the owner’s control over the work, they are in fact relational rights, or rights between people with respect to works, not between people and works.95 The copyright holder as owner has the privilege to use, or not use, the protected work, and to exclude other individuals from using the work. He or she also has the power to transfer the rights to another person.96 Without this transfer of rights, the tangible expression of the work may still be transmitted between individuals, but only as a matter of the copyright holder allowing specific use of the work without transferring copyright of that work. Absent tangible proof of a fixed and original expression, the work remains an idea, which is considered unprotectable.

Not all created works are protected by copyright. The presence of a public domain, or a cache of works freely available to everyone at no legal penalty, adds another dimension to the already intricate meaning of originality for the author as creator and as owner. Originality does not necessarily refer to the first generation of an idea, or even the novelty of that idea, but rather to a sufficient showing of individual creation. The development of new ideas out of preexistent ones involves multiple moments of origin along the path from received ideas to original new work.

Copyright law relies on common-law decisions in order to determine whether a purportedly new work is substantially original to merit protection. This originality is dependent on the ideas and creative process that define the author as creator.

Copyright appropriation may in some cases intersect with the author’s moral claim to own and control the work so that the author simply receives copyright over

94Lior Zenner, The Idea of Authorship in Copyright (Burlington: Ashgate, 2007), 55. 95Zenner, The Idea of Authorship in Copyright, 46. 96Zenner, The Idea of Authorship in Copyright, 63. 45 the work by virtue of its being the fruit of his or her creative labor. In practice, however, the appropriation of copyright can be complex. Subtle variability within the function of the author as creator has a profound impact on the identity of the musical work, and in turn, the ways in which ownership functions for the author. Processes pf

American popular music at the turn of the twentieth century allows for alternative authorship models that, according to the circumstance and the legal interpretation, can either reinforce or erode a sense of authorship, and thus ownership, over musical works.

The framework that corresponds to the statutory structure of copyright law involves the author as sole creator of a tangible and original work. According to this model, the author is initial creator and owner of the work, attributed by moral claim and reinforced by successful copyright registration. The work itself is non- controversially viewed as a discrete, original entity that is fixed through its expression in a tangible medium. This tangibility provides a controllable evidentiary basis for establishing the boundaries of the work, and thus the work as authorial property.

Following this model, the American copyright system provides adequate protection to certain musical works and the rights of their authors. For example,

Victor Herbert and “Sweethearts,” from the comic opera with the same title, demonstrate the relationship between author and work within the American copyright system.97 Herbert successfully obtained copyright for both the opera and the song, which was marketed separately on sheet music, establishing ownership of the song and the bundle of rights associated with copyright. According to legend, in 1915,

97Herbert worked with Harry B. Smith, Robert B. Smith and Fred de Gresac Maurel on the opera as a whole. The case regarded public performance of the music specifically, so Herbert may be considered sole author even though he was one contributor to a joint authorship situation. 46

Herbert heard “Sweethearts” performed at Shanley’s, a well known restaurant on

Broadway in New York City. Outraged that his rights to exclusive public performance for profit were infringed upon by the restaurant, Herbert filed suit against Shanley Company for copyright infringement. The resulting landmark case,

Herbert v. Shanley Co., moved through the American court system to the Supreme

Court where the decision to deny injunction against Shanley was reversed. Justice

Holmes found the performance to be in public and for profit, without permission from

Herbert, which “might compete with and even destroy the success of the monopoly that the law intends [Herbert] to have.”98

Herbert’s “Sweethearts” serve as an ideal example of the sole authorship model, where there is an author, who creates a piece, claiming ownership and obtaining legal protection through copyright registration. The author is identifiable, the contribution known, and the resultant work captured in a tangible medium such that the author’s ownership of the idea it supposedly expresses may be legally protectable.

Aside from established copyright law and authorship models that represent it, there can be a complicated reality to the creation of works, however, that renders the concept of sole authorship problematic. The lack of an identifiable creator, or the abundance of creators each of whom contributes to a work but none of whom claims moral claim to the work, causes a problem for rights appropriation as can the lack of any identifiably original, tangible work. Nevertheless, there are alternative models that represent the author’s moral claims as recognized within jazz communities.

98Decision, 242 US 591 (1917) in Edward N. Waters, Victor Herbert: A Life in Music (New York: Macmillan, 1955), 454f. 47

One solution is to propose an alternative authorship model that redefines the author and the work based on these circumstances. Jason Toynbee’s social authorship model establishes that an author is

“an agent who produces significant symbolic difference, or difference which matters in a particular taste community. Typically such difference will be the product of a small creative act, one which results in slight change to an existing text structure or performance code.”99

This author concept assumes “limited originality”100 in generating a new work not based on his own imaginative “internal resources” but rather through the “selection, combination, and revoicing of what is already there.”101 This model does not place limits on the extent to which there is manipulated or material from “internal resources,” but rather assumes that authors function in cultural context, with an accumulating cache of symbolic cultural resources, similar to the public domain.102

As a result, an author may claim ownership of resultant work, despite the fact that the pre-existent materials used in the work render the work too substantially dependent on preexistent material to meet legal originality standards. This creates a low standard for originality of the work, allowing almost any work to be protectable and thus weakens the ability of the author to police access to his work. At the same time, the social authorship model recognizes a culture of continuous invention and revision that increases the dynamic nature of the cultural cache or public domain.

99Jason Toynbee, “Creating Problems: Social Authorship, Copyright, and the Production of Culture,” ed. David Hesmondhalgh, Pavis Centre for Social and Cultural Research (Milton Keynes: Open University, 2001), 8. 100Toynbee, “Creating Problems,” 9. 101Toynbee, “Creating Problems,” 9. 102Toynbee, “Creating Problems,” 9. Here, Toynbee invokes Bourdieu’s concept of “field of works.” 48

The social authorship model aptly represents the American jazz tradition to which a number of jazz standards belong, including both “Livery Stable Blues” and

“Tiger Rag,” another song to which the ODJB holds copyright. During their brief tenure with Aeolian in 1917 while in litigation with Victor, the ODJB recorded “Tiger

Rag” on the B-side of Aeolian B-1206. The band promptly published sheet music for the song with Leo Feist and copyrighted the song, listing Nick LaRocca as author.

Despite LaRocca’s claim, the actual authorship of the song is hotly contested. No fewer than five musicians staked claim the song, most famously Jelly Roll Morton.103

Given the limited evidentiary basis and the nature of oral tradition, it is impossible to determine definitively which person or people might have created

“Tiger Rag,” what preexistent and novel material make up the song, which necessarily complicates identifying originality and authorship. Laine’s “Reliance” bands were a training ground for numerous New Orleans jazz musicians, including

LaRocca and other members of the ODJB, along with Nunez, Lopez, and Georges

Bacquet. Laine’s open rehearsal structure, and the exploratory method by which young jazz players learned their repertoire encouraged a free exchange of musical ideas. “Tiger Rag” may have been passed around Laine’s musical circle as it is known today or in some alternate variation that was subsequently personalized by different musicians. Thus, LaRocca may have assumed the song to be his own even when he learned an earlier version from another musician. It is no less plausible that

103In a 1938 interview, Morton claimed the song was derived from an old unknown quadrille. Cf. Rudi Blesh, Shining Trumpets: A History of Jazz, 2nd ed. New York: Knopf, 1958), 38; Schuller, Early Jazz, 139; For more information, cf. Vincenzo Caporaletti, Jelly Roll Morton, la Old Quadrille e Tiger Rag (Lbreria Musicale Italiana, 2011). 49

Jelly Roll himself composed or decisively adapted the song, which in turn influenced

Laine’s bands or vice versa.

Every scenario, and any other proposed creation story for “Tiger Rag” that has been recorded is compaitible with the social authorship model. For Laine’s band, musicians exchanged musical ideas freely and create their own musical works from this communal collection. For Jelly Roll Morton, the preexistent material is subject to his creative invention, resulting not in a new interpretation of the music but rather an entirely new musical work. Despite the fact that numerous people are involved in the composition process, each contributing musical ideas and staking claim to owning the song, only the ODJB could protect their claim with copyright. Whether or not the

ODJB were the actual creators, or their music was substantially original in comparison to the communal cache of musical ideas from which “Tiger Rag” may have been derived, did not matter so much as that the ODJB were the first group to legally express the work in tangible form and gain copyright registration for it.

Since then, “Tiger Rag” has enjoyed a long history of covers, including those famously made by Louis Armstrong and Art Tatum. Although the ODJB staked claim to the song and gained copyright over it, the song itself was in effect treated as a communal work to be performed by jazz musicians with what would be considered in legal terms to be a relatively low threshold for originality. Thus, despite the royalties paid the ODJB when “Tiger Rag” sheet music was purchased, the song became part of the jazz repertory as a set of preexistent material from which new musical works may be derived. The same may be said of any work that entered the

50 communal repertory, where a musician may draw on that material as the basis for new improvisations, arrangements, and interpretations.

There are inherent problems between the social authorship model and the copyright system. As the “Tiger Rag” case demonstrates, numerous authors may stake claim to a given work, all of whom are members of the same community who had access to the same musical ideas. In the absence of a fixed evidentiary basis for the work, there is no objective way to determine which alleged author first created the musical ideas, or even drew together the ideas from the communal cache. This informs the problem of transmission discussed further in the following chapter: that a person may claim authorship when in fact he or she did not create the work, or claims protection over a new work based solely on communal material that is provisionally owned, morally and/or legally, by other creators.

A second alternative to sole authorship is what could be called the collective authorship model,104 according to which, in lieu of a single creator, society in a broader sense is understood to contribute to a work, interpretation, addition, and manipulation through space and time. While a single person may ultimately claim the work as his or her own by imposing his or her own experiences on it, collective authorship significantly reduces the ability of the generative creator to stake claim to his or her property. Thus, collective authorship renders the creator as a faceless contributor and the author as a non-individual, thus making the author an unquantifiable figure that may continually change the musical work over time.

104This model draws from Zenner’s concepts for public authorship. See Zenner, The Idea of Authorship in Copyright, 21. 51

The collective authorship model fosters a rich public domain collection of works, even more plentiful than the communal cache of the social authorship model.

It recognizes the agency of each member of a community to impose his or her experiences on the work and thus participate in the continuous development of the work, rather than limiting the work to a tangible, fixed expression. The entire community could be said to own the creation since they have all contributed to its existence.

A third alternative to the sole authorship model, finally, is what may be called the collaborative authorship model, which brings together legal specificity of the author and owner with the socially contributory reality of musical compositions.

Rather than locating the author as a single, knowable creator who generates the original work to which he stakes moral claim of authorship, creation is seen as a process of influences among authors and other contributors. Drawing on the social authorship model, collaborative authorship recognizes variations on preexistent works may be considered new based on a relatively low legal threshold of originality. In this way, “the versions are models for realizing the piece; infinite possibilities surrounding the core of features that comprise its essence.”105 The parent work remains protectable and while the creator still maintains a sense of ownership over the work, he tolerates relatively open use of his work provided the musician did not play it exactly the same, or “note for note,”106 which in turn produces subsequently protectable, but closely related works. Collaborative authorship diverges from social authorship in that it recognizes the inherently multi-voiced process of creation.

105Paul Berliner, Thinking in Jazz: the Infinite Art of Improvisation (Chicago: University of Chicago Press, 1994), 88. 106Berliner, Thinking in Jazz, 101. 52

Although ultimately there is one author, there are a number of contributors that add to the author’s work but do not claim authorship themselves.

The ODJB’s claim regarding the compositional process for “Livery Stable

Blues” provide an elegant example of the collaborative authorship model in this sense. Although LaRocca claimed authorship for the song, as well as the Lopez-

Nunez duo during Hart, composition stories for the song involve collaboration from several musicians. According to both parties’ creation stories, “Livery Stable Blues” was allegedly introduced to the ODJB during a rehearsal and performance at the

Schiller Café in 1916. According to LaRocca, the song was born from an improvisation session with Jules Cassard in New Orleans in 1914. While certain elements like fills and ornamentation were left to each performer’s discretion,

LaRocca organized a set of “gutbucket” calls to imitate various barnyard animals after a fortuitous prank played on the “skylarking” dancer.

In contrast, the Lopez-Nunez version of the compositional process for “Livery

Stable Blues” emphasizes more of a social authorship model where they modified formulaic elements of the song, claiming that “nobody wrote ‘The Livery Stable

Blues.’” 107 Nunez and Lopez establish component parts of the song as pre-existent, thus not created. The song was said to have been derived from a preexistent tune,

“More Power Blues,” written by Lopez, with minor adjustments and the addition of animal sounds on Nunez’s part. As one example, Lopez testified that “Livery Stable

Blues” contained a “different rhythm” rooted in a shift in syncopation relative to its alleged predecessor, “More Power Blues”:

107“Nobody Wrote Those Livery Stable Blues.” See Appendix D. 53

BURKAN: Syncopated time? LOPEZ: Yes, sir. BURKAN: How does it differ from “Livery Stable Blues”? LOPEZ: In no way, only they have an introduction to it, and they have got an interlude as I said before, made descriptive. BURKAN: You said it had an interlude played in an odd way, what do you mean by that? LOPEZ: It was an odd strain. It was a strain something out of the ordinary. BURKAN: What do you mean by that? LOPEZ: It was syncopated in a different way. BURKAN: How does the syncopation of this number differ from the other rag time numbers now on the market? LOPEZ: It is a different rhythm in certain spots.108

While Lopez is not as specific, his reference to the different rhythm in “certain spots” indicated a new metrical feature that informed “Livery Stable Blues.”

While these contrasting claims to the song could have been settled within the collaborative setting of the New Orleans jazz community, the fact that the musicians brought the issue to litigation necessarily brings in a legal position on the very same questions. The Hart court responded to the authorship issue by applying concepts of the author as sole creator. As a result, three authorship models were forced to converge in court, where the sole authorship model appropriate to period copyright law held ultimate jurisdiction.

In 1917 American copyright law, the author was the creator and thus owner by inalienable right. “An author …is ‘he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.’—Worcester.”109 This includes “authors in ordinary speech, that is, the makers of literary or quasi-literary

108Raymond Lopez, Interrogatory Transcript, 8-10 October 2, 1917, Hart et al. v. Graham (N.D. Ill. 1917), Case File E914; U.S. District Court for the Northern District of Illinois, Eastern Division (Chicago); Records of District Courts of the United States, Record Group 21; National Archives and Records Administration-Great Lakes Region (Chicago). Ironically, the ODJB would use a substantially similar version of “More Power Blues” in their copyrighted version “Mournin’ Blues,” however the supposed infringement was never mentioned. See Appendix B. 109Burrows-Giles Lithographic Co. v. Sarony, 111 US 58, 28 L. ed. 351. Cited in Weil, American Copyright Law with Especial Reference to the Present United States Copyright Act, 29. 54 works, but also dramatists, sculptors, painters, musicians, architects (probably), modelers, and generally, creators of all copyrightable works in whatever media expressed or embodied.”110 At common law, the author’s right to appropriate his work as his own, in addition to the underlying philosophy of inalienable rights to property, was established through case law. These rights included:

“…the sole, exclusive interest, use and control. The right to its name, to control, or prevent publication. The right of private exhibition, for criticism or otherwise, reading, representation, and restricted circulation; to copy and to permit others to copy and to give away a copy; to translate or dramatize the work; to print without publication, to make qualified distribution. The right to make the first publication. The right to sell and assign her interest, either absolutely or conditionally, with or without qualification, imitation or restriction, territorial or otherwise, by oral or written transfer…”111

This established a connection based on common law between the author as creator and the author as owner of his work. Upon registration, the copyright holder was entitled to all the exclusive rights outlined in the copyright act. Thus, for the purposes of copyright, an author is the original proprietor of a work.

Authorship was not necessarily confined to a single individual, but was rather:

“…a question of fact and that where more than one person contributes to the copyrightable result, he who was the master mind of the group of producers, that is to say, who preponderated mentally in the creation and completion of the work, in its final form, is its author in that form. “Cases may well exist where there may be several or joint authors and it is not believed that an exact equality of contributive thought or effort is required in such cases, but merely that the contribution of each be furnished, primarily, according to a joint design previously conceived, be substantial…”112

110 Weil, American Copyright Law with Especial Reference to the Present United States Copyright Act, 168. Based on §430 of 1909 copyright statute. 111Weil, American Copyright Law with Especial Reference to the Present United States Copyright Act, 113, from Harper Bros. v. M.A. Donohue & Co., 144 F. 491, 492. 112Weil, American Copyright Law with Especial Reference to the Present United States Copyright Act, 165f. 55

As a result, copyright protected the interests of the primary author as sole owner, and in certain circumstances all contributors to the final product. In this way, the ODJB could all have contributed to the composition of “Livery Stable Blues,” while Nick

LaRocca as mastermind could claim authorship and thus hold copyright over the song as it appeared on the sheet music (in this case, “Barnyard Blues” as published by Leo

Feist).

In accordance with 1909 statute, an original work need not be completely new, but could be a composite arrangement of material, or a rearrangement of something already produced. The author in these situations merely needed to be the individual who compiled the material, his idea being the manner of organization. The only stipulation was that the composite work needed only to be sufficiently new and creative to merit copyright protection, which was left to the discretion of copyright office or the court in civil suits.

This authorship model underpins the legal professionals’ actions in the case.

The bill of complaint and subsequent responses indicated the conditions for copyright, such as citizenship and residence for the purpose of establishing jurisdiction. They also provide the legal conditions for authorship necessary for copyright, including both creation and ownership. The original Bill of Complaint establishes authorship solely with LaRocca:

“…in or about the year 1914 the complainant, Dominic James LaRocca, a citizen of the United States, wrote, composed and originated the music of a certain musical composition to which was given the title ‘Barn Yard Blues’…”113

113Bill of Complaint, 1-2. July 17, 1917, Hart et al. v. Graham (N.D. Ill. 1917), Case File E914; U.S. District Court for the Northern District of Illinois, Eastern Division (Chicago); Records of District Courts of the United States, Record Group 21; National Archives and Records Administration-Great Lakes Region (Chicago). See Appendix B. 56

The bill reiterated that “said musical composition was the original conception and invention of the said Dominic James LaRocca.”114 This explicitly established both authorship as creator and owner of “Barn Yard Blues.” The response used the same language to deny this claim, stating that “Nunez, Lopez, together with Bert Kelly and

Guy Shrigley claim to be the owners and composers and originators of said composition known as ‘Barn Yard Blues. . . . ’”115 The defendant’s response acknowledged this joint authorship, including Shrigley, who served primarily as transcriber for Lopez, as part of the compositional process to the published sheet music.

Carpenter’s decision finalized the court’s approach to the case with a sole creation authorship model. The judge viewed preexistent material as belonging to unidentified creator, not the musicians who compiled it:

“I am inclined to take the view of Professor Slap White in this case, that it is an old negro melody, that it has been known for a great many years. . . . “The finding of the Court is therefore that neither Mr. LaRocca and his associates nor Mr. Nunez and his associates conceived the idea of this melody. They were a strolling band of players and like –take the Hungarian orchestra- accomplished the result and not the original music itself, and I venture to say that no living human being could listen to that result on the phonograph and discover anything musical in it. . . .”116

114Bill of Complaint, 2, Hart et al. v. Graham. See Appendix B. 115Answer to Bill of Complaint, August 15, 1917, 2. Hart et al. v. Graham (N.D. Ill. 1917), Case File E914; U.S. District Court for the Northern District of Illinois, Eastern Division (Chicago); Records of District Courts of the United States, Record Group 21; National Archives and Records Administration-Great Lakes Region (Chicago). See Appendix B. 116“Court Findings,” Hart et al. v. Graham, 2-3, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix C. Carpenter makes an implicit argument about what constitutes “music” that has potent ramifications for the definition of jazz, but it is tangential to the present discussion. 57

Consequently, “Livery Stable Blues” was placed into the public domain because there was nothing deemed original to the music, not even the arrangement of preexistent musical material.

In contrast to the legal professionals, the jazz musicians’ examinations reflect an understanding of author as sole creator and owner, blended with elements of social authorship, to create a more collaborative model. LaRocca described his compositional process for “Livery Stable Blues” as being of his own creation, but he acknowledges the contributions of other musicians. According to his story, LaRocca supposedly met with Jules Cassard, who played piano while LaRocca improvised on cornet, when the melody for “Livery Stable Blues” was born. Cassard confirmed this story, verifying that he acted as a non-authorial co-creator for the composition. From there, LaRocca taught Stein’s band and the ODJB the song, adding the infamous gutbucket animal calls later.

Other witness testimony from jazz musicians reinforces the idea of a composition with numerous contributors but only one author. Larry Shields described his experience with Tom Brown’s band, in which Shields played before replacing Nunez in the ODJB. In Munns’s cross-deposition, Shields explained that anyone in the band could introduce a song:

MUNNS: In this particular band, in your present band, Mr. LaRocca gives you the tune. I want to know who gave you the tunes while you were at Brown’s Band[.]117 SHIELDS: They played it over and I played it[.] MUNNS: Who is “they”? SHIELDs: The whole band. No one in particular. One fellow would come on the job with a new song and he played it off and we followed.118

117In this passage, the transcript uses question marks in place of periods. 118Lawrence Shields, Interrogatory Transcript, 5-6, October 2, 1917, Hart et al. v. Graham (N.D. Ill. 1917), Case File E914; U.S. District Court for the Northern District of Illinois, Eastern Division 58

Shields’s vague response later in the deposition suggests a similar method of learning songs in the ODJB, except in the case of “Livery Stable Blues” (which Shields refers to as “Barnyard Blues”) when LaRocca taught the song and each instrumental part himself. While each band member could introduce a new song, Shields did not specify whether or not that member was the author of the song. This is partially a matter of the way in which Munns phrased the question, suggesting that songs were

“given” to the band, not “composed” or “written” by a certain individual. Shields placed emphasis on the musician who taught him the song, not from where or whom it originated.

During Burkan’s deposition, drummer Tony Sbarbaro described hearing the band at Schiller’s and asked Nunez during a break “whose wonderful brains composed the piece and he pointed out the cornet player, Mr. LaRocca.”119 Sbarbaro contrasted Shield’s approach that emphasized pedagogical origin and the work as subject to group composition, not authorship as individual composer. Both testimonies show a sense of author/teacher as individual and the work as discrete.

Ragas described a similar situation to the rest of the band, testifying that he first heard “Livery Stable Blues” in Chicago while playing in Stein’s band. LaRocca was the first to play the melody, who played from memory, claiming it was an “old

(Chicago); Records of District Courts of the United States, Record Group 21; National Archives and Records Administration-Great Lakes Region (Chicago). See Also “Deposition of Lawrence Shields,” October 2, 1917, Transcript 5-6, Series 8, Folder 7, Item 1, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix B. 119 Anthony Sbarbaro, Interrogatory Transcript, 4, October 2, 1917, Hart et al. v. Graham (N.D. Ill. 1917), Case File E914; U.S. District Court for the Northern District of Illinois, Eastern Division (Chicago); Records of District Courts of the United States, Record Group 21; National Archives and Records Administration-Great Lakes Region (Chicago). See “Deposition of Anthony Sbarbaro,” 4, Series 8, Folder 6, Item 1, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix B. 59 number of his.” As LaRocca played, Ragas sat at the piano, “and I [Ragas] made the accompaniment and he [LaRocca] told me exactly my part.”120 While “making” an accompaniment seems to mean creating an accompaniment, the fact that LaRocca told him “exactly” his part contradicts the first claim, alluding to a new conception of creation as at times distinct from authorship. Later in the deposition, Burkan asked

Ragas, “Did you contribute any part of this composition which is known as “Livery

Stable Blues” and which was subsequently known as Barnyard Blues?”121 to which

Ragas responded, “No, sir.” Ragas later confirmed Burkan’s question that no other band member contributed anything to the song that LaRocca played for him.

During Munns’s cross-deposition, Ragas’s testimony introduces a more peculiar element to conceptions of authorship. While his responses to the questions remained consistent that LaRocca was the author of the composition, acting as a musical mastermind during rehearsals by giving each band member a sense of what to play, the musicians were free to add “runs” as they pleased. Thus, the band members were able to deviate from LaRocca’s authorial instructions, contributing their own ideas to the composition.

MUNNS: Was the composition in question the same number the first time you played it, as the tenth day in your rehearsals? RAGAS: No, we played it just a little better. MUNNS: What do you mean better, better in unison as a band? RAGAS: No, the runs were better.

120Henry Ragas, Interrogatory Transcript, 8, October 2, 1917, Hart et al. v. Graham (N.D. Ill. 1917), Case File E914; U.S. District Court for the Northern District of Illinois, Eastern Division (Chicago); Records of District Courts of the United States, Record Group 21; National Archives and Records Administration-Great Lakes Region (Chicago); See also “Examination of Henry Ragas,” Series 8, Folder 5, Item 1, 8:23-25, The Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix B. 121Henry Ragas, Interrogatory Transcript, 8, October 2, 1917, Hart et al. v. Graham; 3, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. This entire section of Ragas’ testimony is underlined in blue pen, which is likely a de facto addition from LaRocca. See Appendix B. 60

MUNNS: Who made changes in those runs? RAGAS: Mr. LaRocca. MUNNS: Did Mr. LaRocca know how to make a change of the run on the cornet, clarinet, trombone and piano. RAGAS: No…. [Munns continues to ask Ragas if LaRocca played each instrument in turn, and Ragas responds no to each question]. MUNNS: How could he instruct the piano player or the trombone player if he didn’t play those instruments? RAGAS: He just hummed it to us. MUNNS: When he hummed it to you, he would give you an idea of what he wanted in the composition? RAGAS: Yes. MUNNS: Then you as a musician could put in what runs you thought he wanted? RAGAS: Yes. MUNNS: In other words, he would hum the parts to you and you as musicians would put them in for the various instruments which you played? RAGAS: Yes, sir.122

In this context, humming provided the general format of the song and each part, but assumed that carrying out that general conception was left to the individual nuance of the performer. In this situation, where there was an absence of a text either in written or aural media, the performance constituted the work itself.

According to Ragas, however, he “made up the accompaniment and he told me exactly my part.” This earlier explanation becomes unclear in light of Munns deposition. Ragas could have “made up the accompaniment,” in the sense of arranging the piano accompaniment against all the other band members, would have entailed Ragas playing counter melodies to LaRocca’s main melody. While this is plausible given the polyphonic idiom to which “Livery Stable Blues” belongs, this interpretation suggests that Sbarbaro was playing a counter melody as well, which is unlikely given that he was adding percussive effects and “keeping time.” However, it

122Henry Ragas, Interrogatory Transcript, 8, October 2, 1917, Hart et al. v. Graham; 8, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix B. 61 is possible that Ragas considered the drum part as separate from an accompaniment or a counter-melody.

Another interpretation of Ragas’s statement presumes that by incorporating the “runs,” Ragas “made up the accompaniment” in the sense that he invented it.

This also seems peculiar, given that LaRocca told Ragas “exactly what to play” but there was plenty of room for variation since LaRocca merely hummed the general idea. In either event, Ragas’ testimony reveals a flexible sense of authorship that deviates from a vision of the author as ultimate creator. In Ragas’s view, the author of the composition provided the band with the information they needed to perform the song, and any additions each band member made were merely a matter of performance practice.

Depositions from other band members correspond to Ragas’s statement that variation was a performative, not a compositional, action. Although Sbarbaro responded that he was not the “originator or creator of any composition,”123 he had suggested variations to songs, which was “nothing unusual”:

BURKAN: It is nothing unusual for a musician of your caliber to make variations or runs in the present composition, is it? SBARBARO: I don’t understand what composition you mean. BURKAN: Any composition other than the one in question? SBARBARO: Yes.124

In Edwards’ testimony, Burkan and Edwards discuss the “gutbucket” animal call interpolations at length. These sounds were creative in the sense they were idiomatic

123Anthony Sbarbaro, Interrogatory Transcript, 9, October 2, 1917, Hart et al. v. Graham; 9, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. LaRocca has de facto underlined this point. See Appendix B. 124Anthony Sbarbaro, Interrogatory Transcript, 9, October 2, 1917, Hart et al. v. Graham; 9, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA.. See Appendix B. 62 to each respective instrument. Based on gutbucket techniques, this would have been sufficient to establish co-authorship given the importance of these interpolations to establishing individual creativity. However, when Edwards was asked if he or any other band member made any contribution to “Livery Stable Blues,” Edwards responded that he, and they, did not.

The ODJB members argue that their contributions, however original, were purely performative and not creative, since they were suggested by LaRocca, and not substantial enough to indicate joint authorship as it was provided for in statutory law.

This qualification sheds light on the ODJB’s conception of authorship as detached, although not completely removed, from performance. It suggests that original, creative performance was critical to the identity of the musical work, but not necessary enough to function as creation and thus merit the rights of authorship.

Although the band members seem unanimously to reflect an author concept mostly in keeping with legal ideals, inconsistencies within the testimony seem to undermine the validity of the band’s claims. The ODJB had a clear, identifiable stake in the case: the bill of complaint established LaRocca as author of “Livery Stable

Blues” as the same song as “Barnyard Blues,” which LaRocca and the ODJB had successfully registered, so upholding this claim would result in receiving their portion of the damages from Graham and maintaining copyright control of the song. Thus, it would have been fortuitous for Edwards to excuse the suggestion of the animal call interpolations, which were considered the original defining feature of the song, as nothing substantial enough to be contributions much like Ragas’s deemphasized

63 variation runs. As a result, these examinations may be suspect as authoritative representatives of the band’s spontaneous conceptions of authorship.

One of the main points of the defense to the ODJB’s testimony was that

“Livery Stable Blues” was an adapted version of the preexistent song, “More Power

Blues.” Lopez’s courtroom testimony asserts that he and Nunez collaborated on the song, with Nunez adding the animal calls to Lopez’s preexistent melody purportedly from “More Power Blues.” In this circumstance, Lopez and Nunez were joint authors, drawing from part of a musical-cultural cache to which Lopez held moral claim. Setting aside the facts that Lopez’s testimony contradicts itself and radically conflicts with the ODJB’s origin story for the song,125 not only does Lopez’s testimony undermine application of the legal author concept, but it contradicts

Edwards’s claim that animal call interpolations were not grounds for joint authorship.

Nunez’s testimony disrupts both Lopez’s and the ODJB band members’ legal conformity. Journalistic paraphrasing aside, Nunez’s testimony carefully skirts any claim to original authorship, reflecting a different authorial paradigm: “they ain’t no originality about the livery stable piece except the animal calls in it. . . . It was just hashed over form ‘The More Power Blues,’ Ray Lopez and me fixed it up.”126 The definable characteristics of the song as a work were of little consequence other than as framework for individual or communal adaptation. Under these conditions, Lopez and Nunez were not authors of the song, but rather innovators “fixing up” a song by creating a derivative work. Lopez did not provide as much detail, but stated that he created the song while living in New Orleans and that everyone in Laine’s band,

125During Munn’s examination, Lopez states that Nunez added animal calls to the song, but during Burkan’s cross-examination, Lopez claims that he had never heard the animal calls interpolated before. 126”Court Soft Pedals Jazz Discord.” See Appendix D. 64 which accounted for almost every one of plaintiff and defendant musicians, knew the song and many songs like it. As such, Lopez established his moral claim over the song within the jazz community and thus sought to stake claim to his perceived legal rights over the same musical work. Through his testimony, Lopez in effect embraced the social authorship model.

Lopez and Nunez’s testimonies are reinforced by expert witnesses who explain the formulaic, preexistent nature of blues. Theodore Morse explained that

“there is a certain style of composition we call Blues”127 but denied that all blues songs have the same theme.128 ‘Slap’ White’s testimony reinforces this use of preexistent material that communally available for individual interpretation and reinvention through creative innovation. As paraphrased in the Chicago Daily

Tribune, “blues are a form of old plantation melody sung by southern Negroes long before the saxaphone[sic] and clarinet came into their own in the orchestral hybrids born in New Orleans. . .”129 Although he claimed that the majority of were composed by African Americans, there was no emphasis on sole creatorship. The fact that every blues is simultaneously different and the same demonstrated collaborative authorship within the blues and thus the overlapping emergent jazz community, where every blues contains similar features beneath its individual expression. ‘Slap’ White provided a decisive statement for the case decision and journalists: “Livery Stable

127Theodore Morse, Interrogatory Transcript, 4-5, October 2, 1917, Hart et al. v. Graham; 4:6-8, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix B. 128 Theodore Morse, Interrogatory Transcript, 4-5, October 2, 1917, Hart et al. v. Graham; 4:6-8, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix B. 129“Blues are Blues, Court Decrees, And No One Wins.” See Appendix D. 65

Blues” and “Barnyard Blues” are “different, but they’re both blues, and all blues are blues.”130

These stylistic features allegedly inherent to all blues songs established a creative climate based on originality through revision; that is, a creative climate in which a new song, like “Livery Stable Blues,” derived from a preexistent one, like

“More Power Blues,” would be typical. Thus, an author within the jazz community may stake moral claim over a song created completely from preexistent materials arranged in an original variant way, for which the standard for necessary variation is very low. However, Lambert’s testimony contradicts this line of reasoning, suggesting that the songs were entirely different:

MUNNS: Do you recollect playing a composition then known as “More Power Blues?” LAMBERT: I do. … MUNNS: How does that compare with the composition now known as “Livery Stable Blues”? LAMBERT: It doesn’t compare at all to my knowledge. MUNNS: Neither in harmony or in descriptive? LAMBERT: Neither way.131

Legal motivations aside, Lambert’s testimony has allusions to collaborative authorship when considered in conjunction with Lopez’s explanation. “More Power

Blues,” as very similar to “Livery Stable Blues,” when adapted with an introduction and animal call interpolations, becomes separate entity that was no longer comparable. The fact that the harmonies were very similar by music-theoretical standards does not negate the implications in Lambert’s statement that songs like

130Blues and More Blues go Blooey in Music Suit.” See Appendix D. 131William Lambert, Interrogatory Transcript, 7, October 6, 1917, Hart et al. v. Graham (N.D. Ill. 1917), Case File E914; U.S. District Court for the Northern District of Illinois, Eastern Division (Chicago); Records of District Courts of the United States, Record Group 21; National Archives and Records Administration-Great Lakes Region (Chicago). See Appendix B. 66

“More Power Blues” that were known as part of the accumulating community resources, when adapted, became new compositions in the eyes of the members of the community.

Ernie Erdman, the pianist at Schiller’s in March 1916 while Stein’s band played there, provides a slight deviation to the collaborative authorship scheme established by the jazz musicians, claiming joint authorship based on his alleged contribution to the song in order to gain legal rights to the song. Erdman claimed authorship to the title at bar and “some transaction relative to counting me in on the number” of the song, likely referring to composing the four-measure separate introduction, and thus claimed partial ownership of the song. He also suggested that

“all others concerned,” referring to the band members and potentially even Nunez and

Lopez, were “entitled to” their share of the profits before taking an affidavit for the case.132 Erdman’s claim to the title and the introduction was carried through

Burkan’s cross-examination of Lopez, used as a way to undermine Lopez’s claim to ownership. Whether or not Erdman’s claim was grounded, it reinforces the perception of collaborative contribution to a musical work.

As a whole, Hart shows the permeability among three of the proposed authorship models, one dependent on sole authorship and the other two on a process of communal contribution, either social authorship or collaborative authorship. The people involved with the case recognized author as creator and as owner of an original work founded in moral claim. Fundamentally, they maintain a relatively low legal threshold of originality, dependent on establishing sufficient independent

132Letter from Erdman to LaRocca Oct 2, 1917 in response to LaRocca’s Sept. 15 letter, Series 8 Folder 15, Item 6, Hogan Jazz Archive, Tulane University, New Orleans, LA. 67 variation drawn from preexistent material, not necessarily total novelty in a work.

However, the friction occurs in point at which original separates from derivative. In this way, jazz musicians account for fewer and subtler differences between songs as separate works than legal professionals. As a result, some songs morally claimable within the jazz community would be considered the same by copyright law.

The resulting friction in rights appropriation is aggravated by additional legal requirements for establishing originality, rooted in fixation via publication in 1917.

The court approached “Livery Stable Blues” as the original product of a sole author who creates and then must fix his creation in order to gain copyright privileges.

While jazz musicians approached the case with an interest toward the idea of a sole author, their explanations about the composition of “Livery Stable Blues” projects an authorship model more in tune with collaborative authorship. Multiple creators contributed to the work, which was the product of preexistent ideas and musical formulas but nonetheless original based on the contributions made by the group.

Each band member’s contribution may not constitute joint authorship, however, since these contributions may not be considered significant on their own in comparison to the efforts of the author.

Chapter 4: Lost in Transmission

Hart was as much a case about authorship as it was about the identity of a musical work. Since the originality of “Livery Stable Blues” was in question, both the compositional processes of the alleged authors and the song itself become integral objects for analysis. The identity of the song became an underlying issue to determining originality in the Hart court. As a copyright infringement suit, the focus in Hart was limited to equitable appropriation of the right to copy and distribute the song, in essence, its transmission. Like authorship, transmission of “Livery Stable

Blues” was another site of conceptual friction between period copyright law and the

New Orleans jazz community to which many band members and witnesses contributed.

Copyright entitles the author to a limited monopoly on making and distributing copies of his work as his own creative property. The law limits the federal protection afforded authors by establishing a finite duration to protection as well as placing requirements that constitute a protectable work. These legal boundaries do not limit the ways in which works may be transmitted. Rather, they only place limits on works for which the author seeks copyright protection.

In particular, the Hart court was subject to the 1909 copyright regime in which protection was predicated on a set of formalities, including publication, notice,

69 registration, and deposit. Publication for musical compositions referred to sheet music. The author could register his song and then was required to affix notice of copyright to each copy of the sheet music.133 Once this process was completed, two copies of the sheet music were to be deposited in the Copyright Office.134 Works like

“Livery Stable Blues,” transmitted outside of sheet music as part of oral tradition or on record, could receive copyright protection, however, without publication. This situation only applied to compositions, “not reproduced for sale,” where author must provide at least one copy of the work to the Copyright Office.135 Once published copies were produced, the author was responsible for providing these published copies to the Copyright Office.136

The legal framework supporting copyright points to underlying conceptual friction in Hart, rooted in the identity of the musical work. In the context of

American law, the musical work is intellectual property. Although the work itself may be intangible, in order to receive copyright protection, there must be tangible

133“That any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor. . .” Copyright Act Section 9, “Publication with notice initiates copyright,” 27-32. “Notice of copyright required by section nine of this act shall consist either of the word “Copyright” or the abbreviation “Copr.”, accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication.” Copyright Act, 1909, §18, 25-31. 134“…after copyright has been secured by publication of the work with the notice of copyright as provided in section nine of this Act, there shall be promptly deposited in the copyright office or in the mail addressed to the register of copyrights, Washington, District of Columbia, two complete copies of the best edition, thereof then published, which copies…” Copyright Act 1909 §12, 10-16. 135“That copyright may also be had of the works of an author of which copies are not reproduced for sale by the deposit, with claim of copyright, of one complete copy of such work if it be…a dramatic or musical composition…” Copyright Act 1909, §11, 40-44. 136“But the privilege of registration of copyright secured hereunder shall not exempt the copyright proprietor from the deposit of copies under sections twelve and thirteen of this Act where the work is later reproduced in copies for sale.” Copyright Act, 1909, §11, 5-9. 70 evidence of that work that represents it. In terms of copyright, which in essence provides legal control over transmission, the work resides in that tangible representation that may be exactly reproduced in court as evidence.

Where the work resides also has bearing on the ways in which the work may be transmitted. While there may be significant overlap among media in the features that are transmitted, each medium privileges certain features over others. For example, sheet music does not necessarily convey an entirely different set of features from oral transmission or recordings. While all three might convey the same harmonic progression, an inner voice not audible on a recording may be clarified on sheet music. Conversely, sheet music transmits only one realization of that progression that may have a more flexible existence in oral transmission. Without the means of notation, musical features such as timbre, inflection, and pitch-bending that are observable in oral transmission would be lost in written transmission.

Many musical works do not reside in sheet music. Early jazz songs like

“Livery Stable Blues” germinated from oral transmission, often before being notated in written sheet music. Within the context of the jazz community represented in Hart, for example, such oral transmission relied on mutually shared knowledge about the formulaic features of a given style. During his examination, Edwards retold a conversation between LaRocca and himself in which LaRocca referred to “Livery

Stable Blues” as a “blue number,” which had a given meaning within the community:

EDWARDS: I told him it would be a good stunt to put this horse whine in a number, and he said he had it in a number and I, of course, asked him what number it was, and he replied “A blue number.” I told him some time we might try it and it might prove a good number to us. 71

BURKAN: Has the term “blue number” a well defined meaning in the musical profession? EDWARDS: Yes. BURKAN: What does that term mean? EDWARDS: Fox-trot with a slow and lazy like yawning with no direct harmony, sort of freak harmony. BURKAN: And a number possessing those characteristics is defined as a “blue number” in the profession? EDWARDS: Yes.137

Edwards’s explanation vaguely describes attributes that constitute “a blues number,” including the dance rhythms and tempo of the song. The excerpt indicates that these features were well known among members of the jazz community. Similarly, Ray

Lopez’s testimony, which is equally as vague as Edwards’s testimony, described the

“nature” of “More Power Blues” as a “blues,” which it shares in common with

“Livery Stable Blues.”138

Thus, the features that identify orally transmitted songs, like “Livery Stable

Blues,” are prescriptive, at times formulaic, attributes that provide a broad framework from which musicians may create new works within a wide margin for indeterminate features. As a result, separate songs in the jazz tradition may often share similar features. The harmonic progressions of “Tiger Rag,” “Washington and Lee Swing,” and “Bill Bailey Won’t You Please Come Home,” for example, share the same

137Edwin B. Edwards, Interrogatory Transcript, 6, October 2, 1917, Hart et al. v. Graham (N.D. Ill. 1917), Case File E914; U.S. District Court for the Northern District of Illinois, Eastern Division (Chicago); Records of District Courts of the United States, Record Group 21; National Archives and Records Administration-Great Lakes Region (Chicago). See “Examination of Edwin B. Edwards,” 4, Series 8, Folder 3, Item 1, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. Edwards does not clarify the meaning of “no direct harmony, sort of freak harmony.” See Appendix B. 138Ray Lopez, Interrogatory Transcript, 5, October 2, 1917, Hart et al. v. Graham. See Appendix B. 72 harmonic progression and formal structure. More indeterminate features of the songs not only differentiate them from one another, but also from different versions of the same song. Art Tatum’s version of “Tiger Rag,” for example, is not the same “Tiger

Rag” as any of the ODJB’s versions, however they share determinate features, i.e. harmonic and formal structure, to a significant extent.

“Livery Stable Blues” existed through oral transmission before it was ever captured on record or sheet music. As such, the song as a musical work was not dependent on written notation to exist or to be transmitted. In order to receive federal protection, these pieces would have had to comply with copyright statute, to which the series of copyright registrations for “Barnyard Blues” and “Livery Stable Blues” attest. Thus, the nature of the musical work as it is legally recognized is in part dependent on the means by which it is transmitted.

Hart exclusively dealt with two pieces of sheet music as written renderings of allegedly the same song. That “Livery Stable Blues” was part of oral transmission was a factor only in establishing compositional process and access. Its existence in oral transmission, as well as the song captured on record, was a moot point for determining whether there was copying in fact between “Barnyard Blues” and

“Livery Stable Blues” sheet music. Instead, the point of contention between legal professionals and jazz musicians regarded different transmission traditions, since various means of representing “Livery Stable Blues” provided separate criteria for defining the song as an original work of authorship. As Hart demonstrates, the

73 definable features of “Livery Stable Blues” in oral transmission do not necessarily demonstrate originality in the eyes of the court focused on written transmission.

In keeping with both copyright statute and the bill of complaint regarding two pieces of sheet music, the court assumed that the musical work was fully represented through written notation. Relying on expert witnesses, the court sought the help of musicians from composers to song “pluggers” to analyze the sheet music based on melody, harmony, and rhythm, making note-for-note comparisons between “Barnyard

Blues” and “Livery Stable Blues.” These comparisons were done according to the two printed sheet music versions.

Feist composer Theodore Morse’s comparison suggested that the two songs shared similar stylistic features to the extent that the songs were virtually interchangeable, particularly in the four-measure introduction:

“[The] harmony, rhythm, and only slightly changed in melody in the third bar. The first strain is practically identical and also the second and third strain. I think that those two numbers could be played at the same time and no difference would be noted that they were different compositions.”139

In Figure 3-1, the first four bars of “Livery Stable Blues” and “Barnyard Blues” are juxtaposed. While harmonically both pieces of sheet music are in E flat major, the arrangement of the harmony and the rhythmic expression of the music is different.

139Theodore Morse, Interrogatory Transcript, 4:6-8, October 2, 1917, Hart et al. v. Graham; 4:6-8, The Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. 74

Figure 3-1: Introduction140

In the first full bar, the tenor voice in “Livery Stable Blues” appears with octave doubling in “Barnyard Blues,” while Livery Stable Blues pounds out a bass root note through the entire measure. The alto voices in this measure also diverge, with a third ascent before the descending line in “Livery Stable Blues” that is just a descent in “Barnyard Blues.” Octave doubling appears in “Barnyard Blues,” this time between the top two voices. While the same notes are struck in both sheet music editions, the inner treble voices sound for a half note in “Livery Stable Blues” but merely an eighth note in “Barnyard Blues” before emphasizing the top voice.

However, this discrepancy does not cause significant divergence from the foundational harmony shared by the two songs.

The third full measure, to which Morse draws particular attention, is particularly noteworthy because there is a slight melodic difference that has metrical implications. In comparison, “Livery Stable Blues” contains syncopated embellishments in the top voice that are absent in “Barnyard Blues.” This feature evokes the uneven “swing” rhythm heard on record. The interior voices are also

140Ray Lopez and Alcide Nunez, Livery Stable Blues (Roger Graham Publishing, 1917). 75 slightly different in this measure. As Morse indicated, the differences between the two pieces of sheet music are present, but subtle.

Lee Orean Smith’s comparison of the two pieces of sheet music finds that the

“theoretical structure is practically the same, both as to melody, not so much identical as to harmony, but the rhythmical feeling is practically identical, therefore the meter is conceived in the same strain.”141 Likewise, Raymond Hubbell noted in his deposition that “What difference there is [in the melody] is technical.” Like Smith,

Hubbell addressed meter in the two pieces of sheet music, where “one is written in what we call four-four time in music, and the other is written a-la-breve [sic].”142 For

Hubbell, the metrical difference was technical and a matter of “the scheme of the notation,”143 such that the two pieces of sheet music were still identical despite the discrepancies.

As opposed to the expert witnesses, jazz musicians dismissed determinate features that were not necessarily bound by notation in sheet music. Features like harmony and formal structure were treated as formulaic blueprints common among many songs. Members of the ODJB described “Livery Stable Blues” as a “blues number” or a “blues song,” which assumed a certain set of formulaic characteristics,

141Lee Orean Smith, Interrogatory Transcript, 1, October 2, 1917, Hart et al. v. Graham; 1, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix B. Smith’s testimony continues on through a more in depth comparison by “strain.” 142Raymond Hubbell, Interrogatory Transcript, October 2, 1917, 1-2, Hart et al. v. Graham (N.D. Ill. 1917), Case File E914; U.S. District Court for the Northern District of Illinois, Eastern Division (Chicago); Records of District Courts of the United States, Record Group 21; National Archives and Records Administration-Great Lakes Region (Chicago). See “Examination of Raymond Hubbell,” 4, Series 8, Folder 9, Item 1, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix B. 143Raymond Hubbell, Interrogatory Transcript, October 2, 1917, 2, Hart et al. v. Graham; 2, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix B. 76 such as a twelve-measure formal structure typified by harmonic motion between tonic, subdominant, and dominant.144 Lopez and Nunez provide similar testimony, noting the similarity of “Livery Stable Blues” to “More Power Blues.” Instead, jazz musicians focus on innovations to identify “Livery Stable Blues,” such as such as ornaments and melodic runs, which are compatible with both Toynbees “social authorship” and my proposed “collaborative authorship” models.

This testimony is in keeping with the original transmission of “Livery Stable

Blues.” The emphasis on formulas is typical of oral transmission.145 In this way, the jazz musicians could conceive of the originality of “Livery Stable Blues,” and indeed of the song altogether, without regard to sheet music. For example, during Burkan’s cross-examination of Lopez, Burkan established that Lopez could not write or read musical notation while discussing Shrigley’s transcription of “More Power Blues”:

BURKAN: Do you write music? LOPEZ: No, sir. BURKAN: Do you read music? LOPEZ: No, sir. BURKAN: What musical training have you had? LOPEZ: None. BURKAN: Did you ask Shrigley to take “More Power Blues” down in staff notation? LOPEZ: Yes, sir. BURKAN: Tell us how you happened to have Shrigley take this composition down in staff notation? LOPEZ: We were playing at the Hotel Sherman one night and the clarinet player of the Dixie Land Jass Band that played with us, Nunez, and a party came up and asked us to play Livery Stable Blues and I said I never heard it,

144This structure is present in the first formal section, or A section, of “Livery Stable Blues” and “Barnyard Blues.” However, the song deviates by expanding on the archetypal harmonies. 145Walter Ong, Orality and Literacy: The Technologizing of the Word (1982 Repr., New York: Routledge, 1988), 34-36. 77

and Nunez said, you know it. It is More Power Blues with an interlude made descriptive where we used to play it in straight harmony, straight melody, it is played with a pony cry and rooster crow. It is made descriptive, that is Livery Stable Blues.146

When Burkan asked Lopez how he knew what to play, he responded that Nunez explained to him “exactly what to play.” Most obviously, this section of examination explicitly indicates that Lopez could not read musical notation. It also indicates the manner in which orally transmitted music was transferred to written notation, with this section discussing “More Power Blues,” purportedly predating and inspiring

“Livery Stable Blues.” While it is possible for Shrigley to perfectly transcribe, there is still the potential for discrepancies between Lopez’s performance and Shrigley’s transcription. Not only was Shrigley fallible, but he may also have made adjustments for what he perceived to be rhythmic inconsistencies and harmonic clashes that in performance would have otherwise contributed to the distinctive character of Lopez’s song. Likewise, Nunez explained that he was a “born musician,” thus had never needed to learn to read music. ‘No, suh, I’m a born musician. I am,’ said Nunez. ‘I never was learned a note in my life.’”147

In the absence of written notation, these jazz musicians relied on formulaic orally-transmitted methods of performance. As a result, the determinate features of

“Livery Stable Blues” that the jazz musicians cite, such as the song being “a blue number,” thus implying a set of musical features typical of “blues” songs, were not necessarily protectable by the standards of period copyright law. The fact that many

146 Ray Lopez, Interrogatory Transcript, October 2, 1917, 5, Hart et al. v. Graham. See Appendix B. 147”Jazz Band May Play In Court.” See Appendix D. 78

“blue numbers” shared what Lopez knew to be the same “nature” rendered these features, and thus “Livery Stable Blues,” largely unoriginal.

Apart from these determinate features, the interpolated animal calls served as one of the main identifying features of “Livery Stable Blues.” Although “no claim is made by either side for the Barn-Yard calls that are interpolated in the music,”148 in the bill of complaint, the animal calls feature prominently in the examinations as a distinctive feature of the song. Both counsels drew specific attention to the animal calls, asking witnesses to clearly delineate which instrument created which sound and who invented it. For example, the ODJB claimed that the sounds were an addition on

LaRocca’s part that became a fixture in the band’s performance of “Livery Stable

Blues” after the humorous escapade at Schiller Café.149 Edwards gave a succinct explanation of the circumstances, which the other band members corroborate:

BURKAN: Immediately after LaRocca gave this imitation of a horse neigh on the cornet did you have any conversation with LaRocca? EDWARDS: Yes. BURKAN: Please state the conversation? EDWARDS: I told him it would be a good stunt to put this horse whine in a number and he said he had it in a number and I, of course, asked him what number it was, and he replied “A Blue number.” I told him some time we might try it and it might prove a good number to us.150

148”Court Findings,” Hart et al. v. Graham, 1, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix C. 149Edwards’s testimony here reaffirms the plaintiffs’ composition story for “Livery Stable Blues” discussed in more depth in Chapter 2. 150Edwin B. Edwards, Interrogatory Transcript, October 2, 1917, 3, Hart et al. v. Graham; 2, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix B. 79

Conversely, Lopez explained that while he created the melody, which supposedly originated in “More Power Blues” that he himself composed, while Nunez added the animal calls.151

The animal calls serve as the most outstanding example of conceptual friction between expert witnesses’ and jazz musicians’ conception of the identifiable features of the work. Although the jazz musicians emphasize the animal calls, they defy written notation. Figure 2 shows the section in “Barnyard Blues” where the sheet music attempts to capture the evocative animal calls heard in “Livery Stable Blues”152 within the confines of notation. These sounds are not evoked in the Graham sheet music for “Livery Stable Blues.”

Figure 2: Animal Calls in “Barnyard Blues”153

In the given sheet music, the printed words beneath each measure provide an indication of the intended sound. By comparison with the distinctive, original sounds heard on record, however, the sounds the music notation allegedly represents are reduced to melodically simplistic gestures that do not precisely express the aural work as the jazz musicians conceived of it. The rate at which the pitch changes cannot be

151Raymond Lopez, Interrogatory Transcript, October 2, 1917, 2, Hart et al. v. Graham; 2. See Appendix B. 1521’17”-1’23” on Original Dixieland Jazz Band, Livery Stable Blues, Victor 18255, 78 rpm. 1917. 153D.J. LaRocca, Barnyard Blues (New York: Leo Feist, 1917). 80 precisely notated and the technique and sound itself is idiomatic such that a pianist may only approximate the sound heard on record or in live performance. While the evocative labels assist the performer, they ultimately leave the execution of the effects at the discretion of the performer as in orally transmitted music. As a result, the identifiable features of the song according to the jazz musicians could not be translated into written notation, and were thus unprotectable because they could not be accurately expressed for publication.

Elements like ornamental runs and fills might be more easily transcribed than the animal calls, but are an improvisatory part of jazz performance practice. ODJB pianist Henry Ragas explained that after giving instructions for how to play “Livery

Stable Blues,” LaRocca trusted the band members to finish realizing their parts. As the defense counsel paraphrased, “in other words, [LaRocca] would hum the parts to you and you as musicians would put them in for the various instruments which you played.”154 In his deposition, Ragas continued to explain to Munns that each performer’s expression of their part occurred during performance, such that “Livery

Stable Blues” was not played the same way each time:

MUNNS: Was the composition in question played the same way, in the same manner the first time you played it, as the tenth day of your rehearsals? RAGAS: No, we played it just a little better.155

154Henry Ragas, Interrogatory Transcript, 8, October 2, 1917, Hart et al. v. Graham; 8, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix B. 155Henry Ragas, Interrogatory Transcript, 8, October 2, 1917, Hart et al. v. Graham; 8, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix B. 81

Thus, transcribing these realizations would fix them in notation, eliminating the improvisatory nature of the work as part of the oral jazz tradition. Such a written transcription would provide protection only to the run as it appeared on paper, not to any other iteration that Ragas would play in performance.

It might seem that the Hart court needed only to turn to Victor 18255 to find the most accurate, but still tangible, representation of the work. After all, the idiomatic features that jazz musicians use to identify the song, especially the animal calls, are captured more accurately on record. The record would also provide tangible, reproducible evidence that the court required to represent the song as a musical work. Periodicals from the case even allude to Carpenter hearing the recording in the court room as evidence of the composition.156 Extant court records do not include any indication that the record was heard in court, however, and the periodicals only suggest that the court considered listening to the record.

Despite its evidentiary allure, the record has its own set of shortcomings. 78 rpm recordings such as Victor 18255 could only include three minutes of sound.

With its indeterminate nature that allowed for variants in performance, jazz songs like

“Livery Stable Blues” did not necessarily conform to this duration in live performance. To play the record twice in its entirety would also negate the flexibility within a broader framework that is typical of oral transmission because the listener would hear the same improvisatory gestures reproduced precisely the same way.

156“‘Jazzy Blues’ To Moan Lure in U.S. Court Federal Judge Carpenter Must Decide Who Wrote the Wiggly Epic of the Livery Stable”; “At Last! Court Finds Man Who First Jazzed.” See Appendix D. 82

Copyright formalities set a problematic precedent for the transmission of musical compositions. The language of the Act privileges written notation over any other media, including oral transmission and recordings. While mechanical recordings were one major impetus for the revisions in the 1909 Act, recordings were treated more as public performance than as a copy of the work itself. For example, the Act refers to “use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work.”157 As a result, Victor 18255 remained legally irrelevant, since it would not be considered an expression of the work for almost another sixty years.

Discrepancies between the identifiable features expert witnesses and jazz musicians drew on to identify or qualify the originality of “Livery Stable Blues” indicate discrepancies of musical perception rooted in variant musical and cultural events. The features that expert witnesses selected to identify “Livery Stable Blues,” including harmony, rhythm, melody, and formal structure, were identified entirely based on their expression on sheet music. Privileging written features in the sheet music remained consistent with copyright statute that required publication on written notation to formally represent the work. In contrast, none of the three alleged authors’ claims to the song necessitated written notation to establish the boundaries of the work. Rather, they each provided aurally-based musical descriptions of the song that created a formulaic overview and specific details necessary to perform the song.

Thus, when “Livery Stable Blues” was transcribed onto sheet music in order to fulfill the formalities copyright protection, the song as it was known in the jazz community

157Copyright Act, 1909, §1(e)(a), 21-23 83 was lost in transmission, leaving a conglomeration of unprotectable, preexistent material.

These transmission problems culminate in Carpenter’s decision to place

“Livery Stable Blues” in the public domain. In accordance with copyright statute and the case itself, which regarded two pieces of sheet music, Carpenter focused on a comparison of two pieces of sheet music and the assertion that “Livery Stable Blues” derived from “More Power Blues” and blues music more generally. As a result, his decision centered on formulaic, unoriginal elements of the song in either sheet music version that would render it unprotectable.158 However, the decision necessarily disregarded the oral authorial processes outlined by the jazz musicians, which did not place any material limitation on the confines of the work. “Livery Stable Blues” existed as a discrete work in oral transmission through live performance before its transcription on sheet music, which was a commercially-oriented derivative adaptation of the intangible work rather than an accurate authorial representation of it.

Carpenter’s decision imposed legal restrictions on the protectable identity of the musical work that did not correspond to the identity of the musical work in the jazz community. Although legal jurisdiction had precedence over community moral claims, the contrasting approach created friction with legal process that required the song be expressed in written notation, regardless of its accuracy in representing the work. The fact that the song did not conform to limitations of written notation was

158See “Court Findings,” Hart et al. v. Graham, 2-3, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA, Appendix C. 84 only a problem for the jazz musicians seeking copyright protection for transmission of their musical works on a massive, commercial scale.

Chapter 5: ‘Now That’s the Story of the “Livery Stable Blues”’

The legal questions addressed in Hart regarded copyright infringement: first, whether there was copying in fact, and second, whether “Livery Stable Blues” was original or derived from a preexistent work, namely, “More Power Blues.” Jazz musicians and legal professionals approached these questions from two opposing perspectives, but using the same premise: the author of the musical work is the original creator and owner, and thus rights holder. This line of reasoning gave rise to deeper questions, however, involving the identities of the author and the work.

Although there was a rich precedent for copyright cases involving rights appropriation for original and derivative works, the lack of common law precedent regarding jazz and blues forced the court to formulate its decision based on its statutory understanding of “original works of authorship.” Since the jazz community was subject to legal jurisdiction, the court findings determined and presented by

Judge Carpenter provided the final legal answer to these questions as they regarded

“Livery Stable Blues.”

As part of the case, it was determined that the successful copyright registration for “Barnyard Blues” established the song as a protectable work with an author and rights owner, and the close similarity between “Barnyard Blues” and the

Graham sheet music for “Livery Stable Blues” indicated clear copying in fact suitable

86 for infringement of the author’s rights to reproduction and distribution. In his decision, Carpenter acknowledged the claims made by jazz musicians to the

“interpolated animal and bird calls” as well as “the melody” to “Livery Stable Blues.”

However, Carpenter based his decision on the statements of expert witnesses: “I am inclined to take the view of Professor Slap White in this case, that [‘Livery Stable

Blues’] is an old negro melody, that it has been known for a great many years.”159

Carpenter relied on Slap White’s explanation that “blues is blues,” or that blues songs are fundamentally the same. This correlates to the formulaic elements identified in the sheet music versions and described by the jazz musicians as part of oral transmission. As a result, “Livery Stable Blues” was deemed unoriginal, and thus not protectable by copyright for either party, regardless of their alleged authorship claims.

Despite Carpenter’s dismissal of the case, Burkan sought to appeal the decision in the case without the support of the ODJB. In order to test the decision, the ODJB deliberately made minor revisions to “More Power Blues” and recorded it as “Mournin’ Blues” on Victor 18513. Although the copyright replicated the situation in Hart, no one challenged the band’s claim to copyright.160

“Now that’s the story of the ‘Livery Stable Blues.’ If I don’t give this down to posterity and they find out about it, they’ll think that I’ve lied all the way through.

159“Court Findings,” Hart et al. v. Graham, Dominic ‘Nick’ LaRocca Collection, Hogan Jazz Archive, Tulane University, New Orleans, LA. See Appendix C. 160Brunn, The Story of the Original Dixieland Jazz Band, 86. After the case, fame carried the ODJB to England in 1919, where they made claims to being the first jazz band to perform in Europe. The band continued with constant personnel changes beginning with Edwards being drafted in 1918 and Ragas’ death in 1919 through LaRocca’s nervous breakdown in 1925, when Sbarbaro carried the torch until the band came back together during the Dixieland revival in the 1940s. 87

And that’s why I give you this. . . .”161 During an oral history taken late in his life,

LaRocca recounted the legal battle over “Livery Stable Blues,” still defending the song as his own composition. The same year, Ray Lopez gave an oral history that likewise attested to his authorship of the song. Lopez even stated that he continued to receive royalty checks for the song.162 Nevertheless, hefty legal fees “tied up any forthcoming money in court.”163 Although Hart was dismissed and “Livery Stable

Blues” was placed in the public domain, the feud between New Orleans composers continued until their deaths nearly fifty years later.

As a whole, Hart demonstrates two opposing systems of authorial appropriation. Copyright statute, and Carpenter’s interpretation of it, afforded a narrower scope of copyright protection to musical compositions than the same composition would have received in the jazz community. Among jazz musicians, it was often the case that songs as musical works were attributed to their respective authors, while collaborative efforts were still recognized within the community.

Community understanding provided protection for the author to maintain his moral claim, while allowing for subsequent compositions based on a lower standard of originality. In contrast, authors seeking federal copyright protection for their compositions were subject to formalities that bound music to published written

161LaRocca oral history May 26 1958, Reel III, Transcript, 80, Hogan Jazz Archive, Tulane University, New Orleans, LA. In the context of the interview, LaRocca stakes claim to having composed “Livery Stable Blues” and describes the legal process in Hart et al. v. Graham from his perspective. 162Ray Lopez, Oral History, August 3, 1958, Reel 2, Summary, 14, Hogan Jazz Archive, Tulane University, New Orleans, LA. 163Lopez, Oral History, August 3, 1958, 2:14. Lopez claimed that in the previous year there was as much as $30-40,000 tied up in litigation. 88 notation and an approach to originality that was more synonymous with novelty than uniqueness.

Although newspapers reported that “the decision will affect a larger number of azure syncopations,”164 Carpenter’s dismissal of the case limited the impact of the decision on copyright law and jazz history. The decision is not included in the

Federal Report, making it relatively inaccessible to lawyers and legal historians.

Despite its limited historical impact legally and musically, Hart et al. v. Graham is significant not only because it is part of the early reception history of Victor 18255 but also because the case represents the convergence of the first jazz record with the first significant copyright law case involving a jazz record.

The mass distribution of Victor 18255 is a pivotal element for the reception of the record and was a catalyst for Hart. On the one hand, mass distribution of the record made the ODJB’s music widely accessible. Thus, without protection, the songs would be easily copied by other bands seeking to capitalize on the rapid success set out by the ODJB. Max Hart’s pursuit of copyright for both songs was merely good business practice in protecting the ODJB’s reputation and financial success. On the other hand, mass distribution drew the record to the attention of other jazz musicians, namely Ray Lopez and Alcide Nunez. To those musicians, the release of Victor

18255 seemed to violate the relatively free exchange of songs within the jazz community by not only claiming exclusive authorship over the songs but also by limiting further performance of them through federal copyright registration.

164“Blues are Blues, Court Decrees, and No One Wins.” See Appendix D. 89

It is at this point that the title discrepancy for “Livery Stable Blues” becomes significant. Although the possibility remains undocumented, Lopez and Nunez may have used the difference in title between the record label and copyright registration for the B-side as a gap in legal protection. Since “Barnyard Blues” was protected and

“Livery Stable Blues” was not, the duo could have capitalized on the massive success of the record and at the same time challenged the ODJB’s federal copyright claim to what they considered to be rightfully their song. Regardless of Lopez and Nunez’s motivation, the resultant copyright infringement suit that Hart and the ODJB brought against Graham (and Nunez and Lopez by association) forced a critical confrontation between the jazz community and federal copyright law.

Hart does not suggest that either group’s cultural practice for recognizing authorship and transmission rights completely counteracts the other. Prior to, and even after, Hart, community practices like the exchange of songs in the jazz community were within the realm of permissible activity. Rather, Hart brought these two systems into conflict such that differences in practice became points of contention between members of the jazz community and the court. In particular, points of contention with regard to the author, his rights, and the nature of transmitting the work designate overlap between the two communities. More importantly, such points of contention indicate the incompatibility of the two systems and the dominating power of legal jurisdiction.

The first point of contention arose from two different projections of models for the identity of the author. Both legal professionals and jazz musicians recognized

90 the author as original creator, although jazz musicians were more sensitive to the collaborative nature of jazz compositions and established a lower threshold for originality. As a result, a song like “Livery Stable Blues” dependent on formulaic compositional structures and subtler improvisational techniques based on a collaborative authorship social model was not be enough to indicate original creation by legal standards.

The court’s inquiry to identify the author brought up questions not just about what constitutes an original work, but what constitutes a musical work itself. For

Hart, as a copyright case, the answers to these broader questions were colored by transmission issues of reproduction and distribution. Legal professionals and expert witnesses operated within the confines of the case and the formalities of the period copyright regime focused on “Livery Stable Blues” as it appeared on printed sheet music. In contrast, jazz musicians explained that the song existed in oral transmission long before it was ever transcribed onto sheet music. The two groups of witnesses selected different criteria for locating the identifiable elements of the song. Their selected criteria dismissed many of the sheet music features as formulaic, focusing instead on non-notated ornamental and idiomatic additions to define the work as original. These different approaches to the song created another point of contention between groups centered on transmission. “Livery Stable Blues” as it was orally transmitted in the jazz community was dependent on formulaic structures and original ornaments, but it could only be federally protected through copyright based on written sheet music that variably represented its contents.

For the jazz community, Hart demonstrated the presence of jazz songs as works that constitute the core of federal copyright protection as “original works of authorship.” These songs were recognized as such within the musical community in which they were conceived, but that did not receive the same recognition from federal copyright laws. Since songs like “Livery Stable Blues” could not receive protection without meeting legal formalities, the structure of the statute and the formalities themselves marginalized jazz musicians and their music. This problem manifests in differing means of transmission and the legal preference for written notation that not only limits what may be tangibly expressed but also denies protection to variable, improvisatory elements at the heart of jazz performance.

Only further research can verify the relative significance of these points of contention in the broader context of jazz history by tracing them through the remainder of twentieth century in order to identify the ways in which both groups adapt and respond to the other. This may be seen through amendments to copyright statute, especially the 1976 Copyright law overhaul that recognized recordings as tangible expressions of musical works, as well as the plethora of copyright cases involving claims for jazz songs.

When considered in a broader context as a cultural-historical event, Hart represents the way in which Victor 18255, specifically “Livery Stable Blues,” was received by the federal legal system as one cultural institution. However, the case also has further implications for the ways in which jazz was received at the moment it became a popular musical style which suggests the need for further research. For

92 instance, the language of the case reveals profound instability in the definitions of styles and divisions between ragtime, blues, and jazz. The ways in which musicians, legal professionals, and news media approach jazz also illuminated the cultural place of jazz as it was first received by general American audiences. Continued research will further reveal the significance of extant Hart documents as a testament to the reception of Victor 18255, and jazz in general, in 1917.

Bibliography

Archival Sources

The Dominic ‘Nick’ LaRocca Collection. Hogan Jazz Archive, Tulane University. New Orleans, LA.

Hart et al. v. Graham. Equity Case 914. 1917. National Archives Great Lakes Region, Chicago, Illinois.

Published Primary Sources

“A Brass Band Gone Crazy!” Advertisement, Victor Recording Company, March 7, 1917. Reprinted in “Voice of the Victor,” July issue, 1917: 130.

“‘Jazzy Blues’ To Moan Lure in U.S. Court Federal Judge Carpenter Must Decide Who Wrote the Wiggly Epic of the Livery Stable.” Chicago American, October 3, 1917.

Ad for Reisenweber’s, New York Times, Jan. 27, 1917, 7.

“All Know Jazz, But No Music.” Chicago Daily Herald, October 12, 1917: 3.

“At Last! Court Finds Man Who First Jazzed.” Chicago American, October 11, 1917: sports, 1.

“Blues and More Blues Go Blooey in Music Suit.” Chicago Daily Tribune, October 12 1917: 11.

“Blues Are Blues, Court Decrees, And No One Wins.” Chicago Daily Tribune, October 13, 1917: 13.

“‘Blues are Blues, They Are’ Says Expert in ‘Blues’ Case.” Variety, October 19, 1917. Reprinted in Karl Koening, Jazz in Print (1856-1929):An Anthology of Selected Early Recordings in Jazz History. Hillsdale: Pendragon Press, 2002: 120-21.

“‘Blues’ Song Case Lacks Equity.” New York Clipper, October 17, 1917.

“Court Soft Pedals Jazz Discord.” Chicago American, Final Edition, October 12, 1917: sports, 1.

“Discoverer of Jazz Elucidates In Court.” Chicago Daily News, Home Edition, October 11, 1917: 1.

“Jazz Band Masterpiece Authorship in Dispute: Dominic Claims Alcide Purloined His Tone Picture of Emotions of Lovesick Colt.” Chicago Journal, October 11, 1917.

“Jazz Band May Play in Court.” Chicago American, Tenth Edition. October 12, 1917: sports, 1.

“Judge Dismisses Case of ‘Blues’.” Chicago Herald, October 13, 1917: 4.

LaRocca, D.J. Barnyard Blues. New York: Feist, 1917.

Lopez, Ray and Alcide Nunez. Livery Stable Blues. Chicago: Roger Graham, 1917.

Kingsley, Walter. “Vaudeville Volleys: The Genesis of Jazz, with Some Sidelights on ‘Blues’ and ‘Shimmying’-Colonial Has New Policy-Factors on Week’s Bills-How Gottlieb Closes The Show.” Dramatic Mirror, December 14, 1918, 867.

Original Dixieland Jazz Band. Livery Stable Blues. Victor 18255-B, 78 rpm. 1917.

“Nobody Wrote Those ‘Livery Stable Blues’.” Chicago Daily News, Home Edition October 12, 1917: 3.

Seagrove, Gordon. “Blues is Jazz and Jazz is Blues.” Chicago Daily Tribune, Jul 11, 1915: E8.

Weil, Arthur. American Copyright Law with Especial Reference to the Present United States Copyright Act. Chicago: Callaghan, 1917.

Published Secondary Sources

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Armstrong, Louis. Swing that Music. New York: Longmans, 1936.

Averty, Jean-Christophe. “Contribution á l’histoire de l’Original Dixieland Jass Band (II).” Cahiers du Jazz 4 (1961): 74-117.

Berliner, Paul. Thinking in Jazz: the Infinite Art of Improvisation. Chicago: University of Chicago Press, 1994.

Blesh, Rudi. Shining Trumpets: A History of Jazz. 2nd ed. New York: Knopf, 1958.

Brunn, H.O. The Story of the Original Dixieland Jazz Band. New York: Da Capo Press, 1977.

Caporaletti, Vincenzo. Jelly Roll Morton, la Old Quadrille e Tiger Rag. Lbreria Musicale Italiana, 2011.

Carney, Court. “New Orleans and the Creation of Early Jazz.” Popular Music and Society 29/3 (July 2006): 299–315.

Charters, Samuel. A Trumpet around the Corner: The Story of New Orleans Jazz. Jackson: University Press of Mississippi, 2008.

_____ and Leonard Kunstadt. Jazz: A History of the New York Scene. Garden City, NJ: Doubleday, 1962.

DeVeaux, Scott and Gary Giddins. Jazz. New York: Norton, 2009.

Dicaire, David. Jazz Musicians of the Early Years, to 1945. Jefferson, NC: McFarland and Company, 2003.

Gillis, Frank. “Biography of a Jazz Tune, “Livery Stable Blues”/“Barnyard Blues.” Jazz Journal (June 1963): 25-27.

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_____. Pioneers of Jazz. Oxford: Oxford University Press, 2005.

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Appendix A: Evidence

Hart et al. v. Graham Identifiable Witness List

Witness Relationship to ODJB Documentation Jessie Allen Witness for Plaintiff Periodical Murray Bloom Composer Deposition Tom Brown Band Leader Periodical; Affidavit Jules Cassard Pianist from New Orleans and Deposition friend of LaRocca Earl Condor Dixieland Drummer Periodical Eddie Edwards ODJB Trombonist In absentia examination Ernie Erdman Pianist at Schiller’s Cafe Periodical; personal letters Sam Hare Proprietor of Schiller’s Cafe Periodical Max Hart ODJB Agent In absentia examination Victor Herbert Composer; ASCAP member Mention in letter declaring preliminary injunction May Hill Song Plugger and Composer Periodical; Examination; Court Findings Raymond Hubbell Composer; ASCAP member Deposition Louis Joseph New Orleans Dancer Deposition William Lambert Expert Witness Examination Albert Kelly Band leader Affidavit Nick LaRocca ODJB Trumpeter Affidavit Raymond Lopez Co-composer of Graham Examination; Periodical “Livery Stable Blues” Theodore Morse Composer for Leo Feist Deposition; Examination Alcide Nunez ex-ODJB clarinetist Periodical; Affadavit Henry Ragas ODJB Pianist In absentia examination Tony Sbarbaro ODJB Drummer In absentia examination Larry Shields ODJB Clarinetist In absentia examination Lee Orean Smith Expert Witness Examination Johnny Stein Drummer and Band Leader Periodical Professor James “‘Slap’” Expert Witness; Ragtime Periodical; Court White Pianist Findings

Written Evidence

Label Evidence Exhibit A Manuscript Copy of “Barn Yard Blues” for deposition of Jules Cassard taken before October 1, 1917 Exhibit B Manuscript Copy of “Barn Yard Blues” Exhibit C Published copy of “Livery Stable Blues” Exhibit D Circular about Victor 18255 issued by Victor Talking Machine Company

100

Appendix B Extant Court Records for Hart et al. v. Graham, Equity Case 914

These documents have been compiled from the National Archives Great Lakes

Region and the Dominic ‘Nick’ LaRocca Collection at the William Ransom Hogan Jazz

Archive at Tulane University. They are by no means a complete collection of all materials used in the case, but rather the court documents that survive. My goal in compiling this appendix is to present the case documents in their extant entirety in order to provide a contextual reference to the examples provided in the body of the present document.

The following documents are labeled and arranged in chronological order based on the dates the documents bear for the sake of maintaining civil procedure and promoting diachronic reconstruction. In the case of multiple documents for a single day, and in situations where their order is not otherwise apparent, they are arranged subsequently in alphabetical order. It is important to note that although the testimonies for the ODJB bear the date October 3, the testimonies were taken in absentia, thus it is possible that the date refers to their recitation in court, not the date of their transcription.

Only LaRocca attended the hearing. There are other situations where documents are undated or seemingly misdated, as is the case for the Theodore Morse’s deposition, dated

July 7th, 1917. It is more likely the case that the deposition was taken concurrently with

LaRocca and Smith.

101

While I wish to produce an accurate rendering of the documents, I have adjusted gross typing errors in spelling for names and obvious English words as well as punctuation. For example, in the original documents there are numerous variations in name spelling, especially for LaRocca, Nunez, Sbarbaro, and Ragas. There are also instances where periods seemingly fill in for question marks in witness testimony.

Furthermore, I have kept spacing relatively intact, adjusting only to maintain consistency, mainly in the witness examinations. Page separations indicate a separation of the documents themselves.

102

Deposition of Theodore Morse

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

State of New York City and County of New York

Theodore Morse, being duly sworn, deposes and says: I am a composer of music and have been such for more than 20 years. I am associated at the present time with the music publishing firm of Leo Feist, Inc., of New York City, in the capacity of music writer and arranger. I have written many musical compositions which have attained popularity and success. Some of the compositions written by me are: “M-O-T-H-E-R,” “Sing me Love’s Lullaby,” “Bobbin’ Up and Down,” “Blue Bell,” “Dear Old Girl,” etc. I have compared the manuscript of complainants’ composition entitled “Barnyard Blues” with the sheet music of defendant’s composition “Livery Stable Blues” and from such comparison I am of the opinion that the theme and melody in both songs are identical.

Sworn to before me this 7th day of July, T. F. Goodwich, Theodore Morse [signed]

103

Deposition of Dominic ‘Nick’ LaRocca

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

City and County of New York, SS:

Dominic James LaRocca, being duly sworn, deposes and says: I am one of the complainants in the above entitled action. I am a musician by profession and have been such for more than seven years. I have written and composed during these years numerous musical compositions, among them being “Sensational Rag,” The Ostrich Walk” and “Tiger Rag.” During the summer of 1914, I was residing at New Orleans, Louisiana. That while residing in said City I conceived a melody which I subsequently incorporated into the musical composition known as “Barnyard Blues” and that the occasion for the conception, origination, development and composition of said melody was as follows: One Jules Cassard, visited my home frequently. He would play chords on the piano and I would improvise melodies on the cornet during the playing of the chords. On one of such occasions I improvised the melody of the said composition. I worked over the melody for four weeks and perfected the same and reduced it to manuscript form, keeping the copy of the manuscript in my possession. A manuscript copy of said song is annexed to the bill of complaint and marked “Exhibit A.” There were no co-authors in the creation of this musical composition and the idea of the song and the music are my own independent thought and conception.

104

I assigned an undivided one-fifth interest in the month of February 1917 each of these complainants, Rags, Shields, Sbarbaro and Edwards and retained one-fifth interest in the song. Thereafter and prior to the 9th day of April, 1917, Ragas, Shields, Sbarbaro, Edwards and myself duly authorized the complainant Hart to copyright such musical composition and Hart, and on the 10th day of April, 1917, duly copyrighted the same as an unpublished work. Ragas, Shields, Sbarbaro, Edwards and myself retained and are now the sole owners of the performing and publishing rights in said song. A few weeks ago my attention was called to a musical composition published by the defendant Roger Graham under the title “Livery Stable Blues.” That on June 1, 1917 the defendant wrote a letter to the complainant, Max Hart, in which he admitted that he published the said song ““Livery Stable Blues”.” Deponent bought several copies of the said defendant’s song “Livery Stable Blues” at the publishing house of Shapiro, Bernstein & Co., located at #226 West 47th Street, in the Borough of Manhattan, New York City, on July 17th, 1917 and said musical compositions bear upon the face of it the name of Roger Graham, this defendant, as the publisher thereof. One of such copies is annexed to the complaint. I have played the defendant’s composition and compared it with my own composition “Barnyard Blues” and the melody and theme of the defendant’s composition are not only taken from, but are identical with the melody and theme of my song “Barnyard Blues.” The defendant has placed the song on sale in the City of Chicago and the other large cities of the United States and unless he is enjoined from publishing, selling disturbing or otherwise disposing of his musical composition during the pendency of this action, the exclusive right of the complainants to reproduce their song in copies for sale will be destroyed. Wherefore, I respectfully request the annexed order to show cause be signed, why the defendant, his agents, and servants, should not be restrained during the pendency of this action, from publishing, printing, reprinting, vending, selling or offering for sale or otherwise distributing the musical composition entitled “Livery Stable Blues” or any other imitation or colorable imitation of the complainants’ musical composition entitled “Barnyard Blues.”

Sworn to before me this 17th day of July, Rae Hartman, Dominic James LaRocca [signed]

105

Deposition of Murray Bloom

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

State of New York City and County of New York

Murray Bloom, being duly sworn, deposes and says: I am a composer of music and have been such for more than seven years. I am associated at the present time with the music publishing firm of Harry Von Tilser Music Publishing Company of New York City, in the capacity of music writer and arranger. I have written many musical compositions which have attained popularity and success. Some of the compositions written by me are:

I Found Someone to Chase the Blues Away Come Along to Carolina One War at Home Until Home

I have compared the manuscript of complainants’ composition entitled “Barnyard Blues” with the sheet music of defendant’s compositions “Livery Stable Blues” and from such comparison I am of the opinion that the theme and melody of both songs are identical.

Sworn to before me this 18 day of July, 1917 Stephen J Krauser, Murray Bloom [signed] 106

Deposition of Lee Orean Smith

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

State of New York City and County of New York

Lee Orean Smith, being duly sworn, deposes and says: I am a composer of music and have been such for more than ten years. I am associated at the present time with the music publishing firm of Leo Feist, Inc., of New York City, in the capacity of music writer and arranger. I have written many musical compositions which have attained popularity and success. Some of the compositions written by me are:

America Maiden America

Sworn to before me this 18 day of July, 1917 Edgar F Bitner, Lee Orean Smith [signed]

107

Deposition of Jules Cassard

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

State of Louisiana City of New Orleans Parish of Orleans

Jules Cassard, being duly sworn, deposes and says: I reside at #608 St. Andrew Street, City of New Orleans, State of Louisiana. I am a musician by profession and have been such for the past ten years. I am well acquainted with Dominic James LaRocca, one of the complainants in this action, and have known him for more than twelve years. I am familiar with the musical composition entitled “Barnyard Blues,” a manuscript copy of which is hereto annexed. During the summer of 1914, the complainant LaRocca resided at #2022 Magazine Street, New Orleans, Louisiana, and at that time I was a frequent visitor at the home of the said LaRocca. During one or more of such visits at that time I saw and heard the said LaRocca conceive and improvise on the cornet the music of the composition which was subsequently and is now entitled “Barnyard Blues.” I know that Dominic James LaRocca composed and originated the music of the said composition and that the said music of the said composition and that the said music was his original conception and invention.

108

Sworn to before me this 20th day of July 1917, G. S. Gill, Notary Public, Jules Cassard, [signed]

109

Plaintiff’s Complaint

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-against-

Roger Graham, Defendant

TO THE HONORABLE JUDGES OF THE DISTRICT COURT OF THE UNITED STATES, FOR THE NORTHERN DISTRICT OF ILLINOIS:

The complainants by E.S. Hartman, their attorney, for their complaint, respectfully show to this Court and allege:

I: That at all the times hereinafter mentioned the complainants were and now are citizens of the United States.

II: Upon information and belief, that the defendant is a resident of the City of Chicago, State of Illinois, and now has an office for the transaction of his business at #143 North Dearborn Street, City of Chicago, State of Illinois. That said defendant is engaged in the business of publishing and selling music and musical compositions in sheet music form.

III: That long prior to the commencement of this action, and in or about the year 1914 the complainant, Dominic James LaRocca, a citizen of the United States, wrote composed and originated the music of a certain musical composition to which was given the title “Barnyard Blues” and that prior to the commencement of this action and in the month of February, 1917 the said Dominic James LaRocca, for a valuable consideration, sold, assigned, transferred, and set over unto each of the complainants, Henry W. Ragas, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, an undivided one-fifth interest in the said musical composition and in all of his right title and interest in and to 110 the same and in the whole thereof, the complainant Dominic James LaRocca retaining the remaining one-fifth interest therein. That the said musical composition was the original conception and invention of the said Dominic James LaRocca.

IV: That thereafter and on the 9th day of April, 1917, the complainant Max Hart, having been duly authorized to do so by all the other complainants, copyrighted the said musical composition on “Barnyard Blues” composed as aforesaid by said complainant, Dominic James LaRocca, the same being a work copyrightable under the Copyright Law of the United States, by depositing in the office of the Register of Copyrights, Washington, District of Columbia, one complete copy of such musical composition, and by paying to the Register of Copyrights the fee required by law for the registration of said work and such work was duly copyrighted by the said Register of Copyrights as an unpublished work on the 9th day of April, 1917. That the said musical composition had not been published publicly distributed or reproduced in copies for sale, by the complainants or either of them, or by anyone else with the consent or authority of the complainants or any of them. That the right to copyright such musical composition “Barnyard Blues” was granted to the complainant, Max Hart, subject to the condition that the performing and publication rights therein shall belong to the complainants, Ragas, LaRocca, Shields, Sbarbaro and Edwards, who are the sole owners of the performing and publication rights thereof.

V: That thereafter the Register of Copyrights issued to the complainant, Max Hart a certificate of copyright registration of the said musical composition “Barnyard Blues” in pursuance of the Copyright Law, as more fully appears by the certificate of copyright registration a true copy of which is hereto annexed, marked “Exhibit A” and made a part hereof, and the said Max Hart is now the copyright proprietor of such musical composition “Barnyard Blues”. Annexed hereto and marked “Exhibit B” and made a part hereof, is a true manuscript copy of complainant’s musical composition entitled “Barnyard Blues”.

VI: That the said musical composition “Barnyard Blues” has been performed throughout the United States and has acquired great popularity and a valuable reputation with the public and the same is attractive, pleasant and successful and has been a source of great profit to the complainants. That the said musical composition is of great value and exceeds in value the sum of Five thousand ($5,000.00) dollars and the amount involved in this litigation exceeds the sum of Three thousand ($3,000.00) Dollars.

111

VII: Upon information and belief that the defendant, cognizant of the popularity and great success of the said musical composition “Barnyard Blues” and with full knowledge of complainants’ rights therein and thereto, and with full knowledge of the copyright therein, did on or about the month of May, 1917, and thereafter unlawfully cause, and still continue and threatens to continue to cause to be published and placed upon the market for sale in various music stores in the City of Chicago and throughout the different Cities of the United States, a musical composition entitled “Livery Stable Blues”. That the said musical composition so published by the defendant is taken and copied from the complainants’ musical composition entitled “Barnyard Blues”. That annexed hereto, marketed “Exhibit C” and made a part hereof is a copy of the said musical composition entitled “Livery Stable Blues” as published and sold by the defendant.

VIII: That the said publication by the defendant is without the consent or authority of the complainants, or any of them. That the said wrongful sets of the defendant in publishing the said musical composition “Livery Stable Blues” as aforesaid, is causing great injury and damage to the complainants, and if allowed to continue, will destroy the value of the complainants’ rights in and to the said musical composition entitled “Barnyard Blues” and if the defendant be permitted to continue such wrongful and unlawful acts, the complainants will be irreparably damaged. That a continuance of the acts on the part of the defendant will lead others to follow his example and weak- en and gradually break down the exclusive rights which complainants have in and to the said musical composition “Barnyard Blues” and that a continuance of the acts of the defendant will damage the complainants to such an extent that no damages recovered by an action at law will afford them adequate relief and the damages which will be suffered by the complainants are not capable of estimation or calculation.

IX: That the complainants have no adequate remedy at law.

W H E R E F O R E, complainants pray:

1: That a writ of subpoena issue out of this Honorable Court directed to the defendant, commanding him to appear and answer this bill of complaint within twenty days after service of said writ.

2: That the defendant, his agents and servants be restrained and enjoined during the pendency of this action and perpetually thereafter, from publishing, printing, reprinting, vending, selling, offering for sale, or otherwise distributing the musical 112 composition entitled “Livery Stable Blues” or any other imitation or colorable imitation of the complainants’ musical composition entitled “Barnyard Blues”.

3: That the defendant be compelled to account, under oath for the number of copies of the said song “Livery Stable Blues” published, printed, reprinted and sold by him.

4: That the defendant be compelled to account, under oath, for all moneys received by him from all sources on account of the reproduction on instruments serving to reproduce mechanically that said song “Livery Stable Blues”.

5: That the defendant pay unto the complainants such damages as may have been sustained by the complainants in consequence of the defendant’s unlawful acts and doings, besides the costs and a reasonable counsel fee.

6: That the complainants have such other and further relief in the premises as may be just and equitable.

ES Hartman Attorney for Complainants #30 North LaSalle Street Chicago, Ill

Dominic James LaRocca Complainant

Max Hart Henry W Ragas Lawrence Shields Anthony Sbarbaro Edwin B Edwards By ES Hartman their attorney [signed]

113

State of New York City and County of New York Southern District of New York As

DOMINIC JAMES LaRocca, being duly sworn, deposes and says: that he is one of the complainants in the within entitled action; that he has read the foregoing bill of complaint and knows the contents thereof; that the same is true of his own knowledge, except as to the matters therein stated to be alleged on information and belief; and that as to those matters, he believes it to be true.

Sworn to before me this 17th day of July, 1917, Dominic James LaRocca [signed]

[Attached: Certificate of verification for deposition]

114

Notification of Application for Preliminary Injunction

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

To Roger Graham, Said defendant:

You are hereby notified that on Thursday, the 26th day of July, 1917, at the hour of ten o’clock A.M., or as soon thereafter as counsel can be heard, I shall appear before His Honor Judge Carpenter, in the courtroom usually occupied by him, or in his chambers, in the Federal Building, Chicago, Illinois, and make application for preliminary injunction as prayed for in the sworn Bill of Complaint now on file in the above entitled cause, and in support of said application I will read said sworn Bill of Complaint, with the exhibits attached thereto and the affidavits of Dominic James LaRocca, Theodore Morse, Lee Orean Smith, Murray Bloom, and Jules Cassard, copies of which are served upon you herewith, at which time and place you may appear if you see fit.

Dated Chicago Illinois, July 24, 1917. ES Hartman [signed] Solicitor for Complainants

115

Chancery Subpoena Filed September 5, 1917

Greetings We command you and every of you, That you be and appear before our Judges of our District Court of the United States of America, for the Northern District of Illinois, at Chicago, in the Eastern division of said District on or before the twentieth day after service of this writ, exclusive of the day of service, to answer or otherwise defend against a certain bill in equity this day filed by Max Hart, et al in the clerk’s office of said Court, in the City of Chicago, then and there to receive and abide by such judgment and decree as shall then or thereafter be made upon pain of judgment being pronounced against you by default.

To the Marshal of the Northern District of Illinois to Execute Witness the HONORABLE George A. Carpenter, Judge of the District Court of the Untied States of America, for the Northern District of Illinois at Chicago aforesaid, this 25th day of July in the year of our Lord Nineteen hundred and Seventeen and of our Independence the 142nd year. TC MacMillan, clerk [signed]

Memorandum

The defendance is required to file his answer or other defense in the Clerk’s office on or before the twentieth day after service hereof upon his excluding the day of service; otherwise the said bill may be taken pro confesso.

TC MacMillan, clerk

116

Writ of Injunction Filed September 10, 1917

Roger Graham And to your counselors, attorneys, Solicitors, Trustees, Agents, Employees, Servants and Workmen and to each and every of you, Greeting: Whereas, It hath been represented to the Judges of our District Court of the United States for the Eastern Division of the Northern District of Illinois in Chancery sitting, on the part of

Max Hart, Henry W. Ragas, Dominion James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards,

Complainants in their certain bill of complaint, exhibited in our said District Court, on the Chancery side thereof, before the Judges of said Court, against you the said

Roger Graham,

To be relieved touching the matters complained of. In which said bill it is stated, among other things, that you are combining and confederating with others to injure the complainants touching matters set forth in said bill, and that your actings and doings in the premises are contrary to equity and good conscience. And it being ordered that a writ of preliminary Injunction issue out of said Court, upon said bill, enjoining and restraining you, and each of you, as prayed for in said bill; We, therefore, in consideration thereof, and of the particular matters in said bill set forth, do strictly command you, the said

Roger Graham,

Your Counselors, Attorneys, Solicitors, Trustees, Agents, Clerks, Employees, Servants, and Workmen, and each and every of you, that you do absolutely desist and refrain from [blank]

117

Undated document concerning hearing of complaint and injunction bond

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

#In Equity, No. 914

This cause came on this day to be heard upon the motion of the Complainants, for a preliminary injunction, and the Court heard read and examined the sworn Bill of Complaint herein, and the exhibits thereto attached, and the affidavits filed herein in support thereof, and heard the arguments of counsel for the respective parties; ad thereupon, upon consideration thereof, it was Ordered, Adjudged and Decreed, that upon the complainants filing with the Clerk of this court, a bond, in the penal sum of $2000, conditioned as required by law, with a surety or sureties to be approved by the clerk of this court, a preliminary injunction issue as prayed in the Bill, and remain in force until the further order of this court restraining and enjoining the defendant, Roger Graham, and his agents and servants, from publishing, printing, reprinting, vending, selling, offering for sale, or otherwise distributing the musical composition entitled “Livery Stable Blues” or any other imitation or colorable imitation of the Complainants’ musical composition entitled “Barnyard Blues.”

[hand written note: do not issue injunction or certified copy of this until injunction bond is filed.]

118

Appearance of Fred Lowenthal

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

Fred Lowenthal, Esq., 109 H. Dearborn St., Chicago, Illinois, Solicitor for Roger Graham Defendant in the above entitled cause:

I hereby enter my appearance as solicitor for the defendant in the above entitled cause.

Fred Lowenthal Solr. For defendant 11th floor 109 N Dearborn St Chicago Illinois Cent 8190

119

Defendant’s Answer

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

# 914

The Answer of Roger Graham, defendant, to the Bill of Complaint of Max Hart, et al., complainants.

This defendant now and at all times hereafter saving and reserving unto himself all benefit an advantage of exception which can or may be had or taken to many errors, uncertainties and other imperfections in the said Bill contained, for answer thereunto or to so much and such parts thereof as this defendant is advised it is r are material or necessary for him to make answer until answering says, etc.

Shields, Anthony Sbarbaro, and Edwin B. Edwards an undivided one-fifth interest in the said musical composition and in all of his right, title and interest in and to the same and in the whole thereof, the said Dominic J. LaRocca retaining the remaining one-fifth interest therein; that the said musical composition was not the original conception and invention of the said Dominic J. LaRocca, but on the contrary this defendant claims and alleges that one Ray Lopez was the originator and composer of said composition known as the “Barnyard Blues”, and the said Ray Lopez, together with Alcide Nunez, are the originators and composers of said composition known as “Barnyard Blues.” This defendant answering states that the said Nunez and Lopez, together with Bert Kelly and Guy Shrigley, claim to be the owners and composers and originators of said composition known as “Barnyard Blues”; that said last aforementioned parties have given this defendant the privilege of publishing said composition a royalty basis 4th- This defendant answering neither admits nor denies that Max Hart, one of the complainants herein, on the 9th day of April, 1917, through the authorization of the other complainants, copyrighted said musical composition known as “Barnyard Blues” as set forth in Paragraph Four of said bill of complaint. This defendant further answering admits that said musical composition has not been published publicly distributed or reproduced in copies for sale by complainants or either of them or anyone else with their consent or authorization. This defendant answering neither admits nor denies that the right to copyright said musical composition, the “Barnyard Blues” was granted to the complainant, Max Hart, subject to the conditions that the performing and publication rights therein shall belong to the complainants Ragas, LaRocca, Shrigley, Sbarbaro and Edwards, who claim to be the sole owners of the performing and publication rights thereto. 5th- This defendant further answering neither admits nor denies that the Register of Copyrights issued to the complainant, Max Hart a certificate of copyright registration of the said musical composition “Barnyard Blues” in pursuance of the copyright Law, as more fully appears by the certificate of copyright registration, a true copy of which is attached to bill of complaint, and that he said Max Hart is now the copyright proprietor of such musical composition “Barnyard Blues”. 6th- This defendant answering denies that said composition “Barnyard Blues” has been performed throughout the United States and has acquired great popularity and a valuable reputation with the public and the same is attractive, pleasant and successful and has been a source of great profit to the complainants; that the said musical composition is of great value and exceeds in value the sum of $5000.00 and the amount involved in this litigation exceeds the sum of $3000.00. 7th- This defendant further answering denies that he, cognizant of the popularity and great success of the said musical composition, “Barnyard Blues”, and with full knowledge of complainants rights therein and thereto, and with full knowledge of the copyright therein, 121 did on or about the month of May, 1917, and thereafter unlawfully cause, and still continues and threatens to continue to cause to be published and placed upon the market for sale in various music stores in the City of Chicago and through-out the different cities of the United states, a musical composition entitled “Livery Stable Blues.” That the said musical composition so published by the defendant is taken and copied from the complainants’ musical composition entitled “Barnyard Blues,” but on the contrary states that said Alcide Nunez, Ray Lopez, Guy Shrigley and Bert Kelly are the legal owners of said composition known as “Livery Stable Blues” and that the said Nunez and Lopez wrote, arranged, and composed said composition. This defendant answering states upon information and belief that the said LaRocca was a member of the same orchestra with Nunez and Lopez at the time this composition was written and this defendant states upon information and belief that said LaRocca was taught this composition by the said Nunez. 8th- Defendant further answering claims that he has the full right, power and authority to publish composition known as “Livery Stable Blues” from the two authors thereof. This defendant answering denies that the publishing of said musical composition known as the “Livery Stable Blues” is causing any injury and damage to the said complainants, and if allowed to continue will destroy the value of plaintiffs’ rights in and to the said musical composition entitled “Barnyard Blues,” and if this defendant be permitted to continue such wrongful and unlawful acts, the plaintiffs will be irreparably damaged, but on the contrary states that said composition known as “Barnyard Blues” is an infringement on the composition of said defendant known as the “Livery Stable Blues.” Defendant answering denies that the said complainant is entitled to the exclusive right in and to said composition known as “Barnyard Blues” and denies that any act of this defendant will damage the complainants to such an extent that no damage can be recovered by an action at law, and that no damage recovered by an action at law will afford the complainants adequate relief, and the damages which will be suffered by them are not capable of estimation or calculation. 9th- This defendant further answering neither admits nor denies that said complainants have no adequate remedy at law. 10th- Defendant further answering claims that Ray Lopez was the author and composer of said composition known as “Barnyard Blues”; that same was composed the latter part of 1915 and was played for the first time at the Schiller Café in the City of Chicago in February or March, 1916, and that in April, 1916 said Nunez originated the pony cry accompaniment to said composition, and one Ernie Erdman wrote the introduction of said composition known as the “Livery Stable Blues”; that said LaRocca was a member of the said orchestra at that time; that said orchestra was composed of Henry W. Ragas, Dominic J. LaRocca, Edwin B. Edwards, J.A. Stein and Alcide Nunez; that said orchestra 122 was known as the “Original Dixieland Jass Band”; that said orchestra dissolved about two or three months thereafter; that said composition known as the “Barnyard Blues” was reduced to writing by Guy Shrigley and turned over to this defendant about that time. 11th- This defendant further answering states that said complainants have made a contract with the Victor Talking Machine Company, a corporation of Camden, N.J. to make and publish records of the composition known as the “Livery Stable Blues” which composition is owned by this defendant; that this defendant secured a copyright of said composition, No. 403401 on the 24th day of May, 1917; that said complainants have no right or interest in and to said copyright or title known as “Livery Stable Blues”; that the Victor Talking Machine Company has sold and distributed a number of records of the “Livery Stable Blues.” 12th- This defendant further answering states that in May, 1917 he blushed a musical composition of the “Livery Stable Blues” for piano and other musical instruments; that said composition has been sold throughout the United States and said composition has acquired a popular sale and a valuable reputation throughout the United States; that said composition has been a source of great profit to this defendant and is of great value, and exceeds the sum of Ten Thousand ($10,000.00) dollars. 13th- This defendant further answering states that he has not authorized the Victor Talking Machine company to make, sell, or distribute any records under the name “Livery Stable Blues”; that said Victor Talking Machine Company has considerable money on hand as royalties for the sale of said records known as ““Livery Stable Blues”,” and this defendant is afraid and believes that said money will be turned over to said complainants to the damage of said defendant. 14th- This defendant further answering states that he is and has at all times been a citizen of the United States. 15th- This defendant further answering states that the music in the composition known as “Livery Stable Blues” is not the same or identical with that of the “Barnyard Blues”; that if a comparison of said compositions is made this Court will find out that said compositions are different; that this defendant is informed and believes that said complainants have taken their composition known as “Barnyard Blues” from the composition as played by Ray Lopez and Alcide Nunez, who are the originators, composers and authors of said composition known as “Livery Stable Blues”; that said LaRocca, Ragas, and Edwards were members of the same orchestra and played said composition for the first time under the instructions and direction of said Nunez and Lopez have made arrangements to publish same and did publish same through this defendant. 16th- This defendant further answering states that Bert Kelly, Alcide Nunez, Ray Lopez and Guy Shrigley claim to be and this defendant believes that they were the true and lawful owners of said composition known as the “Livery Stable Blues”; that they have 123 sold, assigned, transferred and set over until this defendant all right, title,, and interest that they have in and to said composition known as “Livery Stable Blues”. 17th- this defendant further answering states that he is informed and believes that said complainants are musicians by occupation; that he is informed and believes that they are not financially responsible, and should the Victor Talking Machine Company turn over said money to them, this defendant will be unable to recover same from said complainants. This defendant further answering states that said complainants have made contracts with sundry and diverse firms, the names and addresses of which are unknown to this defendant, for mechanical musical instruments and other mechanical machines from which they receive or expect to receive a large revenue for composition known as “Livery Stable Blues”; that the amount of said royalties is unknown to this defendant, and this defendant is informed and believes that same will exceed $3,000.00; that this defendant is informed and believes that said complainants have received large sums of money as royalties for the composition known as “Livery Stable Blues” and that this defendant is entitled to such money so received but said complainants are unlawfully and illegally withholding the same from this defendant. And this defendant claims a full and complete discovery of all such money, property, effects and things in action, held or controlled by said complainants or any one of them, in trust or otherwise, for the benefit of this defendant. 18th- And this defendant further answering prays that each of the above named complainants shall set forth and state the nature and description of any and all contracts they have for said composition known as the “Livery Stable Blues” or the “Barnyard Blues” and shall state the amount of money that they or each of them have received from any person, company, or corporation as royalties, or otherwise, for the sale of said composition known as “Livery Stable Blues” or “Barnyard Blues.” 19th- And this defendant further answering states that he has no adequate remedy at law.

Wherefore, this defendant prays (a) That the said complainants, Max Hart, Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, each and every one of them may be required upon their several and respective corporal oaths, according to the best and utmost of their several and respective knowledge, remembrance, information, and beliefs, to full, true, direct and perfect answer make all and singular the matters and things heretofore stated and charged as fully and particularly as if the same were here again repeated and they severally thereto distinctly interrogated paragraph by paragraph, and especially that they and each one of them may set forth copies of all contracts now in existence for the publication, distribution and sale of said composition known as “Livery Stable Blues” and “Barnyard Blues” and especially that 124

they may each set forth and state the facts and circumstances attending each contract, the amount of money actually paid thereon by the person, company or corporation, with whom said contracts are made, and how and in what manner the payments were made or were to be made, and that the said complainants may also severally answer make to all allegations set forth in this answer. (b) That an injunction may be allowed against said complainants restraining them and each one of them from colleting, receiving or accepting any money or moneys on any contract with any person, firm, company or corporation as royalties or otherwise for the sale, publication or presentation of said composition known as “Livery Stable Blues” or “Barnyard Blues” until the further order of this court. (c) That a receiver may be appointed with the usual power and duties of a receiver, to collect all moneys which may be due under said contracts until the further order of this court. (d) That said complainants, and each of them, may be compelled to account either to the receiver or to this defendant for the number of copies of said composition known as “Livery Stable Blues” and “Barnyard Blues” published printed and sold by them. (e) That said complainants, their agents, solicitors and servants may be restrained and enjoined during the pendency of this action and perpetually thereafter from publishing, printing, selling or otherwise distributing said composition known as “Livery Stable Blues” and “Barnyard Blues”. (f) That said complainants may be compelled to pay said defendant such damages as he has sustained in consequence of the complainants’ unlawful acts and doings besides the costs and reasonable solicitors fees. (g) And that said defendant may have such other and further relief in the premises as may be just and equitable. And this defendant denies all and all manner of unlawful combination and confederacy, wherewith he is by the said bill charged, without this, that there is any other matter, cause or thing in the complainants’ said bill of compliant contained, material or necessary for this defendant to make answer until and not herein and hereby well and sufficiently answered, confessed, traversed and avoided or denied, is true to the knowledge or belief of this defendant; all which matters and things this defendant is ready and willing to aver, maintain and prove, as this honorable court shall direct; and prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained.

Roger Graham [signed] Fred Lowenthal [signed] Solicitors for Defendant

125

State of Illinois Count of Cook SS

Roger Graham being first duly sworn deposes and says that he is the defendant in the above entitled cause; that he has read the foregoing Answer by him subscribed and knows the contents thereof; that the matters and things in said Answer contained are to his knowledge except such matters and things as are therein stated to be on information and belief and as to those matters he believes them to be true.

Roger Graham [signed] Subscribed and sworn before me this 13th day of August, 1917 Harry P[?] [signed] Notary Public

126

Deposition of Bert Kelly

State of Illinois County of Cook As

ALBERT R. KELLY, Hotel Sherman, Chicago, Illinois, being first duly sworn deposes and says that he is a musician by occupation; that at the present time he is engaged as manager of the “House that Jack Built” in Chicago, Ills. Affiant further states that Brown’s Original Jass Band from Dixie was the first jass band to his knowledge; that Ray Lopez was the leader of this band and claims to have written the “Livery Stable Blues”; that this band broke up some time in January, 1916; that Ray Lopez during 1916 was under contract to this affiant and was working in an orchestra at Al Tearney’s Café on 35th Street, Chicago, Illinois; that Alcide Nunez, Henry W. Ragas, Dominic J. LaRocca, J.A. Stein and Edwin B. Edwards comprised a jass band that was brought to Chicago by Harry James on or about March 3, 1916 to the Schiller Café on 31st Street, Chicago, Illinois; that this affiant is informed that Alcide Nunez and J.A. Stein were the parties instrumental in forming this jass band which was known as the Original Dixieland Jass Band; that the first time this affiant heard the composition known as the “Livery Stable Blues” was in April, 1916 when the said jass band played same at the Schiller Café; that this orchestra was at the Schiller Café for about sixty days before this affiant heard the composition known as “Livery Stable Blues”; that about February, 1917 Dominic J. LaRocca, Henry W. Ragas, and Edwin B. Edwards went to New York; that Alcide Nunez signed a contract with this affiant for three years; that in April or May 1917 when the May records of the Victor Talking Machine Company were put on the market this affiant had a conversation with Alcide Nunez at which time Nunez informed him that the Victor people were making records of his composition; that this affiant asked Nunez whether or not he was the originator of this composition and he informed affiant that he originated the pony cry and they made the tune up from a tune that belonged to Ray Lopez; that he then told this affiant that Ernie Erdman wrote the introduction to the same and suggested the name “Livery Stable Blues”; that Ernie Erdman was the piano player for the entertainers at the Schiller Café at the time this jass band was playing there. Affiant further states that he went to Ray Lopez and he said it was from his composition that it was rehashed and he thereupon went to Guy Shrigley who was the piano player for this affiant; that Guy Shrigley arranged the composition from the music as played by Alcide Nunez. Affiant further states that thereupon Ray Lopez, Guy Shrigley and himself saw Mr. Graham in reference to publishing said composition which was in May, 1917; that at 127 that time a bill of sale was drawn up from Alcide Nunez, Ray Lopez, Guy Shrigley and this affiant to MR. Graham on a royalty basis of two cents (2c) a copy. Further affiant sayeth not.

Subscribed and sworn to before me this 17th day of August 1917, Albert R. Kelly [signed]

128

Deposition of Alcide Nunez

State of Illinois County of Cook As

ALCIDE NUNEZ being first duly sworn deposes and says that he is a musician by occupation and that he resides at 3133 Vernon Avenue, Chicago, Illinois; that he has been a musician for the past seven or eight years; that he is acquainted with Henry W. Ragas, Dominic J. LaRocca, Edwin B. Edwards and J.A. Stein; that this affiant, together with the aforementioned parties comprised the Original Dixieland Jass Band; that while playing the Schiller Café, Chicago, Ills., in April 1916 this affiant composed the “Livery Stable Blues” which was formerly called the “Barnyard Blues”; that Ray Lopez was the originator of the original composition, that the various members of this jass band suggested different parts and that this affiant was the originator of the pony cry; that the same evening all the members of this jass band were talking about this composition, Ernie Erdman suggested an introduction and as a matter of fact played an introduction and gave the composition the name “Livery Stable Blues” that this composition was played at the Schiller Café for a period of about a month and a half when then jass band went to work at the De L’Abbe Café at Wabash & Van Buren Streets, Chicago, Ills., for about a month, then went to Harry James’ Casino Gardens at Clark & Kinzie Streets where they played from July, 1916 until January 1917; that this affiant left the early part of January and went to work for Bert Kelly. Affiant further states that in May, 1917 his attention was called to the fact that the Victor Talking Machine Company had released a record called the ““Livery Stable Blues”; that this affiant, being one of the owners of the said original composition, went to see Mr. Kelly by whom he was employed in reference to protecting his rights; that Mr. Kelly and this affiant went to see Ray Lopez whom this affiant known as the original composer of said production; that said Kelly thereupon had Guy Shrigley, his piano player, take down this production as it was played by this affiant; that said composition was played in a private room at the College Inn, Chicago; that after same had been reduced to writing Kelly and this affiant saw Mr. Graham; that this affiant gave said Kelly full power and authority to negotiate the sale and publication of said composition. Affiant further states that he is acquainted with Dominic J. LaRocca and that he knew of his own knowledge that said LaRocca never wrote the composition known as the “Barnyard Blues”; that LaRocca plays the cornet; that he is also acquainted with Jules Cassard of New Orleans; that he knows of his own knowledge that Jules Cassard cannot read notes on a piano and cannot carry a melody.

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Affiant further states that LaRocca to the best of his knowledge and belief never wrote an original composition and never claimed to have written one. Affiant further states that he was the one who was instrumental in bringing this original Dixieland Jass Band to Chicago; that he employed the other three members in the orchestra for J. Stein; that the first time the ever played together was in Chicago at the Schiller Café. Affiant further states that he previously played with LaRocca in Jack Lane’s band at New Orleans; that this covered a period of about one year and one-half; that during that year he did not hear LaRocca ever play the composition known as the “Barnyard Blues” or “Livery Stable Blues” or any composition similar thereto. Further affiant sayeth not.

Subscribed and sworn to before me this 17th day of August, 1917 Alcide Nunez [signed]

130

Deposition of Tom Brown

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

State of Illinois County of Cook As

TOM BROWN being first duly sworn deposes and says that he lives at 3033 Vernon Avenue, Chicago, Illinois; that he is not related to the parties or interested in the outcome of the case of Max Hart, et all vs. Roger Graham, now pending in the United States District Court; that in the summer of the year 1913 he composed a composition known as “More Power Blues”; that during that time he conducted an orchestra known as Brown’s Orchestra in the City of New Orleans; that the members of said orchestra were Ray Lopez, Lawrence Shields, Wm. Lambert, Arnold Loycano and this affiant; that said composition was played in New Orleans extensively by the orchestra of this affiant; that the said Shields, this affiant is reliably informed and believes, taught the said LaRocca the composition known as “More Power Blues”; that the compositions “Livery Stable Blues” and “Barnyard Blues” are derived from the same composition known as “More Power Blues”; that the said composition known as “More Power Blues” was played at the Schiller Café, Chicago, Illinois for the first time in March or April 1916 by the Original Dixieland Jass Band; that after a few performances the same was changed by the members thereof adding certain variations, from “More Power Blues” to “Livery Stable Blues”; that said “More Power Blues” was the original composition and was changed by the Original Dixieland Jass Band in Chicago in March, 1916 to the “Livery Stable Blues” and the “Barnyard Blues”; that this affiant is the original composer of “More Power Blues” and no one has any right or claim thereto; that he never authorized or permitted Max Hart, Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony 131

Sbarbaro and Edwin B. Edwards, or any one of them to use the composition known as “More Power Blues” or any part thereof. Further Affiant sayeth not. Subscribed and sworn to before me this 9th day of September, 1917 Thomas P Brown [signed]

132

Party Agreement

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

It is hereby stipulated and agreed by and between the parties to the above entitled cause, by their respective solicitors of record, that an order may be entered herein granting leave to the complainants to file herein instanter their answer to the counterclaim asserted against the complainants by the defendant in his answer to the bill of complaint.

Dated Chicago, Illinois September 17, 1917

ES Hartman [signed] Solicitor for Complainants

Fred Lowenthal [signed] Solicitors for Defendant

133

Notice of Defendant’s Motion to Dissolve Injunction

To E.S. Hartman Attorney for Complainants

You are hereby notified that on Monday, the 24th day of September, 1917 at ten o’clock A.M., or as soon thereafter as counsel can be heard, we shall appear before his Honor, Judge Carpenter, in the room usually occupied by him as a court room in the Federal Building, in the City of Chicago, County of Cook and State of Illinois, and move the court to dissolve the injunction heretofore granted and issued in the above entitled cause and for the grounds of said motion, show to this court the following that is to say, First, There is no equity on the face of the said bill. Second, The material allegations of said bill are denied by the defendant’s answer and the affidavits filed herewith. Third, The said complainants have been guilty of laches in filing their bond and prosecuting said suit. At the same time we shall ask for an injunction against complainants restraining them from collecting any moneys from the Victor Talking Machine Company or any other company in accordance with the prayer set forth in said answer of the defendants. At which time and place you may appear if you see fit, etc.

Fred Lowenthal Atty. for Defendant Received copy of foregoing notice together with copy of affidavit thereto attached this 21st day of September 1917

134

Plaintiff’s Counterclaim

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

These repliants, Max Hart, Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, replying to those portions of said defendant’s answer to the bill of complaint herein setting up or asserting counterclaim against these complainants, for replication thereunto say:

1. That they deny that the said musical composition known as the “Barnyard Blues” was not the original conception and invention of said Dominic James LaRocca, and these repliants deny that Ray Lopez was the originator and composer of said composition known as the “Barnyard Blues”, and that said Lopez and Alcide Nunez, or either of them, are originators and composers of said composition. 2. These repliants further said that they are without knowledge as to what the said Alcide Nunez, Ray Lopez, Bert Kelly and Guy Shrigley, or any or either of them, are the owners, composers or originators of said composition known as “Barnyard Blues.” 3. And these repliants further deny that said Nunez and Lopez wrote, arranged or composed said composition known as the “Barnyard Blues.” 4. These repliants further replying, deny that the repliants LaRocca was at any time a number of the same orchestra with the said Ray Lopez, and these replants allege that said Nunez was for a period of about six months in the year 1917 a member of the orchestra known as the “Dixieland Jass Band”, of which said LaRocca was also a member; but these repliants say that the said composition known as the “Barnyard Blues” had been conceived originated and composed by said LaRocca long before said Nunez became a member of said orchestra, and that said composition the “Barnyard Blues” was played by said orchestra with the 135

permission of said LaRocca; and these repliants deny that said LaRocca was taught said composition “Barnyard Blues”, or any part thereof by the said Nunez. 5. These repliants further replying, deny that said defendant has any right, power or authority from any source whatsoever to publish the composition known as the “Livery Stable Blues”; and denies that said Nunez and Lopez or either of them are the authors thereof, or any part thereof. 6. These repliants deny that said composition known as “Barnyard Blues”is an infringement on the said composition known as the ““Livery Stable Blues”,” and, on the contrary, allege that said composition published by the defendant under the title of “Livery Stable Blues” is an infringement on the composition known as the “Barnyard Blues”. 7. These repliants further replying, deny that said Ray Lopez was author and composer of said composition known as “Barnyard Blues”, and deny that the same was composed by him in 1915, or at any other time. These repliants deny that said Nunez originated the “pony cry” accompaniment to said composition, and that said Ernie Erdman wrote the introduction of the said composition published by the defendant under the title of the “Livery Stable Blues”. 8. These repliants further replying say that they are informed and believe that said Guy Shrigley did reduce the said composition “Barnyard Blues” to writing, during or about the month of May, 1917, and that the said composition so reduced to writing by said Shrigley did eventually come to the possession of said defendant; and these repliants, on information and belief, allege that said Shrigley made his writing of said composition from hearing the same played upon a record of the Victor Talking Machine Company about May, 1917; that the said record had been made by said Victor Talking Machine company pursuant to a license given to the said Company by complainants so to do, and that the music from which such record had been made by said Company was played by said complainants Ragas, LaRocca, Shields, Sbarbaro and Edwards; that said musical composition when first conceived, composed and written by said LaRocca was entitled “Livery Stable Blues” and was so called by his; that subsequently the title of said musical composition as changed by LaRocca to “Barnyard Blues”. And said composition was copyrighted under said title of “Barnyard Blues”; that, when said composition was reproduced by said Victor Talking Machine Company upon a record serving to mechanically reproduce the same, it was so reproduced by the said Victor Talking machine Company under the title of “Livery Stable Blues””; and these repliants say that it is true that they have a contract with said Victor Talking Machine Company to make and sell records under the title of “Livery Stable Blues” of the said composition copyrighted as aforesaid under the title of “Barnyard Blues”, and that said Victor Talking Machine Company has sold a number of records of the said composition. 9. These repliants further answering admit that defendant in 1917 published a musical composition entitled “Livery Stable Blues” for piano and other musical instruments, and that the said defendant has sold copies of said composition, and that the said defendant has sold copies of said composition, and that the sale of

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said composition has been of profit to said defendant, and these repliants allege that said composition so published and sold by said defendant is the same composition, a copy of which is attached to the bill of complaint as “Exhibit C”; and that said composition so published by the defendant is taken and copied from complainants’ musical composition entitled “Barnyard Blues”, a copy whereof is attached to said bill of complaint, marked “Exhibit B.” 10. These repliants further replying say that they are without knowledge as to whether said defendant is and at all times has been a citizen of the United States. 11. These repliants further replying deny that the music in the composition published by the defendant under the title of “Livery Stable Blues” is not the same or identical with that of complainants’ musical composition “Barnyard Blues”; and these repliants allege that theme and melody in said two compositions are identical. 12. These repliants deny that they took the composition known as “Barnyard Blues” from any composition played by said Lopez or Nunez, or either of them, are the originators or composers or authors of said composition published by said defendant under the title “Livery Stable Blues”; and these repliants deny that said LaRocca, Ragas, and Edwards, or either of them, played said “Barnyard Blues” for the first time or at any time, under the instruction or direction of said Nunez and Lopez, or either of them. 13. These repliants further replying say that they have no knowledge in regard to whether said Bert Kelly, Nunez, Lopez and Shrigley have sold, assigned, transferred and set over to the defendant all their right, title, and interest in and to the said composition known as “Livery Stable Blues”, but these repliants say that neither said Kelly, Nunez, Lopez, or Shrigley ever had, or now have, any ownership, right, title, or interest in or to said composition known as “Livery Stable Blues”. 14. These repliants further replying admit that they are musicians by occupation, but these repliants deny that they are not financially responsible. 15. These repliants further replying deny that defendant has any right to a discovery of contracts, if any, which may have been made by these repliants for mechanical musical instruments and other mechanical machines in connection with said musical composition known as “Barnyard Blues” or the “Livery Stable Blues” and these repliants deny that defendant is entitled to any discovery in respect to any money, property or effects that may have been received by these repliants, or any of them, in connection with said musical composition. 16. These repliants further relying deny that said defendant is entitled to any of the relief prayed for in his answer, and deny all, and all manner of unlawful combination and confederacy wherewith they are by said answer charged, without this, that any other matter or thing whatsoever in the said answer contained, material or effectual in law to be replied unto, and not herein and hereby well and sufficiently replied unto, confessed and avoided, traversed or denied, is true; all of which matters and things these repliants are and will be

137

ready to aver and prove, as this honorable court shall direct, and humbly pray, as in and by their said bill of complaint they have already prayed.

Max Hart Henry W. Ragas Dominic James LaRocca Lawrence Shields Anthony Sbarbaro Edwin B Edwards EB Hartman, solicitor for complainants [signed]

138

Notice of Plaintiff Collecting Depositions

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

Fred Lowenthal, Esq., 109 H. Dearborn St., Chicago, Illinois, Solicitor for Roger Graham Defendant in the above entitled cause:

Dear Sir:

You are hereby notified that on Friday, September 28, 1817, beginning at the hour of ten o’clock in the forenoon, at the office of Nathan Burkan, No. 165 Broadway, New York, New York, before Rae Hartman, a Notary Public in and for the County of New York in the State of New York, or some other officer authorized by law to take depositions in such cases, the complainants in the above entitled cause will proceed to cause to be taken the depositions on oral interrogatories of Max Hart, Henry W. Ragas, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards; all of said five last named parties residing in said County of New York, to be read in evidence on the trial of the above entitled cause on the part of the complainants therein; at which time and place above mentioned for the taking of such depositions you can appear and cross examine the said witnesses, or any of them, if you shall see fit so to do. The notice heretofore on September 19, 1917, served on you of intention to take the depositions of the above named witnesses at the place above named on Wednesday September 26, 1917, is hereby withdrawn and cancelled.

139

Chicago, Illinois, September 22, 1917.

ES Hartman [signed] Solicitor for Complainants

Received a copy of the foregoing notice at Chicago, Illinois, this 22nd day of September, 1917. Fred Lowenthal [signed] Solicitor for Defendant.

140

Notice of Plaintiff Collecting Depositions

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

Fred Lowenthal, Esq., 109 H. Dearborn St., Chicago, Illinois, Solicitor for Roger Graham Defendant in the above entitled cause:

You are hereby notified that on Friday, September 28, 1917, beginning at the hour of ten o’clock in the forenoon, at the office of Nathan Burkan, No. 165 Broadway, New York, New York in the State of New York, or some other officer authorized by law to take depositions in such cases, the complainants in the above entitled cause will proceed to cause to be taken the depositions on oral interrogatories of Lew Josephs, Lee O. Smith, Theodore Morse, Raymond Hubbell and Victor Herbert: all of said five last named parties residing in said County of New York, to be read in evidence on the trail of the above cause on the part of the complainants therein; at which time and place above mentioned for the taking of such depositions you can appear and cross examine the said witnesses, or any of them, if you shall see fit so to do.

Chicago, Illinois, September 25, 1917. ES Hartman [signed]

141

Notary Verification of Depositions

Solicitor for Complainants. New York, September 1917 The proofs for plaintiff taken before RAE HARTMAN, Notary Public, in and for the county and State of New York, at her office, #168 Broadway, Borough of Manhattan, City, County and State of New York, on the 28th day of September, 1917, at 10 A.M. pursuant to the annexed notice and in accordance with the provisions of Sections 43, 664 and 865 of the revised statutes of the United States and the Equity Rules of the Supreme Court of the United States for cause in Equity.

PRESENT: NATHAN BURKAN, Attorney for Plaintiffs HARRY MUNNS, Attorney for defendant

142

Notice of Collecting Deposition for Plaintiff

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

Fred Lowenthal, Esq., 109 H. Dearborn St., Chicago, Illinois, Solicitor for Roger Graham Defendant in the above entitled cause:

You are hereby notified that on Monday, October 1, 1917, beginning at the hour of ten o’clock in the forenoon, at the office of Joseph Sinai, Room 721 Hibernia Building, New Orleans, Louisiana, before Benjamin Y. Wolf, a Notary Public, or some other officer authorized by law to take depositions in such cases, the complainants in the above entitled cause will proceed to cause to be taken the deposition of Jules Cassard, who resides in said City of New Orleans, to be read in evidence on the trial of the above entitled cause on the part of the complainants therein; at which time and place above mentioned for the taking of such deposition you can appear and cross-examine the said witness if you shall see fit so to do.

Chicago, Illinois September 24, 1917 ES Hartman [signed] Solicitor for Complainants.

143

Received a copy of the foregoing notice at Chicago, Illinois, this 24th day of September,1917. Fred Lowenthal [signed] Solicitor for Defendant.

144

Deposition of Jules Cassard

The deposition of Jules Cassard of the City of New Orleans, in the Parish (County) of Orleans and State of Louisiana, a witness of lawful age, produced cautioned, sworn, and examined upon his corporeal oath, on Monday, October 1, 1917, at the hour of ten o’clock in the forenoon, at the office of Joseph Sinai, Room 721 Hibornia Building, in the city of New Orleans, in the Parish (County) of Orleans and State of Louisiana, by me, a Notary Public in and for said Parish (County) of Orleans, duly named, designated and appointed in and by the notice hereto attached of the examination and taking of the deposition of said Jules Cassard as a witness in a certain suit and matter in controversy now pending and undermined in the District Court of the United states, for the Northern district of Illinois, eastern Division thereof, on the equity side thereof, wherein Max Hart, Henry W. Ragas, Dominic James LaRocca, Lawrence shields, Anthony Sbarbaro and Edwin B. Edwards are plaintiffs, and Roger Graham is defendant, in behalf of the said plaintiffs, upon such oral interrogatories and cross-interrogatories as might be propounded to the said witness, Jules Cassard, on behalf of the said plaintiffs or on behalf of the said defendant. The following persons appeared before me at the taking of said deposition, to-wit: Jules Cassard, the said witness: And Joseph Sinai, an attorney at law of New Orleans, Louisiana representing the said plaintiffs on the taking of said deposition. The Said Jules Cassard, being first duly cautioned and sworn by me as a witness in the said cause, previous to the commencement of his examination, to testify the whole truth, as well on the part of the plaintiffs as the defendant, in relation to the matters in controversy between the said plaintiffs and defendant, so far as he should be interrogated, testified, and deposed as follows:

Direct Examination by Joseph Sinai, Esquire. Interrogatory First: Please state your name, age and present residence. Answer: Name, Jules Cassard; age, twenty-four years; present residence, 60# ST. Andrew Street, New Orleans.

Interrogatory Second: How long have you resided at your present place of residence? Answer Six months, the eighteenth of this month, past.

Interrogatory Third: State whether your present place of residence is a greater distance than one hundred miles from the city of Chicago, Illinois. Answer: Yes, sir, about nine hundred miles’ distance.

Interrogatory Fourth: What is your business, or profession? 145

Answer: Musician.

Interrogatory Fifth: What musical instrument or instruments do you perform upon, professionally or otherwise. Answer: Trombone.

Interrogatory Sixth: Any other? Answer: Piano, alto, drums, bass, guitar.

Interrogatory Seventh: Are you acquainted with Dominic James LaRocca, one of the complainants in the cause in which this deposition is being taken? Answer: Yes, sir.

Interrogatory Eighth: How long have you been acquainted with said LaRocca? Answer: About seven years.

Interrogatory Ninth: State whether you and the said LaRocca have played together, or in combination, on musical instruments: Answer: We have.

Interrogatory Tenth: State, then when and where, and during what periods you have so played. Answer: We played all over, you see, all different places; never had any steady place; we played for dances all over.

Interrogatory Eleventh: In what towns? Answer: Right here in New Orleans.

Interrogatory Twelfth: Any other city? Answer: No other city at all.

Mr. Sinai: I now produce a manuscript copy of a musical composition entitled “Barnyard Blues,” and ask the Notary Public before whom this deposition is being taken to identify the same by an appropriate notation thereon, as “Exhibit A” to be attached to the deposition of Jules Cassard now being taken. Benjamin Y Wolf: I, the Notary Public before whom the deposition Jules Cassard is now being taken, have, at the request of counsel, marked the said manuscript copy of said musical composition entitled “barnyard Blues” produced by counsel, for the purpose 146 of identification thereof, by writing thereon the following: “Exhibit A to deposition of Jules Cassard, taken before me October 1, 1917, in the suit of Hart et al. vs. Graham; Benjamin Y. Wolf, Notary Public.”

Mr. Sinai resuming examination of the witness:

Interrogatory Thirteenth: I direct your attention to the manuscript copy of musical composition which has just been produced and marked for identification by the notary public, and ask you if you have examined the same. Answer: Yes, sir.

Interrogatory Fourteenth: State whether you have played or had played in your hearing the music written on said manuscript copy. Answer: I have. Interrogatory Fifteenth: State how recently you have played, or had played in your hearing, the music written on the said manuscript copy. Answer: Last night.

Interrogatory Sixteenth: Are you familiar with the music written on the said manuscript copy? Answer: Yes, sir.

Interrogatory Seventeenth: Did you ever hear the music which is written on said manuscript copy before you played it, or had it played in your hearing, from said manuscript copy? Answer: Yes, sir.

Interrogatory Eighteenth: When, and where, and under what circumstances did you first hear the musical composition, which is written on said manuscript copy? Answer: First, we started this thing in the morning, and we played it at night.

Interrogatory Nineteenth: When was that? Answer: I don’t know exactly the date that was.

Interrogatory Twentieth: How long ago? Answer: It was in the latter part of the summer of 1914.

Interrogatory Twenty-first: with whom did you play it --- whom do you mean by “we”? Answer: I and Dominic James LaRocca. 147

Interrogatory Twenty-second: Under what circumstances did you so play said music as shown on the manuscript copy you have? Answer: We never had it written, we just used to play it around dances.

Interrogatory Twenty-third: By “we” you mean whom? Answer: Dominic James LaRocca and myself.

Interrogatory Twenty-fourth: That was during the summer of 1914? Answer: Yes, sir.

Interrogatory Twenty-fifth: State whether you at any time heard anyone composing the musical composition which is written on said manuscript copy. Answer: I heard Mr. LaRocca; no one else.

Interrogatory Twenty-sixth: Where did you hear M. LaRocca composing it? Answer: At his residence in the city of New Orleans, during the summer of 1914.

Interrogatory Twenty-seventh: State what, if anything, said Dominic James LaRocca, to your personal knowledge, had to do with the originating and composing of the musical composition written on said manuscript copy. Answer: Everything; he composed it.

Interrogatory twenty-eighth: State whether you know who originated and composed the music of said musical composition which is written on said manuscript copy. Answer: I know Dominic James LaRocca composed it.

Interrogatory twenty-Ninth: When and where did you first see a manuscript copy of the said original composition? Answer: In Chicago, in 1916, last year.

Interrogatory Thirtieth: In whose possession did you see that manuscript copy? Answer: I the possession of LaRocca, who was playing with Edwards and the other boys with whom he was playing in the Jass band at that time- the Dixieland Jazz Band.

148

Interrogatory Thirty-first: Do you know who wrote the manuscript copy which you have just said that you first saw in Chicago in the possession of Dominic James LaRocca, who was then playing with the Dixieland Jass Band? Answer: No.

Interrogatory Thirty-second: When you say that you don’t know who wrote the manuscript copy that you first saw in Chicago, do you mean you don’t know who actually wrote the score on the paper? Answer: Yes, sir.

Interrogatory Thirty-third: You have stated that you know that Mr. Dominic James LaRocca composed the music indicated on the exhibit which is identified here with your testimony. Is that a fact? Answer: Yes, sir.

Interrogatory Thirty-fourth: And that you heard the music and practiced the same with him at his residence in New Orleans in 1914. You can’t be mistaken about that? Answer: No, sir, I cannot.

Interrogatory Thirty-fifth: Then you are absolutely certain and positive in your statement that Mr. Dominic James LaRocca composed the music as indicated on Exhibit A attached to those interrogatories? Answer: Yes, sir.

Interrogatory Thirty-sixth: Now, when you say you don’t know who wrote the manuscript copy which you first saw in Chicago, you mean that you were not present and did not see the person writing the music on the particular manuscript which you saw? Answer: Yes, sir.

Interrogatory Thirty-seventh: Did you ever hear the musical composition, copy of which you have identified and in question, played prior to the year 1914? Answer: Yes, I heard it played by LaRocca and myself, as stated above, but by no one else.

Interrogatory Thirty-Eight: Then you are perfectly satisfied in your own mind, who composed and originated the musical composition, copy of which you have just identified? Answer: Yes, sir.

149

Interrogatory Thirty Ninth (39th): And that was who? Answer: Dominic James LaRocca.

I, Benjamin Y. Wolf, a Notary Public in and for the Parish (County) of Orleans in the state of Louisiana, duly named and designated and appointed in and by the notice hereto attached to take the deposition of the said Jules Cassard, a witness, whose name is subscribed to the foregoing deposition, hereby certify that previous to the commencement of the examination of said Jules Cassard as witness in the said suit between said Max Hart, Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro, and Edwin B. Edwards, plaintiffs, and the said Roger Graham, defendant, he was duly cautioned and sworn by me as such Notary Public to testify the whole truth in relation to the matters in controversy between said Max Hart, Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro, and Edwin B. Edwards, plaintiffs, and the said Roger Graham, defendant, so far as he should be interrogated concerning the same; that the said deposition was taken at the office Joseph Sinai, Room 721 Hibernia Building, in the City of New Orleans, Parish (County) of Orleans and State of Louisiana, on the first day of October, 1917, beginning at the hour of ten o’clock in the forenoon, and continuing without interruption until the same was completed; and, after such deposition as taken by me as aforesaid, the interrogatories and answers thereto as written down were read over to the said witness, and thereupon the same was signed and sworn to by the said deponent Jules Cassard, before me, the oath being administered by me, at the place and on the day last aforesaid. And I do hereby further certify that the manuscript copy of the musical composition entitled “Barnyard Blues,” which is attached to this deposition and marked by me as follows: “Exhibit A to Deposition of Jules Cassard, taken before me October 1, 1917 in the suit of Hart et al. vs. Graham, Benjamin Y. Wolf, Notary Public” is the identical manuscript copy produced on the taking of said deposition by Joseph Sinai, Esquire, the attorney who conducted the examination of said witness, Jules Cassard, on behalf of the plaintiffs in said suit, on then marked by me as aforesaid. I further certify that I am not of counsel, or attorney to either of the parties to the suit above referred to wherein said deposition was taken, nor interested in the event of said cause.

I hereby further certify that the cause of taking of said deposition of said Jules Cassard is that the said witness, Jules Cassard, lives in the city of New Orleans, in the State of Louisiana, and that the said City of New Orleans is a greater distance than one hundred (100) miles from the city of Chicago, Illinois, the place of trial of the aforesaid cause. Benjamin Wolf, Notary Public [signed] 150

Examination of Raymond Hubbell

Raymond Hubbell, a witness produced on behalf of the plaintiffs, having first been duly cautioned and sworn in answer to interrogatories propounded by counsel, testified as follows:

Direct examination by Mr. Burkan:

Q. What is your full name? A. Raymond Hubbell.

Q. Where do you reside? A. Rockville Centre, Long Island, New York.

Q. What is your profession? A. Musician and composer.

Q. How old are you? A. 30.

Q. How long have you practiced your profession? A. Since 1900.

Q. Have you composed the music of any plays? A. Yes.

Q. What plays? A. Fan Tan, A Mexicans, Midnight Sons, The Jolly Bachelors, four or five Ziegfeld Follies shows, the last three Hippodrome shows. I am also the composer of “Poor Butterfly.”

Q. Are you now connected with any place of public entertainment? A. Yes, with the New York Hippodrome as a musical director.

Q. What training did you have? A. The usual training that anybody ahs that takes up the profession of music.

Q. What is that? A. I studied and worked. 151

Q. Did you at my request compare plaintiff’s Exhibit A and Plaintiff’s Exhibit B for identification? A. Yes, I did.

Q. Will you please give us the results of your comparison? A. Well, the only difference in them is technical. The scheme of notation is different. The theme is almost identical, one is written in what we call four-four time in music, and the other is written alle breve. The foundation of the two compositions I should say is identical.

Q. And what would you say in respect to the melody of both compositions? A. I see very little difference. What difference there is is technical.

Q. When played would the effect produced upon the ear be the same or different? A. Almost the same I should think.

Q. In other words, they are substantially alike? A. I should say yes.

No Cross-Examination.

Sworn to before me this 2nd day of October, 1917, Rae Hartman, Raymond Hubbell [signed]

152

Examination of Louis Joseph

Louis Joseph, A witness produced on behalf of the plaintiffs, having been duly sworn in answer to interrogatories propounded by counsel, testified as follows:

Direct Examination by Mr. Burkan:

Q. What is your full name? A. Louis Joseph, professionally known as Frisco.

Q. Where do you live? A. I live at the Longacre Hotel, New York City.

Q. Do you know Ray Lopez? A. Yes, sir.

Q. When did you become acquainted with him? A. Four years ago at New Orleans.

Q. What were you doing at the time? A. I was one of a dancing team, dancing at a public restaurant known as Farbarchers Restaurant in New Orleans.

Q. Where was Lopez employed at that time? A. Playing in private entertainments advertising the ball games and things like that. He was advertising scraps, prize fights.

Q. Was he a member of any band at that time? A. Yes, sir. He was a member of Brown’s Band.

Q. How frequently did you hear this Brown’s Band of which Lopez was a member play? A. During my stay in New Orleans the year of 1913 in November, the latter part of November. The band had played for me at the Young Men’s Gymnasium when I was entertaining there for an evening. Brown’s Band played for me.

Q. Where were you employed in April, 1915? A. Lamb’s Café, in Chicago, Ill.

153

Q. In what capacity? A. I was doing an act called a “Charlie Chaplin Imitation,” what they call a Jass Dance.

Q Where was Lopez employed at that time? A. Lopez was in that Café employed with Brown’s Band in the orchestra. He used to play my music every night.

Q. What instrument did he play? A. He plays the cornet.

Q. How long did you continue your engagement at the Lamb’s Café? A. Until the latter part of August, 1915 until the place was closed for repairs for three weeks.

Q. And during that entire time did Lopez continue to be a member of the band? A Yes, sir.

Q. Playing nightly at that establishment? A. Yes, sir.

Q. What character of music did this band play nightly at this establishment? A. So called Jass music.

Q. Are you familiar with a composition known as “Livery Stable Blues”? A. Yes, sir.

Q. During all the times that you heard Brown’s Band playing music to advertise prize fights, did you ever hear the band play “Livery Stable Blues”? A. No sir.

Q. During all the times that you were employed at the Lamb’s Café from April, 1915 until the end of August 1915, did you ever heard Brown’s Band play The “Livery Stable Blues”? A. No, sir.

Q. Or any composition that sounded like it? A. They played a piece called “Cake Walk Ball” that sounded a little like it. That is published and has been out a long time. Mr. Munns: I move that the last part of the answer be stricken. 154

Q. When did you ever for the first time in your life hear the number “Livery Stable Blues” played? A. At the Phonograph Company for the first time.

Q. On the phonograph? A. Yes.

Q. When was that? After it has been published or before? A. I heard it played at the Schiller Café, Chicago, I did not then know its name.

Q. When? A. That was in the year 1916.

Q. Do you remember the month? A. No.

Q. Was it may? A. between March and June, 1916.

Q. Were you personally acquainted with Lopez? A. Yes, sir.

Q. Did you ever talk with him? A. Yes, sir.

Q. How frequently? A. Almost every day, when I was employed at the Lamb’s Café.

Q. Did he ever have any conversation with you concerning the authorship or origin of the “Livery Stable Blues”? Mr. Munns: I object to the question as leading. A Yes, sir, we had an argument.

Q. What was it? A. Concerning the piece, that it had been published as a song with his name on it. I had a conversation with him concerning he didn’t have nothing to do with the piece.

155

Q. When was it? A. After May, 1917.

Q When was the conversation? Mr. Munns: I object to any conversation between Lopez and this witness outside the presence of Roger Graham. A. The talk was that I told him that he had nothing to do with the “Livery Stable Blues”, and I says, these boys in New York, I says, that is no way to do for some people to take it away from the boys in New York. We had an argument over “Livery Stable Blues” and he sat down in the chair and didn’t say anything.

Q. Did he in your presence and hearing ever state to you or to anyone that the “Livery Stable Blues” was from a composition of his and that it was re-hashed? Mr. Munns: I object to that question as being leading and move that it be stricken. A. No, he didn’t say anything like that.

Q. Did he at any time in your presence and hearing say to you or to any other person that he was the originator of the original composition upon which “Livery Stable Blues” was based? Mr. Munns: Same objection. A. No.

Q. Did he ever say in words or in substance in your presence and hearing, to you or to any other person that he was the author of the original composition from which “Livery Stable Blues” was taken? Mr. Munns: Same objection. A. No.

Q. Did he ever say to you or to anyone else in your presence or hearing in words or substance that he was the original composer of the “Livery Stable Blues”? Mr. Munns: Same objection. A. He told me he was. He told me he was.

Q. Was that before or after “Livery Stable Blues”. “Plaintiffs’ Exhibit B” was published? A. That was after the song was published.

Q. And was that after May 12, 1917? A. Yes.

156

Q. But before the publication of plaintiff’s Exhibit B did Lopez ever in your presence or hearing say to you or any person that he was the original composer of “Livery Stable Blues”? Mr. Munns: I object to the question as being leading. A. No.

Cross-examination by Mr. Munns:

Q. Are you acquainted with a composition entitled “More Power Blues”? A. no.

Q. Never heard it? A. No.

Q. Did you ever hear Brown’s orchestra play the composition “More Power Blues”? A. No, sir.

Q. How many times a night did you perform at Lamb’s Cafe? A. Two times a night, sometimes three.

Q. How long did your act take? A. About three minutes or four minutes.

Q. And Brown’s orchestra would play the music? A. yes.

Q. And then where would you go? A. I went no where, I was always in the Café.

Q. And how long were you in the cafe, give us the hours, 8 to 1? A. From 8 o’clock until closing time.

Q. And you would just sit around the tables with the different guests? A. Yes.

Q. About how many times an evening would this band play the “Cake Walk Ball”? A. Once.

Q. Once every night, or would it be played more than once on some nights? 157

A. They might play it by request, twice, sometimes twice, tree times at most. No, about twice at most.

Q. Did you ever hear this “Cake Walk Ball” at New Orleans? A. No.

Q. When and where was the first time you ever heard it? A. The “Cake Walk Ball”?

Q. Yes. A. The first time I ever heard it was at the Lamb’s Café.

Q. When was that? A. That was in June.

Q. 1916? A. Yes. May or June, 1916.

Q. Did you ever hear any other composition other than “Cake Walk Ball” that was similar to “Livery Stable Blues” or Barnyard Blues? A. Never in there.

Q. How long were you in New Orleans? A. About 16 weeks or 17 weeks.

Q. In the one year? A. Yes.

Q. Was there any one present at the various times you had your conversations with Mr. Lopez? A. No.

Q. Just you and he alone? A. Yes.

Q. He didn’t answer you the first time in your first conversation at all? A. No.

158

Q. The first conversation he didn’t answer you at all, when you had the first conversation? A. Surely he answered me.

Q. Before you testified you made a statement and he didn’t answer you, he just sat down? A. At first he did.

Q. What did he say at first? A. He said he had some piece he put out a long time ago that was his. That is all he said.

Q. What did you say to that? A. I didn’t say anything. He said that was his piece and he had it a long time ago.

Q. Is this the first conversation? A. That was the second.

Q. Is this conversation which you just testified to, the substance of the conversation you had before May, 1917? That was the conversation you had after the song came out? A. Yes, on the phonograph.

Q. When as the first conversation you had with him? A. The first conversation I had with him was concerning the song after it came out in music, but it was on the phonograph before that.

SWORN to before me this 2nd day of October, 1917 Rae Hartman Mr. Louis Joseph [signed]

159

Deposition of Theodore Morse THEODORE F. MORSE, a witness produced on behalf of the plaintiffs, having first been duly cautioned and sworn in answer to interrogatories propounded by counsel, testified as follows: Mr. Munns: I move that all the witnesses be excluded.

DIRECT EXAMINATION BY MR. BURKAN:

Q. Mr. Morse, where do you live? A. #351 Wadsworth Avenue, New York City.

Q. What is your profession? A. Songwriter, writer of music arranger of music.

Q. What musical education have you had? A. Practical education, experience always in this business many, many years. I never knew any other business.

Q. Have you written any compositions? A. Yes, sir, very many.

Q. What compositions have you written? A. Names or character?

Q. Give me the names. A. Blue Bell.

Q. That had a scale of how many copies? A. One million and a half. “Mother.”

Q. That had a sale of how many copies? A. The same.

Q. Over a million copies? A. Yes, sir.

Q. What else? About how many others? A. Four or five hundred compositions varied in success.

160

Mr. Burkan: I ask to have marked for identification the sheet music purporting to be plaintiffs’ composition “Barn-yard Blues.”

[The sheet music marked “Plaintiff’s Exhibit A” for identification]

I will ask to have marked for identification the sheet music purporting to be published by the defendant. The sheet is marked “Plaintiff’s “Exhibit B” for identification.

[The sheet music marked “Plaintiff’s Exhibit B” for identification]

Q. I show you plaintiff’s Exhibit A for identification and plaintiff’s Exhibit B for identification d ask you to compare both compositions and tell me whether they are similar or dissimilar? A. These are almost identical. Harmony, rhythm and figures, you know what I mean, practically the same compositions both of these. Therefore little changes, for instance, so slight they don’t affect the difference. Mr. Munns: I object to the question of the quietness and that part of his answer be stricken out.

Q. Are they similar or dissimilar in respect to the melody? A. Similar. Mr. Munns: I object to the last question as calling for a conclusion and asking that this be stricken out.

Q. Are they similar or dissimilar with respect to the harmony. A. Similar. Mr. Munns: Same objection.

Q. Are they similar with respect to rhythm? A. Similar.

Q. Will you please state what you find upon a comparison of these two compositions? A. The introduction is identical as to harmony, rhythm, and only slightly changed in melody in the third bar. The first strain is practically identical and also the second and third strain. I think that those two numbers could be played at the same time and no difference would be noted that they were different compositions. Mr. Munns: I object to the last part of the answer and ask that it be stricken out as not responsive to the question and as a conclusion of the witness. 161

Q. But the compositions are substantially identical in respect to harmony, melody, and rhythm? A. Yes, sir. Mr. Munns: Same objection.

Cross-Examination By Mr. Munns:

Q. By whom are you employed? A. Leo Feist & co.

Q. When was the first time you saw a copy of “Barnyard Blues”? A. The first time I saw a copy of this was about two or three weeks ago.

Q. Who is the publisher of that composition? A. Leo Feist.

Q. That is your employer? A. Yes.

Q. When was the first time you saw a printed copy of “Livery Stable Blues”? A. Well, this is the first time. [showing witness plaintiff’s Exhibit B for identification] This is the first time I ever saw this piece. I saw an orchestral arrangement of the song about eight weeks ago.

Q. How many bars after comparing the two compositions are different? A. There are many of them different in notes, you know what I mean, slight notes, but practically identical, as I said before, in rhythm, harmony and melody.

Q. Can you tell, Mr. Morse, how many bars in the whole composition are different? A. That are not identical?

Q. Yes. A. Well nearly every bar is identical in melody but different in harmony.

Q. What do you mean by different in harmony? A. That you can take the same note and strike a different chord, but it would sound the same, but not be written the same. The notes may not be the same, the notes are placed differently, which occurs in music. 162

Q. Have you ever heard any other composition similar to “Livery Stable Blues” or Barnyard Blues? A. I have heard similar styles of compositions, yes.

Q. Can you give the names of these compositions? A. When I say I heard other kinds of Blues, there has been Home Sickness Blues, there is a certain style of composition we call Blues.

Q. Then your opinion as an expert, it is your opinion that all blues have the same theme? A. No.

Q. Did you ever hear of the composition “More Power Blues”? A. No.

Q. At whose request did you testify to-day? A. These boys, Mr. LaRocca, I believe.

Q. Did you appear at the request of Mr. Hart or Mr. Bittner? A. No.

Swore to before me this 2nd day of October, 1917, Rae Hartman, Theodore F Morse, [signed]

163

Deposition of Lee Orean Smith

LEE OREAN SMITH, a witness produced on behalf of the plaintiffs, having first been duly cautioned and sworn in answer to interrogatories propounded by counsel, testified as follows:

Direct Examination by Mr. Burkan:

Q. What is your full name? A. Lee Orean Smith

Q. Where do you reside Mr. Smith? A. #44 Fairview Avenue, Yonkers, N.Y.

Q. What is your profession? A. Musical editor.

Q. How long have you been engaged in that profession? A. About six years.

Q. How old are you? A. 43 years.

Q. What musical training have you had? A. I had home education for about six or eight years and two years in a Conservatory.

Q. Which conservatory? A. DePauw University.

Q. What musical art did you study at the university? A. All branches, theory, harmony, composition, piano and violin.

Q. Have you composed any music? A. About four or five hundred numbers

Q. Have they been published? A. The majority of them, yes.

164

Q. I show you plaintiff’s Exhibit A for identification and plaintiffs’ Exhibit B for Identification and ask you to compare them and tell me the result of your comparison? A. The theoretical structure is practically the same, both as to melody, not so much identical as to harmony but the rhythmical feeling is practically identical, therefore the meter is conceived in the same strain.

Q. What similarities, if any, do you find in your comparison in respect to melody? A. The first strain after the introduction is – the tone progression is practically identical, that being what constitutes melody. There are slight variations which to the layman’s ear would be imperceptible. Mr. Munns: I move that last answer be stricken out as not responsive. (Witness Continuing) The second strain is almost identical as to the rhythm. The tone progression is slightly varied. There is no doubt in my mind that the compositions are identical. Mr. Munns: I move that answer be stricken out.

Q. Upon playing both of these compositions on a musical instrument or instruments, can you state whether or not the effect produced by such playing would be the same or different? Mr. Munns: I object to that question, because there is not shown here that this witness is an expert on that. A. Yes.

Q. Please state? A. They could be placed together with almost complete satisfaction to the ear, as regards melody. Discords would occur at points where the harmony varies.

Q. Do you play any instrument? A. Piano and violin.

Q. And how long have you played these instruments? A. About 25 years.

Q. Would substantially the same effect be produced or not by playing each of these compositions? A. It would.

Cross-Examination by Mr. Munns:

165

Q. By whom are you employed? A. Leo Feist.

Q. They are the company that are putting out Barnyard Blues? A. Yes, the publishers.

Q. In your opinion as an expert, are all Jass band compositions of the same rhythm? A. They are not.

Q. What is the resemblance between “Barnyard Blues” and “Livery Stable Blues” as to rhythm? A. They are almost identical.

Q. By that you mean the dancers would have to use the same step? A. Yes.

Q. And the fact that there is a difference of tune would not make any difference as regards the rhythm of the different compositions? A. I don’t get that.

Q. The fact that the melody is different would have no effect upon the rhythm of the song? A. Most assuredly it would.

Q. From your experience as an expert, there could be a different melody and still have the same dance step to a Jass band composition? A. That is very possible.

Q. So that most Jass and compositions are composed for the purpose of having the same rhythm in dancing rather than the same tune? A. The rhythm varies in a million different ways; in two different compositions it may vary in a thousand points, but still have the same dance step. The melody has no bearing on the dance step, the dance step is founded on a number of beats in a measure, irrespective of rhythm, meter or melody. These two compositions have the same number of beats to the measure. They are both written in common time. All common time has four beats to the measure and they are identical as to that.

Q. What difference do you find in the two compositions? A. Slight variations in tone succession which produces melody. 166

Q. Can you tell how many bars are different in the two compositions? A. A technical analysis between every identical bar, the one composition with the other, would show but in two or three instances where they both vary as to the technical construction both as to melody and rhythm.

Q. Then where they vary there would be discords when played together? A. Not necessarily, no sir.

Q. Who requested you to come hereto testify? A. Mr. LaRocca.

Q. When did he request you to come here? A. When?

Q. Yes. A. I could not give you the exact date, it was during the present week.

Q. Whereabouts were you when he asked you to come here? A. I was in the office of Leo Feist.

Q. Was Mr. Bittner present? A. No, sir.

Q. Did Mr. Bittner verify Mr. LaRocca’s request? A. No.

Q. When was the first time you saw the composition marked Plaintiffs’ Exhibit A for identification? A. The first time I saw this was in manuscript form.

Q. When? A. I believe the later part of July or the early part of August of this year.

Q. When was the first time you saw the composition “Livery Stable Blues”, marked Plaintiffs’ Exhibit B for identification? A. I saw it was probably a month or six weeks ago.

Q. Who showed you the copy? 167

A. I happened to notice it myself.

Q. Whereabouts? A. In a music store.

Q. what store? A. I don’t remember just what store, some store on Broadway.

Q. Did you at any time compare these compositions prior to to-day? A. At that time when I first saw Exhibit B for identification and having already been acquainted with Plaintiffs’ Exhibit A, the similarity of course struck me immediately. Mr. Munns: I move the last part be stricken out as not responsive.

Q. Whereabouts did you compare the two, at whose office? A. I didn’t compare them. When I saw the Exhibit B I compared it mentally as musicians do.

Q. Did you ever compare these two at any time prior to to-day? A. Not until this moment.

Q. You made an affidavit sometime in July that you compared the composition? A. You asked me if I compared it from the paper. I never compared them from the paper. I did it mentally as musicians do.

Q. When did you compare it mentally? A. At the time I saw “Livery Stable Blues.”

Q. Sometime in July? A. No, sometime six weeks ago, the middle of August maybe. It was after I had seen the composition “Livery Stable Blues.”

Q. Can you state definitely whether it was July or August that you compared it mentally or any other way? A. It was in July sometime.

By Mr. Burkan:

Q. You stated on your cross-examination that you found some difference between the two compositions? Will you please point out the difference that you referred to? 168

A. In the introduction the first variance occurs on the first phrase. The rhythm varies. The succeeding tones are identical. In the three measures of the introduction the melody has the same harmonic structure, but a different rhythmical structure. The first two measures of the first strain are practically identical, both as to harmony and melodies lightly varying in the rhythm. The harmonic construction of the third measure is practically the same, with a variance in the rhythm. That same statement would apply to each succeeding measure.

Q. Are there variances of a substantial or slight character? A. They are of a slight character.

Q. Do these variances have any effect upon the sound produced upon the playing of these two compositions? Mr. Munns: I object to the form of the question let him state as to whether they would or not. A. They would sound practically the same.

Sworn to before me this 2nd day of October, 1917 Rae Hartman Lee Orean Smith [signed]

169

Deposition of Eddie Edwards

Edwin B. Edwards, one of the plaintiffs, having been duly sworn, testified as follows:

Direct Examination by Mr. Burkan:

Q. What is your full name? A. Edwin B Edwards.

Q. Where do you reside? A. 206 West 56th Street, New York City.

Q. What is your profession? A. Musician.

Q. Are you connected with any musical organization? A. Yes.

Q. What organization? A. The original Dixie Land Jass Band.

Q. Who are the members of that band as presently constituted? A. Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro, Henry W. Ragas and myself.

Q. Prior to March, 1916 where did you reside? A. New Orleans.

Q. Were you at that time connected with any band? A. Yes.

Q. Who was the leader of that Band? A. I belonged to two or three bands, one of them was the Naval Brigade Band, and other bands.

Q. When did you leave New Orleans? A. March 2 or 3, 1916.

170

Q. Did you leave with any musical organization? A. Yes.

Q. Who were the members of that organization? A. LaRocca, Ragas, Johnny Stein, Alcide Nunez and myself.

Q. Where did this band go from New Orleans? A. Chicago. Q. You played at what particular place? A. Schiller’s Café, 31st Street.

Q. Did the band assume any name when it commenced to play the engagement at Schiller’s Café? A. Yes.

Q. What was the name? A. Stein’s Dixie Jass Band.

Q. When, if at any time, did Stein sever his connections with this band? A. Stein left the band on June 1, 1916.

Q. Where was the band playing at the time of Stein’s severance of his connection therewith? A. Schiller’s Café.

Q. Did the band continue under the same name after the 1st day of June, 1916? A. No, it was changed to the Original Dixieland Jass Band.

Q. Upon Stein’s severance of relations with this band, what persons comprised its membership? A. LaRocca, Ragas, Nunez, and Edwards, and we had to wait two weeks for Sbarbaro to come up from New Orleans. A Gentleman named Earl Carter in the meanwhile was playing the instrument that was assigned to Sbarbaro for the two weeks.

Q. When did Nunez leave the band if at any time? A. October or November, 1916.

Q. What person took Nunez’s place in the band? A. Lawrence Shields. 171

Q. From the date of Nunez leaving the band until this day what persons constitute the Original Dixieland Jass Band? A. LaRocca, Ragas, Shields, Sbarbaro and myself.

Q. How old are you? A. 26.

Q. How many years have you been a musician? A. Nine or ten years.

Q. What particular instrument do you play? A. Trombone.

Q. When for the first time in your life did you ever hear an imitation of the horse neigh played on cornet? A. In the Schiller’s Café in Chicago.

Q. What person played it? A. Nick LaRocca on his cornet.

Q. What date was that? A. In the middle part of March, 1916.

Q. Please state all the circumstances connected with LaRocca giving an imitation of a horse neigh on the cornet? A. There were several people in the Schiller’s Café and one girl in particular was evidently feeling jolly and sky-larking to the amusement of the boys in the band, which prompted LaRocca to pick up the cornet and play a horse whine on it and everybody laughed within hearing distance of it and I told him at the time - - - Mr. Munns: I object to any conversation

Q. Immediately after LaRocca gave this imitation of a horse neigh on the cornet did you have any conversation with LaRocca? A. Yes.

Q. Please state the conversation. Mr. Munns: I object to conversation outside the presence of Roger Graham.

172

A. I told him it would be a good stunt to put this horse whine in a number, and he said he had it in a number and I, of course, asked him what number it was, and he replied “A Blue number”. I told him some time we might try it and it might prove a good number to us.

Q. Has the term “blue number” a well defined meaning in the musical profession? A. Yes.

Q. What does that term mean? A. Fox-trot with a slow and lazy like yawning with no direct harmony, sort of freak harmony.

Q. And a number possessing those characteristics is defined as a “blue number” in the profession? A. Yes.

Q. Prior to this time when LaRocca gave the imitation of a horse neigh on the cornet, did you ever hear Nunez or any other person make a pony cry on a cornet or similar instrument? A. No.

Q. I show you plaintiff’s Exhibit A For identification and ask you when, for the first time in your career you ever heard that composition? A. When Nick LaRocca first played it.

Q. And in point of time when it was when he first played it? A. When I heard it in the Schiller Café, March, 1916.

Q. Was it in the early, middle, or latter part of March, 1916? A. Middle part of March.

Q. Did LaRocca play it from memory or from a sheet of music? A. From memory.

Q. Prior to that time had you ever heard that composition played by any person or persons? A. No.

173

Q. Had you ever seen it in print? A. No.

Q. Tell us the circumstances under which you heard this number played by LaRocca on the cornet? A. At the Schiller Café in Chicago in the middle of March at an early hour in the morning when there weren’t many people in the place, he went over the number and played it while we listened.

Q. When you say “we” to what person or persons do you refer? A. Nunez, Stein, Ragas and myself. He gave us an idea what to play and we went ahead and tried our best, but the number was not – we didn’t play it of course very good in the beginning.

Q. Did you rehearse the number thereafter? A. Yes.

Q. How frequently? A. Every morning until we got it down.

Q. Who, if anyone, directed the rehearsals? A. LaRocca.

Q. During those rehearsals, what if anything, did LaRocca have to do with the rehearsal? A. Gave suggestions of imitations of different animals.

Q. To be played by whom? A. To be played by the clarinet and trombone, to make his own on the cornet.

Q. What imitation did LaRocca make? A. The horse whine.

Q. What animal did you imitate? A. The donkey bray.

Q. What instrument did Nunez play? A. The clarinet.

174

Q. What animal, if any, was he to give an imitation of? A. A rooster. He was to make the rooster crow.

Q. Did you ever hear Nunez give an imitation of a horse nigh or a pony cry on any instrument at any time? A. No.

Q. The sound of what animal or animals did you ever hear Nunez imitate on any instrument or instruments? A. The dog, in a popular number “Walking the Dog.” He tried to make a rooster crow on the clarinet. Mr. Burkan: I now offer Plaintiffs’’ Exhibit A marked for identification in evidence.

[So marked.]

Q. How many days were spent in rehearsing this number? A. From seven to ten days.

Q. At the conclusion of the rehearsals, at the expiration of this period, what if anything was done with this number? A. We played it.

Q. Where? A. At the Schiller Café in Chicago.

Q. How Frequently? A. Not frequently because the runs caused a little trouble --- Mr. Munns: I object to the latter part of the answer and ask that it be stricken.

Q. Did you ever begin to play it frequently? A. Yes.

Q. When? A. At the Casino Gardens from July on.

Q. What year? A. 1916.

175

Q. How often was it played at the Casino Gardens? A. Nightly, sometimes two or three times a night.

Q. When did the band complete its engagement at the Casino Gardens? A. January 21, 1917.

Q. And you say this number was played nightly from July 1, 1916 until sometime in January, 1917? A. Yes.

Q. From the Casino Gardens where did the band go to? A. New York.

Q. At what particular place? A. Reisenweber’s.

Q. Did the engagement at Reisenweber’s terminate or is it still on? A. Still on.

Q. State whether or not this number was played at Reisenweber’s? A. Yes.

Q. How Frequently? A. Nightly there.

Q. While this number was played at Schiller’s Café and at the Casino Gardens under what name, if any, was it known? A. “Livery Stable Blues.”

Q. Before the band came to New York in January, 1917, was this composition known under any name other than “Livery Stable Blues”? A. No.

Q. When was the name changed from “Livery Stable Blues”? A. February, 1917.

Q. To what name was it changed? A. “Barnyard Blues.”

176

Q. Please state the circumstances in connection with the changing of this title from “Livery Stable Blues” to “Barnyard Blues”? A. At the suggestion of Messrs/King and McDonald of the Victor Talking Machine Company who said at the time the title --- Mr. Munns: I object to any conversation had with anybody outside of the presence of the defendant. (witness continuing) . . . who said at the time the title may be offensive, and to change the name to Barnyard Blues.

Q. What if anything did the Victor Talking Machine Company have to do with this composition, Livery Stable Blues, the title of which you subsequently changed to “Barnyard Blues”? Mr. Munns: I object to the question, it is immaterial.

Q. I ask you what they had to do with it? A. They made a record of it.

Q. When was this record made? Mr. Munns: I object to that, it is immaterial. A. February, 1917.

Q. What person or persons made the record? Mr. Munns: Same objection. A. Shields, LaRocca, Ragas, Sbarbaro and myself.

Q. How was it made? Mr. Munns: Same objection. A. We played the number and it was recorded by the laboratory man.

Q. What person or persons acting for and on behalf of the Victor Talking Machine Company had charge of the arrangements in connection with the making of a record of this composition? Mr. Munns: Same objection. A. Mr. McDonald and Mr. King.

Q. From the first time that the band commenced to play this number until the present time was the composition played by ear or from printed sheets of music? A. By ear.

177

Q. Did you and Messrs. McDonald and King have any conversation concerning the name of this composition which you were to play for recording purposes for the Victor Talking Machine? Mr. Munns: I object to any conversation had outside of the presence of Mr. Graham and also object to the question as being immaterial. A. Yes.

Q. What was that conversation? A. Mr. King and McDonald said the title would be offensive, and to change it from “Livery Stable Blues” to “Barnyard Blues.”

Q. Was the record that the band made of this composition placed upon the market by the Victor Talking Machine Co.? Mr. Munns: Same objection. A. Yes.

Q. Under what name was it marketed? A. “Livery Stable Blues”.

Q. I show you a circular and ask you whether that was issued by the Victor Talking Machine Company in connection with the marketing of the records made by you of this composition? A Yes. Mr. Munns: I object to that, it is immaterial. Mr. Burkan: I offer it.

[Received, Marked Plaintiffs’ Exhibit D.]

Q. Can you fix the exact date when you and the other members of the band played for the making of the phonograph record of this number? MR. Munns: I object to that, it is immaterial. A. February 26, 1917 at New York City.

Q. When, for the first time in your life, did you see any manuscript or printed copy of this number? A. March 19, 1917.

Q. Can you state when for the first time this number was taken down in staff notation? A. March, 19, 1917. Q. Do you know what person took it down in staff notation? 178

A. An arranger by the name of William J.C. Lewis, employed by Jerome H. Remick Company.

Q. Did you see the manuscript made by Lewis of this number? A. Yes.

Q. What became of that manuscript that was made by Lewis? A. That was sent to Washington for copyright registration.

Q. State how the manuscript that was prepared by Lewis compared with the number that the band played by ear at that time? A. It was an exact copy.

Q. Prior to the 9th day of April, 1917, was this copy – what was done with this copy that Lewis made? A. It was delivered to Max Hart for copyright purposes.

Q. Do you know one Ray Lopez? A. Yes.

Q. Where did you meet him? A. In New Orleans.

Q. What was his business? A. Musician.

Q. Was he ever a member of any band in which you played. A. No.

Q. Have you ever talked with Lopez? A. Yes.

Q. Did you ever have any talk with him in reference to the musical composition known as “Livery Stable Blues” or “Barnyard Blues”? A. No.

Q. Did you at any time from the very first time that you ever heard this number played, suggest any part or parts of it or the introduction of any part or parts? 179

A. No.

Q. Did you have anything to do with the composition of this number? A. No.

Q. Did you make any contribution in the composition of this number? A. No.

Q Do you know one Ernie Erdman? A. Yes.

Q. What is his business? A. Pianist, musician.

Q. Where did you meet him for the first time? A. Schiller’s Café, Chicago.

Q. What was he doing in Schiller’s Café? A. Playing piano, accompanying singers.

Q. Did he have anything to do with your band? A. No.

Q. Did he in your presence and hearing ever suggest the introduction of any part or parts in this composition? A. No. Mr. Munns: I object to the form of the question as leading and calls for a conclusion of the witness.

Q. Did he ever in your presence and hearing discuss this number o any part or parts of it? A. No.

Q. Do you know what person or persons of the band conceived the pony cry? A. Yes, LaRocca.

Q. Were you and Nunez friendly? A. When we worked, yes.

Q. Did Nunez in your presence and hearing ever say that he originated the pony cry? 180

Mr. Nunez: I object to the form of the question. A No.

Q. What if anything did Nunez in your presence and hearing ever say concerning the origination or conception of the pony cry? A. He said it was good.

Q. Did he ever say anything concerning its ownership? A. No.

Q. Did he ever say to you or to anyone else in your presence and hearing that the various members of the band suggested different parts of the number? A. No.

Q. As a matter of fact did any person or persons other than LaRocca suggest any part or parts or anything of this composition? A. No.

Q. Did Nunez in your presence and hearing ever say that he was the originator of the pony cry? Mr. Munns: I object to the question, there is no such testimony that he didn’t. It calls for a leading answer. Q. Will you please tell us all the conversations that you ever had with Lopez concerning the ownership or origin of this song? Mr. Munns: I object to this question, he has already testified he had no conversation with Lopez. A. None.

Q. Did Nunez ever say to you or to any other person in your presence and hearing that he originated the pony cry, and that the tune of the number was made up from a tune that belonged to Ray Lopez? Mr. Munns: I object to the question as being leading. A. No.

Q. Did Nunez tell you or to any person in your presence and hearing that Erdman wrote the introduction to the number? Mr. Munns: I object to that question as leading. A. No.

181

Cross Examination by Mr. Munns:

Q. Who asked you to come to Chicago to play at Schiller’s Café? A. Stein.

Q. When and where was that? A. At New Orleans.

Q. What date? A. 1916, February.

Q. What was your conversation with him? A. That he had an engagement of ten weeks in Chicago to furnish a jass band.

Q What else was said, did you agree upon terms? A. Yes.

Q Did he tell you who else was going in the band? A. Yes.

Q. You then came to Chicago? A. yes.

Q. Did you sign any contract for the engagement in Schiller’s Café? A. Yes.

Q. Who signed the contract? A. Each and every member of the band.

Q. Have you that contract in your possession? A. No.

Q Who has that contract? A. Stein.

Q. What was the name of the act under that contract, if you know? A. Stein’s Dixie Jass Band.

182

Q. Are you positive of that? A. Yes.

Q. Did you ever hear of a composition known as “More Power Blues” at New Orleans or any other place? A. At New Orleans.

Q. Is that composition similar to “Barnyard Blues” or “Livery Stable Blues”? A. No.

Q. Is the beat and time measure the same; is the rhythm the same? A. Only that it is a fox-trot.

Q. Do you know who is the composer of “More Power Blues”? A. No.

Q. You worked in Chicago at Schiller’s Café about what time? A. March, 1916.

Q. And you played there continuously until what time? A. Sometime in June, 1916.

Q. How much was the act getting at the Schiller Café? A. $125, a week.

Q. How was the salary split? A. Five ways.

Q. Didn’t the band at the Schiller Café or at the Casino Gardens compose any band selection, originate any selection? A. Yes.

Q. Give the names of those. A. “Tiger Rag,” “Sensation Rag.”

Q. Any other? A. Ostrich Walk.

Q. Any other? 183

A. That is all I remember.

Q. Did the band play Tuxedo Blues there? A. I don’t know.

Q. Did the band originate “Meat Blues?” A. No.

Q. Did the band play any of those selections at the Casino Gardens after you left the Schiller that you just named? A. Yes.

Q. Is the band still playing them? A. Yes.

Q. While you were at New Orleans were you ever a member of Brown’s Band? A. No.

Q. What bands were you with at New Orleans? A. Brown’s Naval Brigade, Jardina’s Band.

Q. You have been playing how long? A. About nine or ten years.

Q. And from your experience as a musician, what is the characteristic of every jass band? Isn’t it that they have a particular strain that runs through the music so the people can follow a certain dance step? A. It has pep to it.

Q. And practically all the Jass bands play the same kind of music, isn’t that right? A. No.

Q I don’t mean the same songs, the same kind of music and rhythm? A. No.

Q It is all done to the movement of the dancers? A. Yes.

Q. How were you billed at the Schiller Café when you first went there? 184

A. Stein’s Dixie Jass Band.

Q. Did you have any banners advertising Stein’s Dixie Jass Band? A. Yes.

Q. Were those posters on the front of the place? A. Yes.

Q. And you called it Stein’s Dixie Jass Band until about June 1, 1916? A. Yes.

Q. Then you changed the name to what? A. Original Dixie Land Jass Band.

Q. Same five members were in it? A. With the exception of Stein.

Q. Mr. Sbarbaro was in the band? A. Yes.

Q. And in June 1916 and July the salary was split five ways the same way? A. Yes.

Q. And you are still called the original Dixieland Jass Band? A. Yes.

Q. Did you have any printed banners up? A. Cards.

Q. Who got out those cards? A. I don’t know.

Q. Have you one of those cards with you now? A. Yes.

Q. Did the Schiller Café put any cards out that they put out for you, showing you were the Original Dixieland Jass Band? A. Yes.

185

Q. Did that card have the name of the original members on it? A. No.

Q. When you went to the Casino Gardens in June, 1916, did you have any billing matter there? A. Yes.

Q. How were you listed on the billing matter there? A. Original Dixie Land Jass Band.

Q. Did you have names of members of the band on that billing matter? A. No.

Q. Did the Casino Gardens put out any cards which they gave customers showing who comprised the Original Dixie Land Jass Band? A. Yes.

Q. Those cards were given to Patrons of the Casino? A. Yes.

Q. They were gotten out by whom? A. The manager.

Q. What is his name? A. Harry James.

Q. When was the first time you heard the composition in question? A. It was about the middle of March, 1916.

Q. Was that the first time that you heard the composition in question? A. Yes.

Q. Who played it? A. LaRocca.

Q. Who was present at the time he played it? A. The band.

186

Q. Who else? A. The people in the audience.

Q. How may? A. I couldn’t say that.

Q. Do you know any of the men? A. No.

Q. Was Sam Hare there? A. Yes.

Q. Was his brother there? A. I don’t know his brother.

Q. Was Ernie Erdman there? A. Yes.

Q. Do you know the names of any of the entertainers that were there? A. I don’t know.

Q. Can you give us an idea of how many people there were there at that time? A. No.

Q. Then before when you said a few people you were not quite sure? A. There might have been twenty or forty or fifty.

Q. What time of the day was it? A. Between five and seven in the morning.

Q. What time did Schiller’s Café close? A. It never closed until the people were out.

Q. Do you know the ordinance in the city of Chicago that Cafés must be closed after one o’clock? A. Not at that time.

Q. How often did Mr. LaRocca play on the cornet to your knowledge? A. What do you mean? 187

Q. What instrument did Mr. LaRocca play in the orchestra at the time you came to Schiller’s Café? A. The cornet.

Q. What instrument did Nunez play? A. Clarinet.

Q. Did Mr. LaRocca ever play the clarinet? A. No.

Q. What cry was played by Mr. Nunez on the clarinet? A. I can’t describe it, it was an imitation of a rooster crow.

Q. How many days did you rehearse this composition at the Schiller Café? A. A week or ten days.

Q. Mr. Nunez remained right with you? A. Yes.

Q He was with you until December, 1916? A. No, about October or November.

Q. Then he left the band? A. Yes.

Q. And you boys came to New York the first part of January 1917? A. Yes.

Q. What instrument does Mr. LaRocca play? A. Cornet.

Q. What else? A. He plays a little on any instrument.

Q. What do you mean by playing a little? A. Two or three notes. Q. Give me the names of the different instruments used by the orchestra at the Schiller Café? 188

A. Cornet, clarinet, trombone, drums, and piano.

Q. Could Mr. LaRocca play the piano? A. He could play an accompaniment.

Q. Did he teach the piano player to play this composition? A. Yes.

Q. How did he teach him? A. He hummed it to him making two or three changes on the piano.

Q. Did he hum the parts to the other members of the orchestra to teach them their parts? A. Yes.

Q. That was the only way they were taught to play this composition? A. Yes.

Q. Did he give the composition any name at the time he taught it to you? A. No.

Q. Who gave the composition the name “Livery Stable Blues” or “Barnyard Blues.” A. I heard it was called “Livery Stable Blues”. “Barnyard Blues” was given by McDonald and King.

Q. Who told you that the composition was called “Livery Stable Blues” for the first time? A. Mr. LaRocca.

Q. When in reference to the beginning of the rehearsals was that name given to you, or told you? A. About three or four days.

Q. Who was present at the time he told you? A. The members of the band.

Q. Who else? A. That is all I know of.

Q. Give the exact words that he used at the time, state your conversation at the time? A. He said to play “Livery Stable Blues.” 189

Q. What did you say? A. Picked up the instrument and found out it was his blue number.

Q. What do you mean it was his blue number, how could you tell? A. My ear told me.

Q. How did you know what piece he wanted you to play when he said play “Livery Stable Blues”? A. By following by my ear.

Q. You just testified you picked up your instrument? A. Yes.

Q. What gave you any idea what selection he wanted you to play if he just mentioned play “Livery Stable Blues.” A. The first two or three notes.

Q. What do you mean, the first two or three notes? Did he play the first two or three notes of the number? A. Yes.

Q. That gave you the idea? A. Yes.

Q. Was there any introduction to this composition in question at the time you played it at the Schiller Café just a few days? A. Not that I know of.

Q When was the first time you heard or saw the introduction to the composition in question? A. After three or four days.

Q Who told you? A. LaRocca.

Q. How did he tell you? A. Let’s play the “Livery Stable Blues.”

190

Q. The introduction is separate and apart from the body of the composition, isn’t it? A. It contains the last part of one of the strains.

Q. Was LaRocca the man who told you to play the introduction? A. Yes.

Q. That was told you three or four days after you started rehearsals? A. Yes.

Q. You don’t know anyone else that was present outside of the band? A. No.

Q. And you played this composition continuously up to the time you left for New York at the Casino Gardens and Schiller’s? A. Yes.

Q. Did you ever play at the Del’Abe? A. Yes.

Q. How many weeks did you play there? A. Four weeks.

Q. When was that? A. June 1st to the end of June.

Q. And you played the composition at that place? A. Yes.

Q. Who comprised the band at that time? A. The first two weeks Ragas, LaRocca, Nunez, Carter and myself.

Q. And the last two weeks? A. Sbarbaro supplanted Carter.

Q. And this composition was known as “Livery Stable Blues” until you came to New York? A. Yes.

191

Q. And it was not until March of this year you turned over the composition to Mr. Hart? A. Yes.

Q. Did you have any conversation with Mr. Hart in Chicago? A. He made arrangements for the engagement.

Q. What name did you give Mr. Hart for the name of this particular composition? A. “Livery Stable Blues”.

Q. Did you mention the name Barnyard Blues? A. No.

Q. Was there no conversation with Mr. Hart in Chicago about Barnyard Blues in January 1917? A. No.

Q. As a matter of fact Barnyard Blues was not even mentioned until your negotiations with the Victor people? A. No.

By Mr. Burkan:

Q. You were asked on cross-examination whether the number Tiger Rag, Ostrich Walk, and Sensation Rag were composed by the band and you said yes. Is that answer correct? Mr. Munns: I object to the form of the question as he has already testified. A. The band that composed that is the band that Shields, LaRocca, Sbarbaro and Edwards were members of.

Q. And when you referred to the band that composed these numbers you referred to Messrs. Ragas, LaRocca, Sbarbaro, Shields and yourself? A. Yes.

By Mr. Munns:

Q. Then if these parties comprised the orchestra how could they have played these selections at the Schiller Café and Casino Gardens? A. I didn’t say –

192

Q. Then when you testified you played at the Schiller Café and Casino Gardens you were in error? A. Shields played in the Casino Gardens.

Q. Was Nunez a member of both orchestras at Schiller’s and Casino Gardens when these selections were played? A. Yes.

Q. It was at Casino Gardens that these last three mentioned compositions were played? A. Yes. The latter part of our stay at Casino Gardens.

Q. Give the name of the compositions played by the orchestra consisting of Shields, LaRocca, Sbarbaro, Ragas and yourself at the Schiller Café? A. Shields was not at the Schiller Café.

Q. Was there any composition played, composed and originated by the band at Schiller’s Café? A. Not that I know of.

Q. Was there any composition originated and comprised at the Casino Gardens? A. Yes.

Q. Give the names of those compositions. A. “Tiger Rag,” “Ostrich Walk,” and “Sensation Rag.”

Q. When were they composed? A. About December.

Q. What part of December? A. Middle or the latter part of December.

Q. Which is it, the middle or the latter part of December? A. Sometime in December, 1916.

Q. The band composed the three songs in December, 1916? A. Yes.

193

Q. And you left there when? A. January 21.

Q. So you composed these three songs in the last forty or forty-five days of your engagement? A. Yes.

Q. Isn’t it a matter of fact that you played these songs at Schiller’s Café? A. No.

Q. Isn’t it a matter of fact that Erdman played these at Schiller’s Café? A. No.

Q. Isn’t it a matter of fact that Nunez suggested various parts of these compositions? A. No.

Q. Did you have anything to do with the composition of these various compositions? A. No. Just to make my parts to make harmony?

Q. Did you do that yourself? A. Myself.

Q. Did the other members of the band compose their parts? A. Yes.

Q. And those compositions are owned by the band? A. Yes.

Q. Each member has an interest in those songs? A. Yes.

Q. That was the working basis, they were to have an interest in each composition? A. Yes.

By Mr. Burkan:

Q. When was your working arrangement entered into? A. Right after the “Livery Stable Blues” matter, when we played the record.

194

Q. In New York? A. Yes.

Q. For the Phonograph Company? A. Yes.

Q. Was any such arrangement made before you came to New York? A. Not that I remember.

Q. Do you know whether or not there was any such arrangement? A. No.

Sworn to before me this 2nd day of October, 1917 Rae Hartman, Edwin B Edwards [signed]

195

Deposition of Henry Ragas

Henry W. Ragas, one of the plaintiffs, having been duly sworn, testified as follows:

Direct Examination by Mr. Burkan:

Q. What is your full name? A. Henry W. Ragas.

Q. Where do you reside? A. #236 West 55th Street, New York City.

Q. What is your profession? A. Musician, pianist.

Q. What were you doing in March 1916? A. Playing at the Schiller Café?

Q. Alone or with a band? A. With a band.

Q. What was the name of the band? A. Stein’s Dixie Jass Band.

Q. Who were the members of the band at that time? A. Alcide Nunez, John Stein, Dominic James LaRocca, Edwards and myself.

Q. Do you know a man by the name of Ray Lopez? A. Yes, sir.

Q. How long have you known him? A. Well I met him just about that time.

Q. Do you know Alcide Nunez? A. Yes, sir.

Q. How long have you known him? A. About five years.

196

Q. Where did you first become acquainted with him? A. About 1912 in New Orleans.

Q. Did you live in that City? A. Yes, sir.

Q. Did you and Lopez ever play in a band together? A. No, sir.

Q. Did you and Nunez play in any band other than Stein Dixie Jass Band? A. Yes, sir.

Q. What band? A. It had no particular name, but I was the leader.

Q. When did Nunez join the band? A. About June, 1915.

Q. How long did he continue? A. I think he played during June and July.

Q. When did you join Stein’s Dixie Jass Band? A. March 3, 1916.

Q. Prior to the time that you joined Stein’s Dixie Jass Band did you ever hear the composition known as “Livery Stable Blues” or the composition in question, Barnyard Blues? A. No, sir.

Q. When and where for the first time in your life did you hear the composition known as “Livery Stable Blues”? A. At the Schiller Café in the latter part of March.

Q. What person or persons played it? A. Mr. LaRocca.

Q. Did he play it from memory or from a printed sheet? A. From memory.

197

Q. What were the circumstances, if any, surrounding the playing of this number by LaRocca which you say was the first time you heard it played? A. Mr. LaRocca said he was going to play an old number of his. Mr Munns: I object to conversation. (Witness continuing) He played it over softly to me while I was seated at the piano and I made the accompaniment and he told me exactly my part.

Q. On what instrument did he play it? A. On the cornet.

Q. Was this identical number played for you by LaRocca on the cornet played thereafter by the band? A. Yes, sir.

Q. How frequently? A. About nightly, I guess.

Q. Was it rehearsed? A. Yes sir.

Q. Who directed the rehearsals? A. Mr. LaRocca.

Q. What instrument did you play in the band? A. Piano.

Q. What instrument did LaRocca play? A. Cornet.

Q. What instrument did Edwards play? A. Trombone.

Q. What instrument did Nunez play? A. Clarinet.

Q. Did Lopez play - - teach you this number or any part of it? A. No, sir.

198

Q. Did he in your presence ever teach any of the other members of the band this number or any part of it? A. No, sir.

Q. Did Nunez ever teach you this number or any part of it? A. No, sir.

Q. Did he in your presence teach any other member of the band this number or any part of it? A. No, sir.

Q. When and where for the first time did you ever heard the horse neigh played on a musical instrument? A. When Mr. LaRocca first played it, the first night he played the piece.

Q. That was when in point of time? A. That was in the morning about 3 o’clock.

Q. I mean the month and day? A. About the latter part of March, 1916.

Q. On what instrument did he play it? A. On the cornet.

Q. Did Nunez ever in your presence and hearing play the pony cry or horse niegh on any instrument? A. No, sir.

Q. Did you contribute any part of this composition which is known as “Livery Stable Blues” and which was subsequently known as Barnyard Blues? A. No, sir.

Q. Did you aid in this composition in any way? A. No, sir.

Q. During the time that Nunez worked with you in New Orleans did he ever paly “Livery Stable Blues”, or as it was subsequently known as Barnyard Blues, or any part of it? A. No, sir. 199

Q. Did you ever have any conversation with Lopez at any time or place concerning the origin or ownership of the composition “Livery Stable Blues”, subsequently known as Barnyard Blues? A. No, sir.

Q. Did you ever have any conversation with Nunez concerning the origin or ownership of the whole or any part of the composition in question? A. No, sir.

Q. Did Ray Lopez in your presence ever state that he was the originator of the melody of the composition in question? A. No, sir.

Q. Do you know whether any of the members of the band other than LaRocca ever suggested any part or parts for this composition “Livery Stable Blues”, subsequently known as Barnyard Blues? A. No, sir.

Q. Did Nunez ever say in your presence and hearing that Ray Lopez was the originator of the composition “Livery Stable Blues”, subsequently known as Barnyard Blues? A. No, sir. Mr. Munns: I object to the question as leading

Q. Did he ever say in your presence or hearing that he was the originator of the pony cry? A. No, sir. Mr. Munns: I object to any conversation.

Q. Do you know Ernie Erdman? A. Yes. Q. Did Erdman ever in your presence and hearing suggest an introduction or play an introduction for this composition? Mr. Munns: I object to the question as leading. A. No, sir.

Q. Did Nunez ever in your presence or hearing say that he or the band made the tune up from a tune that belonged to Ray Lopez? A. No, sir. Mr. Munns: I object to the question as being leading.

200

Q. Did he ever in your hearing and presence say in words or substance that Erdman wrote the introduction to the number? Mr. Munns: Same objection. A. No, sir.

Q. Did he ever say in words or substance that the “Livery Stable Blues” was a rehash of Ray Lopez’s tune? Mr. Munns: Same objection A. No, sir.

Cross Examination by Mr. Munns:

Q. Who asked you to come to Chicago to pay at the Schiller Café? A. John Stein.

Q. What was the name of the orchestra at Schiller’s? A. Stein’s Dixie Jass Band.

Q. Was it known by any other name at Schiller? A. No, sir.

Q. Did you sign a contract for the engagement at the Schiller Café? A. Yes, sir.

Q. With whom else? A. With Alcide Nunez, Dominic James LaRocca, Edwin B Edwards, myself and John Stein.

How much were you getting for the band? A. $125.

Q How as the salary division? A. Five ways.

Q. Did you have any cards printed at the Schiller Café? A. Yes, sir.

Q. What name appeared thereon, what names were on the cards? A. If I remember, it was just “Stein’s Dixie Jass Band.” 201

Q. Was there any cards or circulars that were given to the public at the Schiller Café? A. No, sir, not that I remember.

Q. Those people who comprised the band never had anything to do with ordering up the cards? A. No.

Q. What did Erdman do at the Schiller Café? A. Played piano.

Q. How many entertainers did they have? A. If I remember well when we first went there, three or four.

Q. What was the routine of the entertainment? A. The band played one time and rest and then the entertainers worked. I think four songs were sung and then we played a number.

Q. Would you play an encore? A. Yes, sir.

Q. When was the first time you played this composition in question? A. The latter part of March, 1916.

Q. And what time of the day did LaRocca suggest this composition in question? A. It was in the morning about 3 A.M.

Q. And who was present at the time? A. Mr. LaRocca and myself. I don’t know who was sitting behind me, as I play the piano and have my back to the band.

Q. You don’t know who was there? A. No. He just mentioned to me he would play an old number of his.

Q. Just what was the conversation at that time? A. He said he will play an old number of his and he said “I will go over it and give you an idea” and he played it over the cornet softly and told me just exactly when to stop for the runs to come in.

202

Q. Was there anything else said in that conversation? A. No, sir.

Q. Did you at that time ask him the name of the composition? A. No, sir.

Q. Did you ask him when and where he played it before? A. No, sir.

Q. Did he ever tell you? A. No, sir.

Q. When, in reference to this conversation, did you play this composition in question with the other members of the orchestra? A. That morning.

Q. How soon after the conversation you just testified to? A. About five minutes after.

Q. How was the Café, was it crowded? A. No, sir, very few people in the Café.

Q. Do you know the names of any of the parties in the Café at the time? A. No.

Q. Did you hear Mr. LaRocca tell any other member of the band what to do and what to play? A. No.

Q. How many days did you rehearse? A. Seven to ten days.

Q. Was Mr. LaRocca the only tutor, was he the only one to tell you what to play? A. Yes, sir.

Q. During the rehearsals did you make any suggestions of any kind about leaving out certain notes or putting in certain notes? A. No.

203

Q. Did you make any suggestion about tunes not harmonizing with other tunes? A. No.

Q. Or certain other instruments not harmonizing with other instruments? A. No.

Q. Was the composition in question played the same way, in the same manner the first time you played it, as the tenth day of your rehearsals? A. No, we played it just a little better.

Q. What do you mean better, better in unison as a band? A. No, the runs were better.

Q. Who made changes of those runs? A. Mr. LaRocca.

Q. Did Mr. LaRocca know how to make a change of the runs on the cornet, clarinet, trombone and piano? A. Yes, sir.

Q. What instrument does he play? A. Cornet.

Q. Does he play the clarinet? A. No.

Q. Does he play the piano? A. No.

Q. Does he play the trombone? A. No.

Q. How could he instruct the piano player or the trombone player if he didn’t play those instruments? A. Just hummed it to us.

Q. When he hummed it to you he would give you an idea of what he wanted in the composition? A. Yes.

204

Q. Then you as a musician would put in what tune you thought he wanted? A. Yes.

Q. In other words, he would hum the parts to you and you as musicians would put them in for the various instruments which you played? A. Yes, sir.

Q How long did the band stay at Schiller’s Café? A. Three months.

Q. During that time you played piano every night? A. Yes, sir.

Q. Was there any nights you were off? A. May have been off a night.

Q. Was it more? A. May have been one or two nights off.

Q Who took your place while you were away. A. That I don’t remember.

Q. Could it have been Erdman who took your place? A. I don’t remember.

Q. Do you know who took your place? A. No.

Q. Did anyone ever tell you when you came back who took your place? A. No.

Q. Did you make any arrangement for a substitute before you went away? A. No, sir.

Q. Are you the originator or creator of any composition? A. No, sir.

205

Q. Have you ever suggested any variations or changes in the present composition of any song other than the composition in question? A. I have, yes, sir.

Q. It is nothing unusual for a musician of your caliber to make variations or runs in the present composition is it? A. I don’t understand what composition you mean.

Q. Any composition other than the one in question? A. Yes.

Q. It is nothing unusual for you to put in variations or runs, something that might strike you? A. I could, but it don’t sound well with this sort of music.

Q. How long did you play at the Del’Abe? A. About a month.

Q. Was this composition in question played there at that time? A. Yes, sir.

Q. Did the band play this composition correctly at that time? A. Yes.

Q. Made no changes? A. No.

Q. How were you billed at the Del’Abe? A. Not billed at all.

Q. Did you change the name of the act while you were at the Schiller? A. No.

Q. When did you change the name of the set from Stein’s Dixie Jass Band to the Original Dixieland Jas Band? A. When we went to the Casino Gardens.

Q. How did you happen to change the name at that time? A. I don’t know exactly, I think Mr. Edwards changed it if I am not mistaken. 206

Q. Did Mr. Harry James make any request for a change of name? A. No.

Q. Who acted as business manager of the band at Casino Gardens? A. Mr. Edwards.

Q. Who acted as business manager of the band at the Schiller Café? A. John Stein.

Q. Did Mr. Stein have anything to do with this composition in question? A. No, sir.

Q. Did he create any parts of any cries for this composition while at the Schiller Café? A. No, sir.

Q. When did you leave Chicago? A. We left Chicago in January, the latter part of January.

Q. What year? A. 1917.

Q. And came to New York? A. Yes, sir

Q. During your entire Chicago engagement from the early part of March to January, you played this composition in question? A. Yes, sir.

Q. Did you ever hear “More Power Blues”? A. Yes, sir.

Q. When and where? A. In New Orleans when Alcide played with me.

Q. And when was that? A. In 1916, month of June.

Q. You played with him about a month? A. About a month and a half or two months. 207

Q. Was that composition very popular at New Orleans, if you know? A. Not that I know of.

Q. Did any other Jass band play that composition known as “More Power Blues” other than your band? A. Yes, pretty near all of them did.

Q. Do you know whether “More Power Blues” is similar or dissimilar to this composition? A. It is not similar.

Q. Would you say there is any resemblance at all? A. Not that I know of.

Q. Did you ever compare them? A. No, sir, I heard them and they don’t sound alike.

Sworn to before me, this 2nd day of October, 1917, Rae Hartman, H W Ragas [signed]

208

Deposition of Lawrence Shields

Lawrence Shields, one of the plaintiffs, having been duly sworn, testified as follows:

Direct Examination by Mr. Burkan:

Q. What is your full name? A. Lawrence Shields.

Q. Where do you reside? A. #125 West 49th Street, New York City.

Q. How old are you? A. 24.

Q. What is your profession? A. Musician.

Q. How long have you been a musician? A. About eight years.

Q. What instrument do you play? A. Clarinet.

Q. When did you become a member of the original Dixieland Jass band? A. About November 3, 1916.

Q. Where was the band playing at that time? A. Casino Gardens, Chicago.

Q. Who constituted the band at that time? A. Edwards, LaRocca, Ragas, Sbarbaro and myself.

Q. Was this composition known as Livery Stable Blues played by the band at that time? A. Yes, sir.

Q. Are you still a member of the band? A. Yes, sir.

209

Q. Did you know one Ray Lopez? A. Yes, sir. Q. Where did you become acquainted with him? A. I became acquainted with him about five years ago, about seven years ago in New Orleans.

Q. Did you and he ever play in the same band? A. Yes, sir.

Q. What band? A. Brown’s Band.

Q. How long did you and he remain members of the same band? A. Up till February, 1916.

Q. And when did you and Lopez become members of this band? A. He was a member of the band before I was.

Q. And you became a member of it when? A. I became a member of the band in New Orleans about five years ago. I don’t know the exact date.

Q. So you and he played together in the same band for some period of time? A. Yes.

Q. During the time that you and Lopez played in the same band together did Lopez ever introduce a composition known as “Livery Stable Blues”? A. No, sir.

Q. Did you prior to the time that you joined the Original Dixieland Jass Band ever heard the composition known as “Livery Stable Blues”? A. No, sir.

Q. Did you prior to that time hear any composition similar in theme or melody to the “Livery Stable Blues”? A. No, sir.

Q. During the time that you and Lopez were members of Brown’s band did you know of any composition that Lopez composed or originated? 210

A. No, sir.

Q Did Brown’s band ever play any composition composed by Lopez? A. No.

Q. What instrument did Lopez play when you and he were in the same band A. Cornet.

Q. Did Lopez ever teach any members of the Brown’s band any number or composition, if you know? A. No, sir.

Q. Did you tour with Brown’s band? A. Yes, sir.

Q. In what places did you tour? A. In Chicago and New York.

Q. What other places? A. Newark and other Jersey places.

Q. And you left Brown’s Band in New York City in February 1916? A. Yes, sir.

Q. Was Lopez still a member of the band when you left? A. The band broke up here in New York in February 1916.

Q. Did Lopez ever discuss with you the origin or ownership of the “Livery Stable Blues”? Mr. Munns: I object to the question as being leading. A. No, sir.

Q. Did Lopez ever in your presence or hearing have any conversation in relation to the origin or ownership of the “Livery Stable Blues” or the theme or melody thereof? Mr. Munns: Same objection. A. No, sir.

211

Q. When you joined the Original Dixieland Jass Band who taught you the part that you were obliged to play for the composition “Livery Stable Blues”? A. Dominic James LaRocca.

Q. What method did he pursue in teaching you to play your part? A. He told me I had to make a rooster crow.

Q. Did he use any instrument when he was teaching you the composition? A. He hummed it to me.

Q. Where was Brown’s Band the latter part of 1915? A. Brown’s Band was in Chicago up till August 26, 1915 then we came on to New York.

Q. And you remained in New York until when? A. February, 1916.

Q. And was Lopez with the band during the entire period? A. Yes.

Q. Did Lopez ever teach you to play the melody of the “Livery Stable Blues”? A. No, sir.

Q Did you ever hear Lopez play any composition at any time or place similar to the composition known as “Livery Stable Blues”? A. No, sir.

Cross-Examination by Mr. Munns:

Q. Did Lopez ever play the composition “More Power Blues” while with Brown’s band? A. Yes, sir.

Q. You are fully acquainted with the composition “More Power Blues”? A. Yes.

Q. What kind of a composition would you call that? A. A blue number.

Q. Is it on the same order as “Livery Stable Blues”? A. No, sir. 212

Q. What is there similar about the two compositions? A. Nothing similar.

Q. Is the rhythm the same? A. I don’t know how to read any music and there is no use asking me that question. I can only compare both pieces by hearing them and they are not alike at all.

Q. How do you play? A. By ear.

Q. How do you play the compositions then, who tells you or gives you an idea what composition to play, an idea of the tune? A. I only have to hear it.

Q. Who generally gives you the tune of the composition you are to play? A. the cornet.

Q. Who plays the cornet of your band at the present time? A. LaRocca.

Q. And who gave you the tunes while you were in Brown’s Band? A. Who gave me the tunes?

Q. Yes. A. It is played over.

Q. In this particular band, in your present band, Mr. LaRocca gives you the tune, I want to know who gave you the tunes while you were in Brown’s Band? A. They played it over and I played it?

Q. Who is “they”? A. The whole band, No one in particular. One fellow would come on the job with a new song and he played it off and we followed.

Q. Did Lopez give you the tune of any composition that you committed to memory? A. Yes.

213

Q. Did he give you “More Power Blues”? A. I don’t exactly remember who gave that composition to me.

Q. You did play that selection? A. Yes.

Q. What songs --- what compositions did you play with the Dixieland Jass Band, with the present orchestra, when you came to the Casino Gardens in Chicago that had not been reduced to writing? A. None. Not that I know of.

Q. What is your answer? A. None that I know of.

Q. Was the “Tiger Rag” reduced to writing? A. No, sir.

Q. Was the Ostrich Walk? A. No, sir.

Q. Was the Sensation Rag reduced to writing? A. No, sir.

Q. Was “Livery Stable Blues” reduced to writing? A. No.

Q. How can you give me an idea of how many compositions you played with the band at the Casino Gardens that were not reduced to writing? A. Four, I suppose four or five.

Q. Do you say four because I named four compositions or is that what you want to testify to? A. I want to testify to that.

Q. And who gave you the tunes of those four or five selections? A. The whole band.

Q. The whole band gave you those four or five selections and not Mr. LaRocca? 214

A. He gave me the selection of “Barnyard Blues.”

Q. Why did Mr. LaRocca - - why do you testify Mr. LaRocca taught you “Barnyard Blues” and not the other four, are you testifying that way just because you want to emphasize “Barnyard Blues”? A. Because I am telling the truth. You are asking for the truth.

Q When did you say was the first time you heard “Barnyard Blues”? A. When I started at the Casino Gardens.

Q. Who talked to you about it the first time? A. The band played it there.

Q. Did you ever hear Nunez play with the Dixie Jass Band? A. I heard him one night.

Q. Was that the night before you opened? A. No, that was at the Schiller Café?

Q. When was that? A. That was April.

Q. What instrument did Nunez play? A. Clarinet.

Q. Did you hear him play “Barnyard Blues”? A. No, I never heard him play “Barnyard Blues.”

Q. And you saw him one night before you went to work for him? A. Before I went to work for him?

Q. Before you went to work for the band? A. I saw him one night. I saw him one night at the Schiller Café.

Q. Had Nunez left the band before you went with it, before you joined them at the Casino Gardens? A. I think he left about three nights before I joined.

Q. Who played your part three nights before you joined? 215

A. Nobody.

Q. How did the band work? A. Without a clarinet.

Q. You are acquainted with Mr. Brown? A. Yes.

Q. You played with him for five years? A. Yes.

By Mr. Burkan:

Q. Is it possible to play a pony cry on the clarinet? A. No, sir, not that I know of. I don’t think it is possible.

By Mr. Munns:

Q. You are testifying from your own ability you cannot play it on the clarinet, can you? A. No.

Q. You are talking from your own ability and experience? A. Yes.

Q. There might have been somebody that played it that you never heard of? A. Yes.

By Mr. Burkan:

Q. Did you ever hear of any person playing the pony cry or a horse neigh on a clarinet? A. No, sir.

Sworn to before me this 2nd day of October, 1917 Rae Hartman, Lawrence Shields [signed]

216

Anthony Sbarbaro, one of the plaintiffs, having been duly sworn, testified as follows:

Direct Examination by Mr. Burkan:

Q. What is your full name? A. Anthony Sbarbaro.

Q. When do you live? A. #776 Eight Avenue, New York City.

Q. You know Alcide Nunez? A. Yes, sir.

Q. Did you play with him in New Orleans? A. One night.

Q. When? A. Three years ago.

Q. Did you play with him any other place? A. Yes.

Q. Where? A. In Chicago.

Q. Commencing when? A. June.

Q. What year? A. 1916.

Q. And continued for how long? A. Up until the last of October or the first of November 1916.

Q. In what band did you and he play together? A. The Original Dixieland Jass Band.

Q. When did you join the Original Dixieland Jass band? A. In June 1916. 217

Q. Did this Jass band at the time you joined it play a composition known as “Livery Stable Blues”? A. Yes, sir.

Q. Did you ever have any conversation with Nunez in relation to the origin and ownership of the “Livery Stable Blues” or any part of it? A. No, sir. Mr. Munns: I object to the question as leading.

Q. Did Nunez in your presence and hearing ever say in words or substance that he composed “Livery Stable Blues”? Mr. Munns: Same objection. A. No, sir.

Q. Or that Ray Lopez was the originator of the tune which made up the “Livery Stable Blues”? Mr. Munns: Same objection. A. No, sir.

Q. Or that the various members of the Original Dixieland Jass Band, or any other band suggested different parts of the composition? A. I did hear that Mr. LaRocca was the one. When I asked whose wonderful brains composed the piece, and he said Mr. LaRocca, and that is the man that taught it to me. Mr. Munns: Same objection.

Q. When was it that you had any conversation with Nunez concerning the authorship of this number? A. The night before I joined the Original Dixieland Jass Band at Del’Abe in Chicago, this was about the later part of June, 1916.

Q. Please state all that you said and all that Nunez said concerning the authorship of this number? Mr. Munns: Objected to because the question calls for conversation not in the presence of Graham. A. He came off the band stand after the number was played, it being the first time I ever heard the piece in my life, and I asked him whose wonderful brains composed the piece and he pointed out the cornet player, Mr. LaRocca.

218

Q. What instrument do you play in the band? A. Drums.

Q. Who taught you this number? A. Mr. LaRocca.

Q. Have you told us all that Nunez told you concerning the authorship, origin and ownership of this number? A. Yes, sir.

Q. Did Nunez ever say in words or substance in your presence and hearing that Nunez composed the “Livery Stable Blues”, which was subsequently called “Barnyard Blues”? A. No, sir. Mr. Munns: Same objection.

Q. Did he ever say I your presence and hearing in words or substance that Ray Lopez was the originator of the original composition? Mr. Munns: Same objection. A. No.

Q. Did he ever say that he, Nunez, was the originator of the pony cry? Mr. Munns: Same objection. A. No, sir.

Q. That the various members of the band suggested different parts? Mr. Munns: Same objection. A. No, sir.

Q. That Ernie Erdman suggested the introduction? Mr. Munns: Same objection. A. No, sir.

Q. And that as a matter of fact Erdman played the introduction and gave the composition the name “Livery Blues”? Mr. Munns: Same objection. A. No, sir.

219

Q. And that the tune of the “Livery Stable Blues” was made up of a tune that belonged to Ray Lopez? Mr. Munns: Same objection. A. No, sir.

Cross Examination by Mr. Munns:

Q. Who was present at this conversation between Mr. Nunez and yourself? A. No one.

Q. What interest have you in the composition at the present time? A. One-fifth.

Q. Have you anything in writing to show your interest int his composition? A. What?

(question repeated) A. So, I have not.

Q. When did you derive your one-fifth interest in this composition? A. I don’t know the exact date.

Q. About when? When in reference to your joining the band?

A. I joined the band in June.

Q. And when did you receive your one-fifth interest in the composition, give the date? A. Sometime in February 1917.

Q. Did you ever have any interest in this composition prior to February 1917? A. No, sir.

Q. Did LaRocca or any other member of the band tell you they had an interest in this composition prior to February 1917? A. No, sir.

Sworn to before me this 2nd day of October, 1917, Rae Hartman, Anthony Sbarbaro [signed]

220

United States of America Northern District of New York State of New York County of New York

I, Rae Hartman, a Notary Public in and for the State of New York, County of New York, do hereby certify that the above named witnesses Max Hart, Lee Orean Smith, Theodore F. Morse, Louis Joseph, Lawrence Shields, Anthony Sbarbaro, Henry W. Ragas, Edwin B. Edwards and Raymond Hubbell, were by me first duly cautioned and sworn to testify the truth, the whole truth and nothing but the truth; that each of said witnesses resides at a greater distance from the place of trial than one hundred miles; that their depositions were reduced to writing upon a typewriter by me and were read over by them and by them subscribed before me; that the opposing party was represented by counsel during the taking of the said testimony; that said deposition was duly taken pursuant to notice at the offices of Nathan Burkan, #165 Broadway, Borough of Manhattan, New York City, which notice is hereto annexed, beginning on Friday September 28, 1917 at 10 o’clock A.M., and was continued on Monday October 1, 1917, at 4 P.M. when the same was concluded; that I am not connected by blood or marriage with either of said parties, nor interested directly or indirectly in the event of the cause. In witness whereof, I have hereunto set my hand and affixed my official seal this 3rd day of October 1917. Rae Hartman [signed]

221

William Lambert, a witness produced on behalf of the plaintiff, having first been duly cautioned and sworn, in answer to interrogatories propounded by counsel testified as follows:

Direct Examination by Mr. Burkan:

Q. What is your name? A. William Lambert.

Q Where do you live? A. I am now stopping at the Palace Hotel in the City of New York.

Q. Do you know Ray Lopez? A. I do.

Q. When did you become acquainted with him? A. About four years ago in New Orleans.

Q. Where were you living at that time? A. In New Orleans.

Q. What is your profession? A. Trap drummer. Musician.

Q. On what particular instrument did you perform? A. Drums.

Q. What was your profession at the time that you became acquainted with Lopez? A. I was just starting out to play on the drum.

Q. Do you know what Lopez was doing at that time? A. Playing the cornet.

Q. Was he attached to any band? A. With Brown’s band.

Q. Were you attached to any band? A. I was not.

222

Q. Where was Brown’s Band playing when you became acquainted with Lopez? A. They were not playing at any special place, they played different places every night.

Q. And how frequently after you became acquainted with Lopez did you hear the band of which he was a member give performances? A. How frequently?

Q. Yes. How often? A. I worked with him about six nights out of the week on the average.

Q. As a member of Brown’s Band? A. Yes, sir.

Q. When, after you became acquainted with Lopez, did you become a member of Brown’s Band? A. I guess about a week after I got acquainted with him.

Q. How long did you and he continue to be members of Brown’s Band? A. Until February 1916.

Q. Did this band of which you were a member and which you have called Brown’s Band ever play a composition called “Livery Stable Blues”? A. It did not.

Q. Do you know the composition called “Livery Stable Blues”? A. Yes, I have played it.

Q. When for the first time in your career did you play the composition “Livery Stable Blues”? A. About a month ago was the first time.

Q. Can you give us more accurate information? A. September.

Q. 1917? A. Yes.

223

Q. Did Brown’s Band ever play a number while you were a member of such band a composition similar to the “Livery Stable Blues”? A. No.

Q. You say that you and Lopez continued to be members of Brown’s band down to February 1916? A. Well, that was off and on that I was with him.

Q. Can you give us more specific information as to the periods during which you were connected with this band? A. I worked with the band at the Lamb’s Café in Chicago from, I think, May 16, 1914 to about November 1915. Then I came to New York with the band and we played vaudeville engagements.

Q. During the period when you were connected with brown’s Band and while Lopez was a member thereof, did the band ever play the number “Livery Stable Blues”? A. No.

Q. Did it play a number similar to “Livery Stable Blues”? A. No.

Q. Did you ever have any conversation with Lopez concerning the origin, authorship or ownership of the composition known as “Livery Stable Blues”? A. No.

Q. Did Lopez ever have any conversation with any person in your presence and hearing concerning the authorship, ownership or origin of the “Livery Stable Blues”? A. No.

Q. Did Lopez ever in your presence and hearing state to you or to anyone else in words or substance that he “Livery Stable Blues” or the composition known as the “Barnyard Blues” was taken from a composition of his? A. No.

Q. Did Lopez in your presence and hearing ever state to you or to anyone else in your presence and hearing that he “Livery Stable Blues” or “Barnyard Blues” was a rehash of one of his compositions? A. No.

224

Q. Did he at any time in your presence and hearing say to you or to any other person in words or substance that he was the originator of the original composition upon which “Livery Stable Blues” or Barnyard Blues was based? A. No.

Q. Did he ever say in words or substance in your presence and hearing to you or to any other person that he was the author of the original composition from which “Livery Stable Blues” was taken? A. No.

Cross Examination By Mr. White:

Q. How long did you play with Mr. Lopez in New Orleans? A. About two years.

Q. And can you recollect now practically everything that was played at that time down there? A. No, I could not.

Q. What musical training have you had Mr. Lambert? A. None whatever.

Q. You don’t write music? A. No.

Q. And you don’t read music? A. No.

Q. You just play the drum? A. Yes, the jass drum.

Q. What is a jass drum? A. A rag time drummer.

Q. Is that drum any different from any other drum? A. No, the drum is not different.

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Q. Just a regular drum is it? A. It is just an ordinary drum, I can play on a man’s drum that reads music and he can play on my drum, the only thing I can’t read music.

Q. Do you recollect anything that was played by Mr. Lopez in New Orleans that sounded anything similar to the “Livery Stable Blues” or the Barnyard Blues? A. No.

Q. If it was not played with the same variations as this music is written, but in straight harmony, would you be able to distinguish between either? Mr. Burkan: I object upon the ground the question the question is not clear, that it is very vague and indefinite and the witness’ attention is not called to any particular composition. Q. If the interlude was not made descriptive, but was played in straight harmony, would you be able to recall now whether it was played in New Orleans in 1915 when you were down there? Mr. Burkan: Same objection, and further upon the ground that it is hypothetical, vague and indefinite and the witnesses attention is not called to any specific composition. Q. In the band that was played by Mr. Lopez in New Orleans in 1915, do you recollect anything being played with the same harmony, same time, same melody but without the interlude being descriptive? Without the crowing and all that? A. I didn’t hear it played, I have never heard it played in New Orleans.

Q. Could you, if it was played in plain harmony without the descriptive remember, would you be able to distinguish it? A. Do you mean if I played without rag, straight harmony and melody? What do you mean could I tell the piece when I hear it?

Q. Could you distinguish one that was played in straight harmony from one that was played with the descriptive, as Barnyard Blues has it now? A. I guess I could.

Q. You think you have sufficient musical training to be able to note what is being played, if it is played in straight harmony? A. I think so.

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Q. And during all he time that you were in New Orleans playing with this band, you say that Mr. Lopez while in that band didn’t play a selection with the melody being in plain harmony that was similar to the blues here in litigation? A. No.

Q. Was it played in Chicago? A. No.

Q. When was the very first time you heard it played --- the melody played at all prior to 1917? A. I never heard it played before in my life. The first time I heard it was on the record on the phonograph.

Q. Did you ever hear of a composition known as “More Power Blues”? A. I did.

Q. And when did you first hear that played? A. I think Brown’s Band was playing that when I started to play with them.

Q. Where, in New Orleans? A. Yes.

Q. What year was that? A. I think it was 1913.

Q. And was that played in straight harmony at that time? A. It was not.

Q. How was it played then? A. It was a rag.

Q. Any descriptive features to it? A. Not that you could notice very much.

Q. Then would it not be straight harmony or rag? A. It would not.

Q. It would be what you call rag? A. All I ever played in Brown’s Band was rag time music. 227

Q. Do your recollect playing a composition then known as “More Power Blues”? A. I do.

Q. How soon after that did you hear this same composition played with descriptive parts? A. I never heard it played no different as I told you.

Q. How does this compare with the composition now known as “Livery Stable Blues”? A. It Doesn’t compare at all to my knowledge.

Q. Neither in harmony or in descriptive? A. Neither way.

Q. Did you know a Mr. Nunez in New Orleans? A. Yes.

Q. Was he a member of this particular band, Brown’s Band? A. He was not.

Q. Was he a musician? A. He was.

Q. Did you ever play with Mr. Nunez in the band at all? A. No, I never have.

Q. Mr. Lambert, you played the same composition known as “More Power Blues” in Chicago, as well, did you note? A. I think so.

Q. You think so? A. I am not sure.

Q. In what respects do you say the “More Power Blues” differs from the “Livery Stable Blues”? A. Altogether, in all ways.

Sworn to before me this 6th day of October, 1917 Rae Hartman, William Lambert [signed]

228

United States of America Northern District of New York State of New York County of New York

I, Rae Hartman, a Notary Public in and for the State of New York, County of New York, do hereby certify that the above named William Lambert was by me first duly cautioned and sworn to testify the truth, the whole truth and nothing but the truth; that each of said witnesses resides at a greater distance from the place of trial than one hundred miles; that his deposition was reduced to writing upon a typewriter by me and was read over by him and by him subscribed before me; that the opposing party was represented by counsel during the taking of the said deposition; that said deposition was duly taken pursuant to notice at the offices of Nathan Burkan, #165 Broadway, Borough of Manhattan, New York City, by agreement between counsel for both parties and with my consent notice having been duly waived, on October 6th, 1917 at 1P.M.; that I am not connected by blood or marriage with either of said parties, nor interested directly or indirectly in the event of the cause. In witness whereof, I have hereunto set my hand and affixed my official seal this 3rd day of October 1917. Rae Hartman [signed]

229

In the District Court of the United States For the Northern District of Illinois, Eastern Division

Max Hart, Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs.-

Roger Graham, Defendant

In Equity, No. 914

New York, October 6, 1917

Proofs for the defendant taken before Rae Hartman, Notary Public, in and for the County and State of New York, at her office, No. 165 Broadway, Borough of Manhattan, City, County and State of New York, on the 6th day of October, 1917, at 11 A.M. (notice of taking proofs being waived) and in accordance with the provisions of Sections 63, 64, and 65 of the Revised Statutes of the United States and the Equity Rules of the Supreme Court of the United States for causes in Equity.

Present:

Nathan Burkan, of counsel for Plaintiffs Mayer C Goldman (Lewis C. White, of counsel for defendant).

It is stipulated that notice of the taking of the depositions of all witnesses produced by either side this day be, and the same hereby is waived.

230

R A Y M O N D E. L O P E Z, a witness produced on behalf of the defendant, having fist been duly cautioned and sworn, in answer to interrogatories propounded by counsel, testified as follows:

DIRECT EXAMINATION BY MR. WHITE:

Q. What is your full name? A. Raymond E. Lopez.

Q. How old are you? A. 26.

Q. What is your business? A. Musician.

Q. What instruments to you play? A. Cornet.

Q. Were you playing the cornet in 1912? A. Yes.

Q. Where? A. New Orleans.

Q. And where in New Orleans did you play? A. Various dance halls and cafes.

Q. For how long a period of time were you down there? A. From 1912 to 1914.

Q. Where you connected with any band? A. Yes, sir.

Q. What band? A. Brown’s Band.

Q. And that was constituted of how many pieces? A. Five, sometimes six.

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Q. Did you, white playing down in New Orleans compose, play or create any musical composition known as Barnyard Blues or “More Power Blues”? A. I composed a number “More Power Blues”.

Q. What was the nature of that composition? A. Well, it was a rag time composition with an interlude played rather in an odd way.

Q. Describe it as near as you can compared with other compositions? A. It was a little different from other numbers.

Q. Can you state – can you give a more accurate description as to melody? A. It had a strange strain of melody that was a little different from any other melody.

Q. Can you give any description? Did it have any descriptive? A. No.

Q. When, if at any time, was there any descriptive added to this particular composition by you? A. there never was any descriptive part added by me.

Q. By whom was it added? A. By Alcide Nunez

Q. Collaborating with you? A. Yes, sir.

Q. What did that consist of? A. He took this strain I was just telling you about and he made it descriptive, he made a pony cry, horse neigh and a rooster row.

Q. And where, if you can recollect, where was the first place it was played with this descriptive? A. In Chicago.

Q. When? A. Sometime in 1915.

Q. Where were you playing in Chicago? A. At what time? 232

Q. When this was first played? A. Al Tearney’s Café.

Q. And what was the name that was applied by you to it then? A. In Chicago?

Q. Yes. A. It was still the “More Power Blues”. It was called “Livery Stable Blues” later.

Q. Had you heard that played by anybody else prior to that time? A. Nobody, outside of our band.

Q. Who was in your band down in New Orleans where you were playing the composition? A. Brown, Miller, Lambert, Loyacano, Shields and myself.

Q. And were any of these men you have mentioned members of the band at Chicago, members of Brown’s Band in Chicago? A. Yes, sir.

Q. All of them? A. Yes, sir.

Q. You had these melodies copyrighted through Graham, did you? A. Yes, sir.

Q. Did you ever tell anybody that you or Nunez were not the authors of this particular composition? A. No, sir.

Q. Did you tell anybody that you were? A. Yes, sir.

CROSS EXAMINATION BY BURKAN:

Q. Did I understand you to say that you composed the composition known as “More Power Blues”? A. Yes, Sir. 233

Q. And that that was your original composition? A. Yes, sir.

Q. And that no other person has any right to claim it as his? A. No.

Q. You are the only person that has any right to claim the authorship of “More Power Blues”? A. Yes, sir.

Q. And you say that you composed it in what year? A. 1912, between 1912 and 1913.

Q. What character of composition was it? A. It was a blues.

Q. When for the first time in your life did you ever play the composition? A. Down in New Orleans.

Q. In what band? A. Brown’s Band.

Q. In what place? A. I think it was a dancing school, Frank Davidson’s Dancing School.

Q. Who were the members of the band at that time? A. Brown, Miller, Meyers, Layacano, and myself.

Q. What was Brown’s connection with the band at that time? A. It was his band.

Q. Did any person collaborate with you in the composition of “More Power Blues”? A. No, sir.

Q. Did any person make any suggestion to you as to the composition of “More Power Blues”? A. Oh, yes. One or two people made suggestions.

234

Q. When were these suggestions made to you? A. In New Orleans.

Q. What year? A. I composed it in 1912 or 1913, I cannot remember the exact date, or month, it was in the winter time.

Q. Was it before it was played for the first time by Brown’s Band? A. No.

Q. When were suggestions made to you by these persons, before or after it was played by Brown’s Band? A. A little after we started playing it.

Q. How many times had you played it when some person or persons made suggestions? A .First or second time.

Q. And it was at the Dancing school? A. Yes, Sir.

Q. Give us the name of the person or persons that made any suggestions to you concerning this composition? A. Brown made suggestions. Miller made suggestions.

Q. Tell us the suggestions that Brown made? A. I cannot very well recall the exact changes that were made in it. Just a line here or there, changed the melody by four or five bars.

Q. And what changes did Miller make? A. I can’t remember those either.

Q. Did you know that in this case Tom Brown made an affidavit in which he said that he is the original composer of “More Power Blues,” and no one has any right or claim thereto? A. No, I didn’t know that.

Q. If such a statement was made in an affidavit by Tom brown, is that true or false? A. False.

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Q. You, of course are very familiar with the composition “More Power Blues”, are you not? A. Yes, sir.

Q. You are the original composer? A. Yes, sir.

Q. Was that number successful? A. It was, yes, sir.

Q. Did you ever have it published? A. No, sir.

Q. Was it ever taken down in staff notation? A. It was taken down in Chicago in last April.

Q. April 1917? A. Yes, sir.

Q. What person took it down? A. A fellow by the name of Guy Shrigley.

Q. Do you write music? A. No, sir.

Q. Do you read music? A. No, sir.

Q. What musical training have you had? A. None.

Q. Did you ask Shrigley to take “More Power Blues” down in staff notation? A. Yes, sir.

Q. Tell us how you happened to have Shrigley take this composition down in staff notation? A. We were playing at the Hotel Sherman one night and the clarinet player of the Dixie Land Jass Band that played with us, Nunez and a party came up and asked us to play “Livery Stable Blues” and I said I never heard it, and Nunez said, you know it. It is “More Power Blues” with an interlude made descriptive where we used to play it in 236 straight harmony, straight melody, it is played with a pony cry and rooster crow. It is made descriptive, that is “Livery Stable Blues”.

Q. After you had the conversation, what did you do? A. Then we played the number. Nunez said that Ernie Erdman wrote the introduction---

Q. I don’t ask you about Ernie Erdman. I asked you what you did? I am asking you what you did after you and Nunez had that conversation? A. We played the number.

Q. You played it then and there? A. Yes, sir.

Q. Without any previous rehearsal? A. No, sir.

Q. Who were the members of the band that played this composition right after you had the conversation with Nunez? A. Nunez, Bert Kelly, Perry Cochrans, Billie Ahearn Fred Travers and myself.

Q. Is it a fact that a person came up to Nunez, who was then playing in the band with you at the Hotel Sherman and asked Nunez to play “Livery Stable Blues”, and you replied that you didn’t know “Livery Stable Blues”, and thereupon Nunez said to you, it was “More Power Blues” with an introduction and a description of a pony cry and a rooster crow and thereupon and without any rehearsal the band played the “Livery Stable Blues”? A. Yes, sir.

Q. Before that time you, of course, were unfamiliar with the introduction? A. I was not familiar with it.

Q. You were unfamiliar with the pony cry and rooster crow? A. Yes, sir, I was unfamiliar with it.

Q. You were the cornet player? A. Yes.

Q. And you were the person who was supposed to lead the band? A. No, sir, Bert Kelly led the band, the banjo player. 237

Q. How did you know at what place you were to play your run? A. Because Nunez explained it to me just before we played it.

Q. Then and there? A. Yes, sir.

Q. Without any rehearsal? A. Without any rehearsal, yes.

Q. Tell us how Shrigley came into it? A. Shrigley was playing piano for me at another time, in another Café, not that night, and after Nunez told me about them taking my number and adding this introduction to it, I went to Kelly about it. Kelly suggested that I have it written down in manuscript form and have it copyrighted.

Q. You went to Shrigley, or did he come to you? A. I went to him.

Q. Where did you go to him? A. The Café where we were working.

Q. What Café was that? A. Woodcliffe Inn. From there we went to the Hotel Sherman.

Q. What did you do when you got to the Hotel Sherman? A. Nunez, Shrigley, Kelly and myself played the number over on the piano in one of those rooms—Mr. Shrigley played the piano. After Shrigley got an idea of it he said down and wrote it.

Q. Before that time had you ever heard the number played on the phonograph? A. No, sir.

Q. You told us that you and Kelly and Nunez played the number for the pianist Shrigley? A. Yes.

Q. How many times did you and Nunez Kelly play it over for the pianist? A. Twice at most.

238

Q. Did you bring in a phonograph record with you at that time? A. No.

Q. Had you heard this number played on the phonograph? A. No.

Q. When did you find out “Livery Stable Blues” was on a record? A. We went out to a Café out at Burnham, someone put a nickel in one of these machines, and put the nickel near the “Livery Stable Blues”, and it played that, that was the first time I heard it.

Q. That was how long before you played it for Shrigley? A. That was afterwards.

Q. How long afterwards? A. About a month.

Q. When was it in point of time that you and Kelly and Nunez and Shrigley played this number together at the Sherman Hotel to enable Shrigley, the pianist, to take the composition down in staff notation? A. The exact date I cannot tell you the exact date.

Q. Give me the nearest you can then? A. About the middle of April.

Q. What year? A. 1917.

Q. And when was it that you heard this number on the phonograph? A. About a month or three weeks later. The number had been out probably two months before them, but I never heard it.

Q. You said that the composition now known as “Livery Stable Blues” is your composition the “More Power Blues”, with the addition of an introduction, and the addition of descriptive matter consisting of a pony cry and a rooster crow? A. Yes, sir.

239

Q. Will you now, in the presence of Mr. Smith, hum The “More Power Blues” or sing it as you played it in New Orleans in 1912, when you said you composed it so that he may take the number down in staff notation just as you had composed it? Mr. White: Objected to as incompetent, immaterial and irrelevant. A. He can’t get an idea from me, I can’t sing a note.

Q. can you suggest a way whereby we can secure for the purposes of this trail in some tangible form, the composition “More Power Blues” as you composed it in New Orleans? A. The only was I know is playing it.

Q. What instrument do you play? A. The cornet.

Q. And when you composed this composition did you play it on any instrument? A. Cornet.

Q. Will you please get your cornet and play this number over for Mr. Smith so that he may take it down in staff notation? A. If Mr. Smith will come over to the Colonial Theatre I will play it for him this afternoon.

Q. And will you play it in the presence of Mr. Morse and Mr. Smith so they may take it down in staff notation? A. Yes, sir, surely.

Q. I want the number as it was composed by you in 1912, without the addition of the introduction or the descriptive part that you speak of. A. Yes, sir.

Q. You told your counsel that this “More Power Blues” was a rag time composition? Is that right? A. Yes.

Q. What do you mean by rag time? A. Syncopated.

Q. Syncopated time? A. Yes, sir.

240

Q. How does it differ from “Livery Stable Blues”? A. In no way, only they have an introduction to it, and they have got an interlude as I said before, made descriptive.

Q. You said it had an interlude played in an odd way, what do you mean by that? A. It was an odd strain. It was a strain something out of the ordinary.

Q. What do you mean by that? A. It was syncopated in a different way.

Q. How does the syncopation of this number differ from the other rag time numbers now on the market? A. It is a different rhythm in certain spots.

Q. What spots? A. Different spots, especially the interlude.

Q. I show you now the composition “Livery Stable Blues” published by Roger Graham and ask you to point out what spots in that composition differ from rag time compositions now on the market? A. I don’t read music, therefore, I cannot read this copy and show you.

Q. You said it had a strange strain of melody that was different from any other. Can you describe the character of this strange strain that was composed? A. It was a weird strain.

Q. What did Kelly have to do with the “More Power Blues”? A. Kelly was a man I was working for, and I went to him for some advice.

Q. Advice on what? A. In regards to what I could do to protect my number that was being played under another name.

Q. Didn’t you tell us a moment ago that Kelly played this number for Shrigley? A. Yes, sir.

Q. Was he a musician? A. Yes, sir.

241

Q. Was he a member of the band? A. Yes, he was the leader of the band.

Q. And you now say that you went to Kelly to secure protection for your song? A. I asked him what I could do.

Q. Didn’t you tell us that when a person came up and asked to have the band play the “Livery Stable Blues”, that after Nunez had told you it was the “More Power Blues” with an introduction and the descriptive part, that you sent for Shrigley and you and Kelly and Nunez went up to a room at the Hotel and played the number to enable Shrigley to take it down in staff notation? A. Yes.

Q. What was your idea in having Shrigley take it down in staff notation? A. To have a manuscript copy made.

Q. For what purpose? A. To have it published.

Q. By what person? A. Roger Graham.

Q. Had you talked to Roger Graham about this composition before you sent for Shrigley? A. No, sir.

Q. Had you talked to any person about publishing this number before you saw Shrigley? A. I spoke to Kelly.

Q. When did you speak to Kelly? A. That night on the band stand, Kelly and Nunez.

Q. Please tell us all that you said and all that Kelly said and all that Nunez said that night on the band stand, concerning the “Livery Stable Blues” and “More Power Blues” when somebody came and inquired of the band to play “Livery Stable Blues”? A. Nunez, he says, “you know the number.” I told him I never heard it, and he says “it is “More Power Blues,” that I played in the Schiller with the Dixie Land Jass Band with Ernie Erdman, the piano player wrote the introduction, and also gave it the name, and I made the interlude descriptive.” And then Kelly said, “we will play it if it is “More

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Power Blues,” we all know that” only explained to us where this descriptive part comes in, which Nunez did.

Q. Was anything else said? A. We played it. Then after we played it I asked Kelly, what could be done in case they were playing my number, I didn’t hear the record. Kelly says, the only thing to do is to get it written out in manuscript form and give it to a publisher, or rather sell it to a publisher.

Q. What was Kelly’s full name? A. Albert R. Kelly.

Q. What did he have to do with this band in which you were playing? A. It was his band, I was under contract to him.

Q. He had the management of the band? A. Yes, sir.

Q. Have you told us all that was said? A. All that was said that night on the band stand, yes.

Q. When was the next conversation the three of you had concerning this number, “More Power Blues”? A. It was after we played it and Shrigley took it down.

Q. Shrigley took it down that same night? A. No, the next day.

Q. How many times did Mr. Kelly and Nunez or any person or persons play the “Livery Stable Blues” before Shrigley came to take it down? A. How many times?

Q .Yes. A. Twice that night, in the ball room.

Q. Before Shrigley came? A. Yes. The next morning Shrigley came.

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Q. Was the performance given in public or private? A. What do you mean?

Q. When you played this number in the ball room that night was it played publically or privately? A. It was an informal affair, and we played it.

Q. You mean there was some entertainment going on? A. A couple of novelty specialty acts, in between we played.

Q. Was the ballroom open to the public? A. No, sir, you had to have an invitation.

Q. But there were outsiders there? A. Yes.

Q. And you say without any rehearsal on that night after somebody asked Nunez to play the number, the band played it twice, without any rehearsal? A. Yes, they played it twice.

Q. Was it at this invitation affair that somebody came up and asked Nunez to play the number? A. Yes.

Q. How long a time elapsed between the time that somebody asked for the number and the time you actually played it? A. We played the number --- about twenty minutes.

Q. Do you now remember the name of the person that asked Nunez to play the number? A. No, sir.

Q. After Shrigley took down this number in staff notation what was done with the manuscript? A. We brought it over to Roger Graham.

Q. To whom did Shrigley deliver the manuscript of this number? A. To Kelly.

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Q. Who paid Shrigley for his services? A. Nobody.

Q. How long after Shrigley had taken down the number did you visit Roger Graham? A. That same afternoon.

Q. Who signed the contract with Roger Graham? A. Kelly, Nunez, Shrigley and myself.

Q. Did all four of you go to Roger Graham that afternoon? A. No, I think Kelly and I went over one afternoon and Shrigley and Nunez another.

Q. Did you and Kelly go over the same afternoon that Shrigley took down the number? A. Yes.

Q. And that you say was in the middle of April, 1917? A. Yes.

Q. Are you sure of that? A. I can’t be positive about the exact date, I cannot say exactly, in April, sometime in April.

Q. You are sure it was the month of April? A. Yes.

Q. Had you known Roger Graham before that time? A. In a professional way.

Q. Did you ever before that day tell Roger Graham you were the author of More Power Blues? A. No.

Q. Had you told any person before that time you were the author of “More Power Blues”? A. Everybody knew it.

Q. I ask you did you before that time tell any person that you were the author of “More Power Blues”? A. Yes.

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Q. What persons did you tell? A. I cannot recall just what persons, but I told a lot of them.

Q. Please jog your recollection and tell me the names of some persons to whom you told, before you saw Roger Graham in April, 1917, that you were the author of “More Power Blues”? A. Everybody that I mentioned in here knows it.

Q. The only names that you mentioned are Kelly, Nunez and Shrigley. Give me the name of other persons. A. Loyacano.

Q. He was a member of the band? A. Yes.

Q. He played with you in 1916? A.Yes, sir.

Q. And what other persons did you tell. A. I didn’t make it a point to tell anybody in particular because the number had not been so popular.

Q. It was played in all the cafes in New Orleans, wasn’t it? A. No, not all the cafes.

Q. In a great many of them? A. No.

Q. In the popular cafes? A. No, except where we played it.

Q. And you can’t give me the names of any other person other than those you mentioned, to whom you mentioned you were the author of “More Power Blues”? A. The number wasn’t popular, I didn’t think it was necessary to remember the names.

Q. You say that on the afternoon that the manuscript of the number was taken down in staff notation you and Kelly went to Roger Graham, is that right? A. Yes, sir.

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Q. Please tell all that you said and that Kelly said, and all that Graham said at that time. A. I asked Graham would he take a number and publish it on a royalty basis and he said, yes, he would if we had a manuscript copy and I gave it to him.

Q. Was that all that was said? A. That was all that was said.

Q. Was the contract signed then and there? A. Yes, sir.

Q. Have you a copy of the contract? A. Kelly has it in Chicago.

Q. How much royalty were you to get? A. Two cents a copy.

Q. Payable to you alone? A. No sir, to Kelly.

Q. Only to Kelly? A. We gave Kelly power of attorney to act for me.

Q. Who is “we”? A. Shrigley, Nunez and myself.

Q. What was Shrigley’s interest in the composition? A. He wrote it and made copies of it in manuscript form, so we recompensed him for his service.

Q. What about Nunez? A. Nunez composed some of the descriptive part, in other words, he invented it.

Q. What about you? A. it was my number.

Q. What about Kelly? A. Well, Kelly handled the business end of it.

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Q. What business end did he handle? A. That is what he is handling now, that is the business end of it.

Q. What about Ernie Erdman? You claim Ernie Erdman wrote the introduction to the number, where did he come in? A. I don’t know.

Q. how was he taken care of? A. I don’t know.

Q. Did you tell Roger Graham that Ernie Erdman wrote the introduction? A. I didn’t know it.

Q. You didn’t know it? A. No.

Q. Didn’t you tell us that on the night when a person came over to Nunez and asked him to play the “Livery Stable Blues” and you said you didn’t know it that Nunez said it is the “More Power Blues” that Ernie Erdman wrote the introduction to it, and he wrote the pony cry and the rooster crow, didn’t you say that? A. Yes, sir.

Q. So that when you went to roger Graham you knew Ernie Erdman wrote the introduction? Did you or did you not know that when you went to Roger Graham? A. I was only going by Nunez say-so. I wasn’t going to tell Graham that.

Q. Did you believe Nunez? A. I believed him, but I wasn’t going to swear to something on hearsay.

Q. You didn’t swear to anything did you? A. No, when you tell a man something you are not going to take it second handed.

A. Graham never asked about Erdman so I never mentioned it.

Q. But you told Graham that Nunez wrote the descriptive parts, didn’t you? A. I didn’t tell Graham anything about the number at all.

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Q. You told us a moment ago that you didn’t want to tell Graham that Erdman wrote the introduction because you got it second hand from Nunez, is that so? A. Yes, sir.

Q. But you were willing to accept Nunez statement, without further investigation that he, Nunez, wrote the descriptive parts? A. Because I knew he wrote it.

Q. How? A. Because they never played it until he played it with them.

Q. Who were they? A. The Dixie Land Jass Band.

Q. Of which Nunez was a member? A. Yes.

Q. Didn’t you know the Dixie land Jass Band had been playing “Livery Stable Blues” for a long time before you came--- A. No, sir, they were not.

Q. When for the first time in your life in point of time did you find out that the Dixie Land Jass Band was playing the number? A. the first time I heard it?

Q. No, when you found out that the Dixie Land Jass Band was playing the number? A. I never heard them play.

Q. I ask you when you found out they were playing the number? A. I never found it out until after they had gone to New York.

Q. You mean to say that you never heard that the Dixie Land Jass Band was playing this number in Chicago before April, 1917? A. Does that seem impossible not to know it? No I didn’t.

Q. Didn’t you say to me that you went to Kelly to ask him for protection in case the Dixie Land Jass Band played the number? A. No, I didn’t say that. Is aid I went to Kelly to ask him what protection I could get if they were playing my number, what protection could I get. 249

Q. You mean you thought that at that time they were playing your number? A. Because this party that came up and asked us to play the number said he heard it on the record, he bought a record or something. That was way after the Dixie Land Jass Band had been in New York.

Q. Didn’t Nunez tell you that the Dixie Land Jass Band was playing this number? A. They were in New York when I played with him.

Q. Didn’t he tell you they played the number? A. That night he told me, yes.

Q. So you knew that night that his number had been played by the Dixie Land Jass Band, didn’t you? A. I knew that night it had been played, but I never heard it played.

Q. I am not asking as to whether you heard it played, I am asking you whether you didn’t on that night, when somebody came up and asked the band to play this number that Nunez didn’t tell you that the Dixie Land Jass Band had been playing the number? A. Nunez told me they had been playing it, yes sir.

Q. Did he tell you how long they had been playing it? A. No, sir.

Q. Did you ask him? A. No, sir.

Q. Weren’t you interested to know? A. All I was interested was to play the number that night, as soon as he told me let’s play it, he thought it was my number and we played it.

Q. You say that a person came in that night with a phonograph record of the number? A. No, sir, he had heard it on the phonograph.

Q. Did he tell you that? A. Yes, sir.

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Q. Did you have a conversation with that person? A. No more than merely to say I didn’t know the number, I said I don’t know it under that name, and he told me that the number had been played on the phonograph. He said he bought the record, and just at that time Nunez spoke up and he said you know the number and I said I don’t know it.

Q. Upon learning that his number had been reproduced upon phonograph records did you sent out and get one? A. No, sir.

Q. How long after that day did you send out to get a phonograph record of this number? A. I never did send out to get a record.

Q. Weren’t you interested to find out who played the number for the phonograph records? A. It was rumored around that they had played it, and I saw the record in the window in Lyon & Healy’s window, but I never bought the record, never heard it until I went to a Café one night about a month later.

Q. Was it after you found out that the number was yours that you saw the record advertised in Lyon & Healy’s windows? A. Yes, sir.

Q. How long after? A. I should judge about two or three days after.

Q. And although you were the owner of the number and you knew it was reproduced on phonograph records without your comment, you took no interest to find out who played it for the record? A. The only interest I took I went to a publisher and asked him to publish it for me. That is the interest I took in it. I didn’t hear who played it.

Q. Did you write to the Phonograph Company at once and tell them they were unlawfully reproducing a number that belonged to you? A. No.

Q. Did you write to the Dixie Land Jass Band that they had no right to play that number? A. No. Roger Graham attended to that.

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Q. Did you write to them or any of them to the effect that this band had no right to reproduce this number upon phonograph records? A. No, sir. I didn’t write myself.

Q. You say that the title “Livery Stable Blues” was suggested by some person other than yourself? A. Yes, sir.

Q. And that the introduction of the number belonged to somebody else? A. Yes.

Q. How many bars of music did that introduction consist of? A. About eight bars.

Q. And was that introduction repeated in whole or in part in the composition? A. No, sir.

Q. What person did you say suggested the title “Livery Stable Blues”? A. Ernie Erdman.

Q. When you saw Roger Graham on the day that you delivered to him the manuscript as prepared by Shrigley and when you received from him the contract under which you and Nunez, Shrigley and Kelly were to divide the royalties accruing from the sale of the number, did you tell Graham that another person besides you four was interested in the composition? A. He never asked me and I never told him.

Q. Did you—But you knew at the time that Ernie Erdman owned the title and that he owned the introduction? A. I didn’t find out from Erdman himself until months later.

Q. But you did know when you went to see Roger Graham? A. I heard it.

Q. You heard it from your partner, Nunez? A. Yes, sir.

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Q. And you were willing to allow Mr. Graham to publish as yours that which you knew you didn’t own? A. Make that a little plainer.

Q. You were willing to allow roger Graham to give you credit as author of that which you didn’t own? A. I explained to him before I gave him the number. I told him that that was not my title.

Q. Did you tell him it was not your introduction? A. I told him that.

Q. When did you tell him that? A. When I brought the manuscript over to him. I didn’t tell him it was Ernie Erdman’s I said it was not mine.

Q. So before you signed the contract on that afternoon you did tell roger Graham that you didn’t own the title, and that you didn’t own the introduction? A. Yes, sir.

Q. Do you now want to take back the statement that you made earlier in your cross- examination to the effect that the reason you didn’t tell Roger Graham that the title and the introduction belonged to somebody else was because you got it second-hand from Nunez? A. Repeat the question.

Q. Do you now want to take back the statement that you made in the earlier part of your cross-examination to the effect that the reason you didn’t tell Roger Graham that Ernie Erdman had invented the title and wrote the introduction was because that information came to you second hand? A. No, sir, I don’t want to take that back.

Q. You stand by that? A. Yes, sir.

Q. So you stand by both answers? A. Just the way I answered it, let it stand.

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Q. When you told Roger Graham that you didn’t own the title and you didn’t own the introduction, did he ask you who was the owner or composer or originator of the title and the introduction? A. No, sir. He said it made no difference, they cannot copyright a title or a name.

Q. Or an introduction? A. He didn’t say anything about an introduction. I simply told him that the title and the introduction wasn’t mine.

Q. The introduction contained a strain of the number didn’t it? A. No, sir. It was a strain, but the strain never was repeated in the number.

Q. There was a strain? A. Yes.

Q. It wasn’t invented by you? A. No.

Q. Did you see the number after it was published? A. I saw a piano copy.

Q. You saw it in the form in which it now appears in Exhibit B, after it was published by Roger Graham? A. Yes, sir.

Q. How soon after you and Kelly went to see Graham did you see it in the form Exhibit B? A. Two weeks after, two or three weeks.

Q. Were you ever a member of the Original Dixieland Jass Band? A. No, sir.

Q. When you saw the inscription on the first page of the music of this number “By Ray Lopez and Alcide Nunez of the Original Dixieland Jass Band.” Did you tell Graham to change that inscription? A. I called Graham’s attention to it and told him I had never been a member of that band and he said that made no difference as Nunez had been a member and he had unequal share in the number, and that could stand for him or for me, for either one of us.

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Q. Or both? A. No, sir.

2 P.M. At the request of the witness and with the consent of both counsel, continuation of the examination of the witness was adjourned from 2 o’clock to 5:30 P.M. at the same place.

5:30 P.M. Continuation of the examination of the witness Raymond E. Lopez

PRESENT: NATHAN BURKAN, of counsel for plaintiffs LEWIS WHITE, of counsel for defendant

The witness was called and failed to appear. Mr. white stated that both counsel and commissioner having waited for the witness from 5:30 P.M. until 6:30 P.M., and the witness having failed either to appear or communicate with counsel for the defendant or with the commissioner, that the examination would have t be left incomplete. That he would communicate with the attorney representing the defendant in Chicago.

I. RAE HARTMAN, a Notary Public in and for the State of New York, County of New York, do hearby certify that the above named witness Raymond E. Lopez was by me first duly cautioned and sworn to testify the truth, the whole truth and nothing but the truth; that said witness resides at a greater distance from the place of trial than one hundred miles; that the taking of said deposition was commenced on October 8, 1917 at 11 A.M. at the offices of Nathan Burkan, #165 Broadway, Borough of Manhattan, New York City, by agreement between counsel for both parties and with my consent notice having been waived. That at 2 P.M. the cross- examination of the said witness not having been completed, at the request of the said witness and with the consent of both counsel and myself, the continuation of the witness was adjourned from 2 o’clock to 5:30 o’clock P.M. at the same place. That at 5:30 P.M. counsel for both parties appeared and the witness was called for the continuation of his examination. The witness failed to appear.

Both counsel and myself waited for the appearance of the witness until 6:30 P.M. when Mr. White, of counsel for the defendant, stated that both counsel and commissioner having waited for the witness from 5:30 P.M. until 6:30 P.M. and the witness having failed either to 255 appear or communicate with counsel for the defendant or with the Commissioner, that the examination would have to be left incomplete. That I have waited up to the execution of this certificate, to wit: October 8, 1917 at 5 p.m. to have the witness read over the said testimony and subscribe to the same before we, but the said witness has failed to appear or communicate with me in any manner. That the deposition of the said witness, as far as it was taken,, was reduced to writing upon a typewriter by as and is herewith annexed. That I am not connected by blood or marriage with either of said parties, nor am I of counsel or attorney to either of said parties, nor am I of counsel to attorney to either of said parities, nor invested directly or indirectly in even of the causer.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal this 8th day of October 1917.

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In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

Now come Max Hart, Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, the above named plaintiffs, by E.S. Hartman, their attorney, and move the court that the deposition of Ray Lopez, purporting to have been taken on behalf of the defendant in the above entitled cause, which said deposition has been filed in this cause, be suppressed for the following reasons, to-wit: 1. The complainants were deprived of the benefit of cross-examination of said witness at the taking of said deposition by the act of said witness, as appears by the matters and things stated in said deposition;

2. Said alleged deposition, in so far as the same was taken, is not signed or subscribed by said witness;

3. Said alleged deposition was not after the same was reduced to writing read over by or to said witness.

Dated, Chicago, Illinois, October 10th, 1917. ES Hartman Attorney for Plaintiff

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Defendant’s Amended Answer

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

The amended answer of Roger Graham, defendant to the bill of complaint of Max Hart et all complainants. This defendant now and at all times hereafter saving and reserving unto himself all benefit and advantage of exception which can or may be had or taken to the many errors, uncertainties and other imperfections in the said bill contained, for answer thereunto or to so much and such parts thereof as this defendant is advised it is or are material or necessary for him to make answer unto answering says, etc.,

1st- This defendant neither admits nor denies that said complainants were and now are citizens of the United States. 2nd- This defendant admits that he is a resident of the City of Chicago, State of Illinois and now has an office for the transaction of his business at 143 North Dearborn St., Chicago, Ills., and that he is engaged in the business of publishing and selling music and musical composition in sheet music form. 3rd- This defendant denies that on or about the year 1914 said complainant, Dominic James LaRocca composed and originated the music of a certain musical composition which was given the title “Barnyard Blues,” and neither admits nor denies but demands strict proof thereof that the said James J. LaRocca, prior to the commencement of this action and in the month of February, 1917, for a valuable consideration, sold, assigned, transferred and set over unto each of the complainants, Henry W. Ragas, Lawrence Shields, Anthony Sbarbaro, and Edwin D. Edwards, an undivided one fifth interest in the said musical composition and in all of his right, title 258 and interest in and to the same and in the whole thereof, the said Dominic J. LaRocca retaining the remaining one-fifth interest therein; that the said musical composition was not the original conception and invention of the said Dominic J. LaRocca, but on the contrary this defendant claims and alleges that one Ray Lopez and Tom Brown were the originators and composers of the original melody of said composition which was known as “More Power Blues”; that the said Alcide Nunez originated and conceived the idea of putting animal cries in said composition by playing same on his instrument, and this defendant is informed and believes that the said Brown, Lopez and Nunez are the originators and composers of the composition known as “Barnyard Blues” and “Livery Stable Blues”. 4th- This defendant neither admits nor denies that Max Hart, one of the complainants herein on the 9th day of April, 1917, through the authorization of the other complainants copyrighted said musical composition known as “Barnyard Blues,” as set forth in Paragraph Four of said Bill of Complaint. This defendant further answering admits that said musical composition had not been published publicly, distributed or reproduced in copies for sale by complainants or either of them, or anyone else with their consent or authorization. This defendant answering neither admits nor denies that he right to copyright said musical composition, the “Barnyard Blues,” was granted to complainant, Max Hart, subject to the conditions that the performing and publication rights there in shall belong to the complainants, Ragas, LaRocca, Shrigley, Sbarbaro and Edwards, who claimed to be the sole owners of the performing and publication rights thereof; 5th- This defendant further answering neither admits nor denies that the register of copyrights issued to the complainant, Max Hart, a certificate of copyrights registration of the said musical composition, “Barnyard Blues”, in pursuance to the copyright law as more fully appears by the certificate of copyright registration, a true copy of which is attached to the said bill of complaint, and that the said Max Hart is now the copyright proprietor of such musical composition, “Barnyard Blues”. 6th- This defendant further answering denies that said composition, “Barnyard Blues”, has been performed throughout the United States and has acquired great popularity and a valuable reputation with the public, and that same is attractive, pleasant and successful, and has been a source of great profit to the complainants; that the said musical composition is of great value and exceeds in value the sum of $5,000.00 and the amount involved in this litigation exceeds the sum of $3,000.000. 7th- This defendant further answering denies that he cognizant of the popularity and great success of the said composition known as “Barnyard Blues,” and with full knowledge of the complainants’ rights therein and thereto, and with full knowledge of the copyrights thereto and with full knowledge of the copyright therein did on or about the month of May, 1917, and thereafter unlawfully paused and still continues, and threatens 259 to continue to cause to be published and placed upon the market for sale in the various music stories in the City of Chicago and throughout the different cities of the United States a musical composition entitled “Livery Stable Blues.” 8th- Defendant further answering claims that he has the full power, right and authority to publish the composition known as “Livery Stable Blues” from the author thereof, and that same has been copyrighted by this defendant. This defendant answering denies that the publishing of said musical composition known as the “Livery Stable Blues” is causing any injury and damage to the said complainants, and if allowed to continue will destroy the value of plaintiff’s rights in and to the said musical composition known as “Barnyard Blues,” and if this defendant be permitted to continue such wrongful and unlawful acts the complainants will be irreparably damaged but on the contrary states and claims that the composition known as “Barnyard Blues” is an infringement on the composition of this defendant known as “Livery Stable Blues”. This defendant answering denies that said complainant are entitled to the exclusive right in and to the said composition known as “Barnyard Blues” and denies that any act of this defendant will damage the said complainants to such an extent that no damage can be recovered by an action at law, and that no damage recovered by an action at law will afford the complainants adequate relief, and the damages which will be suffered by them are not capable of estimation or calculation. 9th- The defendant further answering neither admits nor denies that said complainants have no adequate remedy at law. 10th- Defendant further answering claims that Ray Lopez and Tom Brown are the original authors and composers of the melody of the composition known as “More Power Blues”; that said composition was composed in 1913 in New Orleans and played there continuously by Brown’s Band of which Tom Brown was owner and manager, and in which Band Lopez was a cornet player; that in March 1916 at the Schiller Café in the city of Chicago the said Alcide Nunez originated various animal cries on the clarinet and added such animal cries to the composition known as “More Power Blues”; that one Ernie Erdman wrote and suggested an introduction to the said amended composition and gave said composition the name of “Livery Stable Blues”; that the said LaRocca and Nunez were members of an orchestra in March 1916 that played at the Schiller Café and was known as Steins Dixieland Jazz Band; that said Band was composed of Henry W. Rages, Dominic J. LaRocca, Edwin B. Edwards, J.A. Stein, and Alcide Nunez; that the members of said Band had not played together as a band prior to their engagement in Chicago in March 1916, and this defendant is informed and believes that all of the members of the said band had played the composition known as “More Power Blues” prior to the coming of said band to Chicago, because this defendant is informed that the said band did play “More Power Blues” at the Schiller Café upon their arrival in Chicago;

260 that shortly after their arrival in Chicago Nunez suggested the various animal cries, and the band played the composition which was called “Livery Stable Blues”. 11th- This defendant further answer represents that he holds a copyright on “More Power Blues” written and composed by Tom brown and Ray Lopez which was the original melody from which “Livery Stable Blues” was taken and in addition thereto holds a copyright on “Livery Stable Blues” as composed by Nunez and Lopez. 12th- This defendant further answering claims and charges that said complainants have not come into this court with clean hands; that the composition “Barnyard Blues” and “Livery Stable Blues” are taken from the melody of “More Power Blues”, and that “Livery Stable Blues” is the same composition as “More Power Blues” with the addition of the animal cries. 13th- This defendant further answering states that said complainants have made a contract with the Victor Talking Machine Company, a corporation of Camden, N.J. to make and publish records of the composition known as the “Livery Stable Blues” which composition is owned by this defendant; that this defendant secured a copyright of said composition, No. 403401 on the 24th day of May, 1917; that said complainants have no right or interest in and to said copyright or title known as “Livery Stable Blues”; that the Victor Talking Machine Company has sold and distributed a number of records of the “Livery Stable Blues”. 14th- This defendant further answering states that in May, 1917, he published a musical composition of the “Livery Stable Blues” for piano and other musical instruments; that said composition has been sold throughout the United States and said composition has acquired a popular sale and a valuable reputation throughout the United States; that said composition has been a source of great profit to this defendant and is of great value, and exceeds the sum of ten thousand ($10,000.00) dollars. 15th- This defendant further answering states that he has not authorized the Victor Talking Machine Company to make, sell or distribute any records under the name “Livery Stable Blues”; that said Victor Talking Machine Company has considerable money on hand as royalties for the sale of said records known as “Livery Stable Blues”, and this defendant is afraid and believes that said money will be turned over to said complainants to the damage of said defendant. 16th- This defendant further answering states that he is and has at all times been a citizen of the United States. 17th- This defendant further answering states that he is informed and believe that said complainants are musicians by occupation; that he is informed and believes that they are not financially responsible, and should the Victor Talking Machine Company turn over said money to them this defendant will be unable to recover same from said complainants.

261

This defendant further answering states that said complainants have made contracts with sundry and divers firms, the names and address of which are unknown to this defendant, for mechanical musical instruments and other mechanical machines from which they receive or expect to receive a large revenue for composition known as “Livery Stable Blues”; that the amount of said royalties is unknown to his defendant and this defendant is informed and believes that same will exceed $3,000.00; that this defendant is informed and believes that said complainants have received large sums of money as royalties for the composition known as “Livery Stable Blues”, and that this defendant is entitled to such money so received but said complainants are unlawfully and illegally withholding the same form this defendant. And this defendant claims a full and complete discovery of all such money, property, effects and things in action, held or controlled by said complainants or anyone of them, in trust or otherwise, for the benefit of this defendant. 18th- And this defendant further answering prays that each of the above named complainants shall set forth and state the nature and description of any and all contracts they have for said composition known as the “Livery Stable Blues”, or the “Barnyard Blues”, and shall state the amount of money that they or each of them have received from any person, company, or corporation as royalties, or otherwise, for the sale of said composition known as “Livery Stable Blues” or “Barnyard Blues”. 19th- And this defendant further answering states that he has no adequate remedy at law. Wherefore, this defendant prays. (a) That said complainants, Max Hart, Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, each and every one of them may be required upon their several and respective corporal oaths, according to the best and utmost of their several and respectable knowledge, remembrance, information and belief to full, true, direct and perfect answer make to all and singular the matters and things heretofore stated and charged as fully and particularly as if the same were here again repeated and they severally thereto distinctly interrogated paragraph by paragraph, and especially that they and each one of them may set forth copies of all contracts now in existence for the publication, distribution, and sale of said composition known as “Livery Stable Blues” and “Barnyard Blues,” and especially that they may each set forth and state the facts and circumstances attending each contract, the amount of money actually paid thereon by the person, company, or corporation, with whom said contracts are made, and how and in what manner the payments were made or were to be made, and that the said complainants may also severally answer make to all allegations set forth in this answer. (b) That an injunction may be allowed against said complainants restraining them and each one of them from collecting, receiving or accepting any money or moneys on any contract with any person, firm, company or corporation as royalties or 262

otherwise for the sale, publication, and presentation of said composition known as “Livery Stable Blues” or “Barnyard Blues” until further order of this court. (c) That a receiver may be appointed with the usual power and duties of a receiver, to collect all monies which may be due under staid contracts until the further order of this court. (d) That said complainants, and each of them, may be compelled to account either to the receiver or to this defendant for the number of copies of said corporation known as “Livery Stable Blues” and “Barnyard Blues,” published, printed and sold by them. (e) That said complainants, their agents, solicitors and servants may be restrained and enjoined during the pendency of this action and perpetually thereafter from publishing, printing, selling or otherwise distributing said composition known as “Livery Stable Blues” and “Barnyard Blues.” (f) That said complainants may be compelled to pay said defendant such damages as he has sustained in consequence of the complainants’ unlawful acts and doings besides the costs and reasonable solicitors fees. (g) And that said defendant may have such other and further relief in the premises as may be just and equitable. a. And this defendant denies all and all manner of unlawful combination and confederacy, wherewith he is by the said bill charged, without this, that there is any other matter, cause or thing in the complainants’ said bill of complaint contained, material or necessary for this defendant to make answer unto and not herein and hereby well and sufficiently answered, confessed, traversed and avoided or denied, is true to the knowledge or belief of this defendant; all of which matters and things this defendant is ready and willing to aver, maintain and prove, as this honorable court shall direct, and prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. Roger Graham being first duly sworn deposes and says that he is the defendant in the above entitled cause; that he has read the foregoing Answer by his subscribed and knows the contents thereof; that the matters and things in said Answer contained are to to his knowledge except such matters and things as are therein stated to be on information and belief and as to those matters he believes them to be true. Roger Graham Signed and sworn to before me on the 12th day of October 1917 Notary Public

263

Fred Lowenthal, Esq., Attorney for said Defendant:

YOU ARE HEREBY NOTIFIED, That on Thursday, the 11th day of October, 1917, at ten o’clock A.M., or as soon thereafter as counsel can be heard, I shall before his honor, Judge Carpenter, in the room usually occupied by him as a courtroom in the Federal Building in the city of Chicago, Illinois, move that the deposition of Ray Lopez, purporting to have been taken on behalf of the defendant in the above entitled case, which said deposition has been filled in this cause, be suppressed for the following reasons, to wit:

1. The complainants were deprived of the benefits of cross-examination of said witness at the taking of said deposition by the act of said witness, as appears by the matters and things stated in said deposition; 2. Said alleged deposition, in so far as the same was taken,. is not signed or subscribed by said witness; 3. Said alleged deposition was not after the same was reduced to writing read over by or to said witness. ES Hartman Attorney for Plaintiffs.

Received a copy of the foregoing notice this 10th day of October, 1917. Fred Lewenthal Attorney for Defendant.

264

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart et al. complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

The petition of the above named defendant respectfully represents until this court that defendant has filed his answer to the bill of complaint herein more fully set forth in records of said cause; that since the filing of said answer your petitioner has been advised by his counselor, and believes that it is essentially to his rights in this cause that his answer should be amended as shown by the amended answer herewith presented that in said answer you petitioner sets forth that Ray Lopez was the original composer of the melody claimed by both complainant and the defendant and since the filing of said answer this defendant has found out that one Tom Brown is the joint author and composer of the melody with said Ray Lopez and is desirous of amending his answer in accordance with the facts disclosed by the evidence secured by said defendant. The petitioner further presents that he had no knowledge of the facts stated in said answer at the time he filed the original answer to the bill of complaint and he therefore prays that he may be at liberty to file this amended answer in lieu of the answer originally filed. Roger Graham [signed]

State of Illinois County of Cook On the 11th day of October, personally appeared before me Roger Graham, the defendant in the above entitled cause, who stated that he has read the foregoing petition and knows the contents thereof that same is true. Ignare E Weiss [signed] Notary Public

265

Countersuit

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

No. 914

And now comes Roger Graham, defendant herein, by Fred Lowenthal, his solicitor, and suggests to the court in pursuance of the statute in such case made and provided, that by reason of wrongful suing out of the injunction in the above entitled cause, this defendant has sustained damages in the manner following:

First- This defendant has been compelled to and will have to pay the reasonable fees and charges of his solicitor and counsel in the sum of $763.00 and for other charges and expenses in and about the procuring of the dissolution of the said writ of injunction. Second- This defendant has paid to F.W. Woolworth Company the sum of $209.16, same being refunds to date for such musical composition known as “Livery Stable Blues” which were returned by said Woolworth Company as a result of the issuance of said injunction. In addition thereto, this defendant has paid and returned to various customers the sum of about $20.00 for orchestrations and copies of said composition which were ordered during the period covered by said injunction. Third- This defendant returned orders from the following customers during the period covered by the injunction on which he would have received the following profits, via:

266

Profit Total 5000 Copies S.H. Kress & Co. @7c 4c $200.00 5000 “ S.S. Kresge Co. @7c 4c 200.00 5000 “ Woolworth Co. @61/2c 34c 175.00 10000 “ McKinley Music @6c 3c 300.00 Co. $875.00

That said orders have never been renewed since their cancellation.

Fourth- this defendant made an average profit of 31/2c on each composition sold; that the injunction was issued in said cause on September 15, 1917 and was dissolved on October 12, 1917; that for several weeks prior to the issuance of said injunction his sales per week were as follows:

July 30 to August 4th 2500 Aug. 6 to August 11th 2825 Aug. 13- to August 18th 2600 Aug. 20 to August 25th 2775 Aug. 27 to Sept. 1st 2900 Sept. 4 to Sept. 8th 3200 Sept. 10 to Sept. 15 4945

That the week of Oct. 15, 1917 he sold about 6500 copies and for several weeks thereafter the sales of said composition ran about 7000 copies per week. This defendant, therefore, claims that he would have averaged about 5500 copies per week for the four weeks that the injunction as pending or about 22,000 copies for said period, making a total loss of about $770.00 to this defendant during the period covered by the injunction; that said composition during the months of August and September have been excessively advertised by said defendant and as a result of said advertising he received numerous orders for the “Livery Stable Blues” which said defendant was unable to fulfill because of the pendency of said injunction; that this defendant has expended about $500.00 for advertising prior to the issuance of said injunction from which he has received no material benefit because he was unable to fulfill orders by reason of the issuance of injunction in the above entitled cause. Fifth- This defendant paid out the sum of $7.00 to the marshal of this Honorable Court for the purpose of subpoenaing witnesses to procure the dissolution of injunction as aforesaid. Sixth- This defendant further shows that the National Surety Company on the 15th day of September, 1917 signed an injunction bond in this cause for the sum of $2000.00 267 which was filed and approved in this Honorable Court on the 17th day of September, 1917. By means whereof this defendant has sustained damages in the sum of $4000.00 which said damages remain wholly unsatisfied and unpaid to said defendant. Wherefore this defendant prays that damages may be assessed against the complainants and the said National Surety Company, surety herein, and this defendant have such other relief in the premises as to the court shall seem just and that all necessary and proper orders be entered.

Roger Graham Fred Lowenthal Solicitor for Defendant

268

Notary Notice

State of Illinois County of Cook As

ROGER GRAHAM being first duly sworn deposes and says that he has read the petition by him subscribed and knows the contents thereof; that same is true in substance and in fact to the best of his information and belief.

Roger Graham Subscribed and sworn to before me this 19th day of December 1917

269

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

Gen. # 914

To E.S. Hartman Attorney for said complainants

You are hereby notified that on December 20th, A.D. 1917, at 10 a.m. or as soon thereafter as counsel can be heard, we shall appear before his Honor Judge Carpenter in the room usually occupied by him as a court room in the City of Chicago, said District and ask leave to file suggestion of damages upon dissolution of temporary injunction issued herein and shall ask the court o award adequate damages to said defendant. At which time and place you can appear if you so see fit.

Fred Lowenthal

Received a copy of the foregoing notice this 19th day of December, A.D/1918 ES Hartman Solicitor for complainant

270

Notice of Appearance

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

Gen. # 914

To E.S. Hartman Attorney for said complainants

You are hereby notified that on January 5th, A.D. 1918, at 10 a.m. or as soon thereafter as counsel can be heard, we shall appear before his Honor Judge Carpenter in the room usually occupied by him as a court room in the City of Chicago, said District and ask leave to file suggestion of damages upon dissolution of temporary injunction issued herein and shall ask the court to award adequate damages to said defendant. At which time and place you can appear if you so see fit.

Fred Lowenthal [signed]

Received a copy of the foregoing notice this 4th day of January, A.D/1918 ES Hartman [signed] Solicitor for complainant

271

DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

MAX HART, et al., Plaintiffs,

-vs-

ROGER GRAHAM, Defendant.

In Equity No. 914

Now come the plaintiffs, by E.S. Hartman their attorney, and respectfully show to the court that the suggestion of damages filed herein by the defendant on the 5th day of January, 1918, pursuant to order entered herein on that date was not filed in apt time, in this, that the above entitled cause was fully heard and tried by this court on October 11, 1917, and October 12, 1017, the same being days of the October 1917 term of this court; and on October 12, 917, the same being one of the days of the October 1917 term of this court, final judgment and decree was made and entered by this court in said cause after the said cause had been tried as aforesaid, dismissing the bill of complaint herein and defendant’s counterclaim herein for want of equity; that no notion or request by the defendant for an allowance of damages to him by reason of the suing out of the injunction in said cause was made or presented at the time of the rendition and entry of the said final decree as aforesaid, or at any time during the said October 1917 term of said court, or during the following November 1917 term of said court, or at any time prior to the 5th day of January, 1918, which is one of the days of the December 1917 term of said court; and that no order of any kind was made or entered in said cause in any way relating to damages by reason of the suing out of the injunction in said cause, or granting leave to the defendant to, or in any way relating to, the filing of any suggestion of damages to the defendant by reason of the suing out the injunction in said cause, until the said 5th day of January, 1917, which such suggestion of damages was filed herein as aforesaid: WHEREFORE plaintiffs say that this court is without jurisdiction in the matter of such suggestion of damages and move that said suggestion of damages filed herein on January 4, 1918, be stricken from the files, or that such other order as may be proper and appropriate in the premises be entered herein. And the plaintiffs deny that the defendant has sustained or suffered the damages, or any thereof, or any part thereof, mentioned in his said suggestion of damages by 272 reason of the suing out of the injunction in the above cause; and plaintiffs deny that the defendant is entitled to have any damages whatsoever assessed against the plaintiffs or any of them, by reason of the suing out of the injunction in said cause; and plaintiffs deny that the plaintiff is entitled to the relief, or any part thereof, prayed in his said suggestion of damages.

Signed, Max Hart, Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B Edwards, Plaintiffs, by ES Hartman, their attorney

273

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart Henry W. Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro and Edwin B. Edwards, complainants,

-vs-

Roger Graham, Defendant

In Equity, No. 914

Bill of Complaints and Counterclaim of Defendant

S T I P U L A T I O N .

All claims of Roger Graham, the defendant in the above entitled cause, for damages and costs arising out of the issuance of the preliminary injunction in the above entitled cause having been compromised and settled:

It is hereby stipulated and agreed by and between the parties hereto, by their respective attorneys of record, that the suggestion or damages or petition for damages, filed by said defendant, roger Graham, in the above entitled cause on or about the 5th day of January, 1918, shall be dismissed; and that an order be entered herein releasing and discharging the National Surety Company from all liability upon, or growing out of, its undertaking or injunction bond filed in said cause on or about September 18, 1917, in connection with the issuance of said preliminary injunction; and that each of the parties hereto pay or discharge all unpaid Court costs incurred by or charged to them respectively in said cause, and that if any decree shall have been entered herein for Court costs against any of the parties hereto, the same shall be satisfied of record.

Chicago, Illinois March 6th, 1918.

ES Hartman, Solicitor for Complainants Fred Lowenthal, Solicitor for Defendant 274

In the District Court of the United States For the Northern District of Illinois Eastern Division

Max Hart, Henry Ragas, Dominic James LaRocca, Lawrence Shields, Anthony Sbarbaro, and Edwin B Edwards Complainants -vs-

Roger Graham, Defendant

In Equity No. 914

Bill of Complainants And Counterclaim of Defendant

Upon written stipulation of the parties hereto this day filed herein, it is hereby ordered that the suggestion of damages, or petition for damages, growing out of the issuance of the preliminary injunction herein, filed herein by said defendant Roger Graham be dismissed, and that the National Surety Company be, and it hereby is, released and discharged of and from all liability upon, or growing out of its undertaking or injunction bond filed herein on or about September 18, 1917 in connection with the issuance of said preliminary injunction; entered in the above entitled cause against any of the parties to said cause be and the same hereby are satisfied.

275

Appendix C: Court Findings

IN THE UNITED STATES OF AMERICA IN THE UNITED STATES DISTRICT COURT For the Northern District of Illinois, Eastern Division of Chicago.

MAX HART, et al. v. ROGER GRAHAM Before Judge George A. Carpenter, J.

Friday, October 12th, 1917 About 3:30 PM

The Court rendered the following opinion orally:

THE COURT: Gentlemen, there is not any law to this case otherwise than would be ordinarily submitted to the determination of a jury. It seems to me it is a disputed question of fact, and it is passed on to the court just as any like case would be passed on to a jury. There is a dispute between the plaintiff and the defendant, two publishers, each claiming a right to the monopoly of this song, this musical production. No claim is made by either side for the Barn-Yard calls that are interpolated in the music, no claim is made for the harmony. The only claim appears to be for the melody. Now, as a matter of fact, the only value of this so-called musical production apparently lies in the interpolated animal and bird calls,--that is perfectly apparent form the evidence given by all the witnesses, and in a great many unimportant features the court has great difficulty in believing what some of the witnesses on both sides of this case have told the Court under oath, but that does not go to the real merit of this controversy. The cat calls and animal calls were not claimed in the bill and they were not included in the copyright, so we are to exclude them in this question.

276

The only question is, has there been a conceived idea of the melody that runs through this so-called Livery Stable Blues. I am inclined to take the view of Professor Slap White in this case, that it is an old negro melody, that it has been known for a great many years. The last witness says this “More Power Blues” is fifteen years old and the plaintiffs’ best witness Mr. LaRocca says it is ten years old, and from the evidence here which is in dispute - of the two young ladies who testified these are alike and unlike, the Court cannot attach any great value to it in this case because they do not agree. But the court is satisfied, from having looked over the manuscripts, that there is a very decided resemblance between the aria - the melody of “More Power Blues” and the Livery Stable Blues. The finding of the Court is therefore that neither Mr. La Rocca and his associates nor Mr. Nunez and his associates conceived the idea of this melody. They were a strolling band of players and like - take the Hungarian orchestra- accomplished the result and not the original music itself, and I venture to say that no living human being could listen to that result on the phonograph and discover anything musical in it, although there is a wonderful rhythm, something which will carry you along especially if you are young and a dancer. There are very interesting imitations, but from a musical stand-point it is even out-classed by our modern French dissonance. And the finding of the Court will be that neither the plaintiff nor the defendant is entitled to a copyright, and the bill and the answer will both be dismissed for want of equity.

277

Appendix D: Periodicals Regarding Hart et al. v. Graham

“A Brass Band Gone Crazy!” Advertisement, Victor Recording Company, March 7, 1917 Reprinted in “Voice of the Victor,” July issue, 1917, pg. 130.

Spell it Jass, Jas, Jaz or Jazz—Nothing can spoil a Jass band. Some say the Jass band originated in Chicago. Chicago says it comes from San Francisco—San Francisco being away off the continent. Anyway, a Jass band is the newest thing in the cabarets, adding greatly to the hilarity thereof. They say the first instruments of the first Jass band was an empty lard can, by humming into which, sounds were produced resembling those of a saxophone with the croup. Since then the Jass band has grown in size and ferocity, and only with the greatest effort were we able to make the Original Dixieland Jass Band stand still long enough to make records. That’s the great difficulty with a Jass band. You never know what it’s going to do next, but you can always tell what those who hear it are going to do—they’re going to “Shake a leg.” Just to show that a Jass band is a Jass band, and not a Victor organization gone crazy, we have included two other excellent selections for dancing which are so good that we have put them out as two other “Specials”— Dixieland Jass Band—One Step/Livery Stable Blues- Fox Trot Victor 18255. The Jazz Band is the very latest thing in the development of music. It has sufficient power and penetration to inject new life in a mummy, and will keep ordinary human dancers on their feet till breakfast time. “Livery Stable Blues” in particular we recommend because, on the principle that like cures like, this particular variety will be a positive cure for the common and garden kind of “blues.”

278

‘Jazzy Blues’ To Moan Lure in U.S. Court Federal Judge Carpenter Must Decide Who Wrote the Wiggly Epic of the Livery Stable. By A Swaying Jazz. Chicago American, October 3, 1917 [Dominic ‘Nick’ LaRocca Collection, William Ransom Hogan Jazz Archive, Tulane University, New Orleans] Federal Judge George A. Carpenter is going to get deeper and deeper into something awfully deep. He has to decide October 10 whether Dominic LaRocca, a coronet player, or Alcide Nunez, a clarinet player, wrote “The Livery Stable Blues,” a jazzy chef d’oeuvre with a meaning motif as of a pony neighing, or maybe a “mool.” And what does a federal judge know about hoss-trading? Each claims authorship, and LaRocca has filed a petition for an injunction restraining Nunez from publishing and affixing his name to this Livery stable thing. RESEARCH IS NECESSARY. Just before the judge harkens to the phonograph records of the piece he rendered by LaRocca, and then by Nunez, which will be played to court, he ought to wise himself up with some research. He will find something that will just about fix him up, an article on “The Appeal of the Primitive Jazz” by a recast number of the Literary Digest. Here is a dazzling burst of light quotes in the article from Professor William Morrison Patterson, who is pioneering in the phenomenon of “Jazz”; “With these elastic unitary pulses any haphazard series by masses of syncopation can be gaudery, because instinctively, coordinated. The result is that a rhythmic tune compounded of time and stress and pitch relations is created, the chief characteristic of which is likely to be complicated syncopation. “An arabesque of accentual differences, group-forming in their stature, is superimposed upon the fundamental time divisions.” Get that well in mind, judge. You’re going to need it. HAS ANCIENT ORIGIN. A historic background essential to the serious study of jazz, jass, jas, jaz, jasz or jascz, as you will, is furnished by Walter Kingsley of vaudeville. Says he: “In the old plantation days, when the slaves were having one of there are holidays and the fun languished, some West Coast African would cry out ‘Jas her up,’ and this would be the cue for fast and furious fun. “No doubt the witch-doctors and medicine men on the Congo used the same term at those jungle parties, when the totoms throbbed and the sturdy warriors gave their pep and added kick with rich brews of Yohim-Mix bark, that precious product of the Kamerunes. Today the phrase ‘Jaz her up’ is common in vaudeville and on the circus lot.

279

“And ‘Jazbo’ is a form of the word common in the varieties, meaning the same as ‘hokum’ or low comedy verging on vulgarity.” Then, bringing the data up to date, the article refers to the popularity of Jazz in the underworld resorts of New Orleans. “There in those wonderful refuges of basic folklore and primeval passim wild men and wild women have danced to jazz for gladsome generations. Ragtime and the new dances came from there, and long after jazz crept slowly up the Mississippi from resort to resort until it landed in South Chicago (meaning Hedgewich), at Freiberg’s, wither it had been preceded by the various stanzas of ‘Must I Hesitate?’ ‘The Blues’ ‘Frankie and Johnny’ and other classics of the levee underworld that stir the savage in us.

Discoverer of Jazz Elucidates in Court “Kid” Tells How He Wrote “The Livery Stable Blues” in Burst of Genius. Animals Inspired ‘Tune’ The Chicago Daily News, October 10, 1917 Home Edition, pg. 1

The Jazz Kid himself the giddy boy whose brain first got the big idea, did some fancy testifying before federal Judge Carpenter to-day. The issue was whether the jazz Kid or a party flaunting the name of Alcide Nunez actually rote “The Livery Stable Blues.” Well, the Jazz kid was there, answering in deep tones to the name of Dominick LaRocca. Before summoning the Kid to scatter light in the darkness, his attorney rehearsed the points at issue, proclaiming that Mr. LaRocca was the complainant and Mr. Nunez and a publisher named Roger Graham were the defendants. All rigged out in a pair of cloth topped patent leathers, a purple striped shirt and a green tunic, the Jazz Kid bounced into the courtroom and took the stand. He identified himself as the genuine Columbus of the Jazz, the Sir Isaac Newton of the latest dance craze and went into the following details: Once Worked in a Factory. You see, the Jazz Kid wasn’t always what he is now. Not always did the two carat piece of ice illuminate the right forefinger. There was a time when he worked in a factory in New Orleans, and coming home in the evening coaxed casual melody out of the family cornet. That was in 1914. “I was great on imitatin’,” admitted the Kid. “I was swell on imitating animals. So, you see, I got the idea in 1914, the idea for the Blues.” “May I ask?” inquired the judge “what are the blues.” The Kid answered, “The blues,’ said he, “is jazz. The jazz is blues. The blues means to the jazz what the rag means to ragtime, see?” “Proceed,” said the jurist.

280

“Well,” the Kid launched forth, “I came to Chicago with de original Dixie jazz band and we played in the Schiller café. See? Well, one night after the regular piece had been played der was a goil skylarkin’ on the floor, see? So I picks up the cornet and lets go a horse neigh at her.” “Did she answer?” inquired the jurist. But the Girl Only Smiled. “No,” said the Kid. “she only smiled. Then Stein, who was the trombone, he says “Great stuff, kid, put that in a number.” ‘I have’ I says, “I got one already and I give him the parts. The drums was to imitate a storm, the trombone was to imitate a jackass or a cow moo, the clarinet was to imitate a rooster and me with the cornet was to be there with the big horse neigh.” “Where did the music come in?” inquired the jurist. “Them was merely the interplitations,” said the Kid, “the music was right along and the interplitations follow within.” “I see,” said the judge. The Kid then recited how the Livery Stable Blues had been taken to New York and put on the talking machine and how it had made a hit and how he had next heard of it as being published by Graham under the name of Nunez and how he was right there to claim his rights and assert himself as the original Jazz Kid, the walloping cornetist who first invented the Blues. Tin Pan Alley Is on Hand Tin Pan Alley with its retinue of song boosters, musical critics, syncopation experts and financial giants was on the job, hovering in the corridors, humming and disputing the merits of the case. Nunez was also right there. It is Nunez’s contention that the Livery Stable or the Barn Yard Blues was not the work of one creative brain, that it rather evolved out of the combined genius of the Original Dixie Jazz Band of which he was a member. Whether the “smashing hit” will be yodeled or snorted on the brass for the edification of Judge Carpenter remained uncertain up to a late hour. This Jazz Kid and his tale of woe seem to have all the best of it, he being right there with dates and dope concerning the first thought, the first inspiration, the first performance of the contest composition. The case promised to occupy the day.

Nobody Wrote Those Livery Stable Blues At Least, So Says Man Who Combats the Jazz Kid’s Claim to Musical Fame Chicago Daily News, October 12, 1917, Home Edition, pg. 3

Now comes Alcide Nunez, the walloping troubadour, with the thrilling information that nobody wrote “The Livery Stable Blues.” This Nunez, one of the most

281 cynical clarinetists that ever tooted, took the stand in Judge Carpenter’s federal court today and gave the whole show away. Being accused by Dominick LaRocca, the Jazz Kid, of having published “the Livery Stable Blues” as his own, when he (LaRocca) was the regular, inspired little fella as first conceived it, Nunez handed it to the court straight. Pause Gerald, and learn how the great song hits and jazz roulades are written; how the big, smashing chansons are created. Sneering defiantly at the assembled claims of song boosters, pink shirted composers and all the retinue of Tin Pan alley, Nunez cut loose with the real dope. He wasn’t the giddy, temperamental fella that Dominick LaRocca was yesterday. But he was there with the stoical, unemotional truth of the matter. Nobody Writes That Stuff “You see,” he said “nobody wrote ‘Livery Stable Blues.’ Naw. Nobody writes any of that stuff. I invented the pony cry in the ‘Blues,’ and LaRocca, he puts in the horse neigh. We was in the schiller café, rehearsin’, see? And I suggests that we take the ‘More Power Blues,’ and has ‘em up a bit. My friend, Ray Lopez, he wrote the ‘More Power Blues.’ “All blues is alike. They come from a sort of song that all the colored folks sings when they gets lonely.” That’s all. And Alcide ought to know. He’s one of the noisy babies that blow the big musical bashes in the Casino Garden, in the blue Goose and all the other jazz joints. And what Alcide spilled can be taken as the real illuminating foot note to the nation’s music. “That’s what,” continued he. “We hashed up the ‘More Power Blues’ and put in the pony cry and the mule cry and the horse neigh, see? Then we rehearsed it for ten days, steaming it up and getting it brown and snapp. Then we had the piece all finished. Music His Middle Name. “No, I don’t read music. I’m a born musician. Yes, sir. I plays by ear exclusively. I’ve played in all the swell places with Kelly’s band- in the Sherman hotel and all over. I’m entitled to the authorship of “The Livery Stable Blues.” Me and Lopez, as much as LaRocca, that’s why I went to Roger Graham and had him publish it. LaRocco done me dirt, so I says to myself, ‘He’s done me dirt and I’ll let him out.’ He goes and has our ‘Livery Stable Blues’ put on a phonograph record as his’n. Well, ain’t that dirt?” “When you say you’ve played in the Casino, do you mean, Mr. Nunez, the Casino club at Chestnut street and Lake Shore drive?” queried his honor. “Naw.” Said Nunez, “I mean the reg’lar Casino Gardens.” “To cinch the matter Attorney Fred Lowenthal summoned Miss May Hill to the stand after the cynical clarinetist had said his say. Miss Hill, if possible, was more cynical than Alcide. She flaunted a flock of blues before the judge “The Chicago Blues. “The Alabama Blues.” “The New Orleans Blues,” “The Memphis Blues” and “The

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Livery Stable Blues.” and allowed with a great show of technical palavering that they were all alike. Harmony in Blend of Blues “Could they all be played at once?” inquired his honor. “They could, and produce perfect harmony,” said Miss Hill. The lady is one of the popular song boosters in the city and a composer herself of blues and jazzes. It looked today, although the proceedings will continue far into the afternoon, as if the round was Alcide’s. As for the Jazz Kid, LaRocca, he sat there, a curling smile upon his lips and a grieved and threatening light in his eye. The Jazz Kid, whose function on the cornet and with Alcide was one of the original babies in Mr. Stein’s Original Dixie Land Jazz band, clings to the notion that he is the sole inspired composer of “The Livery Stable Blues.” The big scene will come later, when Alcide and Dominck debate the question with the clarinet and horn.

At Last! Court Finds Man Who First Jazzed Chicago American, October 11, 1917, Sports Section, pg. 1 Reprinted in Chicago American, October 12, 1917, pg. 2 (section1)

The fine points regarding jazz music are a little clearer now in the mind of Federal Judge Carpenter. They were etched for him by witnesses and attorneys in the hearing on the appeal by Dominic La Rocca for an injunction preventing the publication of “The Livery Stable Blues” by anyone except himself. La Rocca claims to have written this jazz moan, which he says was inter “Lifted” by Alcide Numez, a Spanish clarinet player, and published by Roger Graham, the defendant. When La Rocca, the lawyers, a round, black, shiny phonograph record, a flock of witnesses and a long deposition fron Numez, who is in New York, were all lined up before the court the judge said: “Now, tell us what was your inspiration for composing this air and introducing the cries of animals?” THE INSPIRATION “Well a valve in my cornet got stuck and it made a funny noise,” explained LaRocca, who is a member of the Original Dixie Jazz Band, “I experimented with the bray or neigh, and finally worked out my livery stable melody. One day when our band had finished playing a number at the Schiller Café, here in Chicago, there was a girl sort of skylarking around the floor, and I blew a horse neigh at her on my cornet.” “Did she answer?” inquired the court.

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“She laughed, your honor. And then I taught my composition to the band. The clarinet played a rooster call, the trombone a cow moo or a donkey bray and I the horse neigh on my cornet. Everybody liked it,” said the composer. “I used to do electrical work, but I liked music and I worked into it. I’m not an expert.” WHO IS HAYDN? “Do you claim this use of animal calls is original? Have you ever heard Haydn’s ‘Kinder Symphony’?” “No, your honor, I never heard it.” Said the ex-electrician, “But I bet it isn’t my kind’er symphony.” “Well then, did you write the melody?” asked an attorney. “I did,” said La Rocca. “In the dictionary it says a melody is a tune or an air or a –“ elucidated the attorney. “The dictionary is not evidence in this case,” remarked the court with hidden and judge-like sarcasm. And then he went to his chambers for air or to whistle a little Haydn or something, and for a time left the livery stable left flat- jazz like that. During the examination of La Rocca the other witnesses were excluded, interned in the jury room. The reason was obscure.

Jazz Band Masterpiece Authorship in Dispute Dominic Claims Alcide Purloined His Tone Picture of Emotions of Lovesick Colt Chicago Journal, October 11, 1917 (Reprinted as “LIVERY STABLE BLUES” MIXED WITH BARNYARD La Rocca Asks Injunction to Stop Clarinet Player from Using Song Composition) [Dominic ‘Nick’ LaRocca Collection, William Ransom Hogan Jazz Archive, Tulane University, New Orleans, Louisiana]

Dominic LaRocca was once an electrician. The lure of the cornet tore him away from the business of giving light to the citizens of New Orleans. He roamed the streets, putting heart and soul into his wonderful horn. Dominic realized what spiritual messages might mean. He interpreted, through his cornet, the sweet braying of the lonesome donkey, and the gentle neighing of the love-sick colt. Such was the birth of the “Livery Stable Blues,” swears Dominic, and before Judge Carpenter in the Federal court today, eh asked an injunction against the envious, jealous, Alcide Nunez, clarinet player of the Original Dixie Jazz band. Alcide is charged with stealing the song, selling it to the Roger Graham Musical Publishing Company, and living proudly on the income and reputation it has won him.

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It matters not that the new title of the song is “Barnyard Blues.” According to Attorney Bryan Y. Craig, his client, Dominic, will speedily demonstrate to the court that the mellifluous harmonies could never have proceeded from a barnyard, but only from a livery stable. When this thirty-five witnesses have completed their testimony, and Judge Carpenter has heard from jazz experts, cabaret owners, and livery stable keepers, the composer of the world’s greatest jazz music will be identified. “The Livery Stable Blues,” along with the Shakespeare Bacon controversy, will have become history.

Blues and More Blues Go Blooey in Music Suit Jazz Band in Lobby and Jazz Testimony Get Nowhere. Chicago Daily Tribune, October 12, 1917, pg. 11

Prof. White, a black man, composed blues for Brown’s band, which played in a red café. Yesterday in Judge Carpenter’s court the first measure of the suit instituted by Leo Feist, a New York music publisher, against Roger Graham, a Chicago music publisher, brought to light the above rainbow set of circumstances. Feist publishes “The Barnyard Blues.” Graham publishes the “Livery Stable Blues.” Tom Brown, of Brown’s Jazz band, late of New Orleans, is the composer of “More Power Blues,” also published by Graham. All songs are copyrighted. All are much alike. Expert composers who admitted they couldn’t read a note testified to the similarity yesterday. Judge Carpenter, a bit of a musician himself, ordered a jazz band held in readiness to play all three pieces for the court. All day long the attorneys for both sides wrangled as to the points of similarity between the various blues. Time for adjournment came before the band had an opportunity to give its concert. But today syncopation will float along the corridors of the federal building. It appears the chief points at issue between the livery stable and the barnyard factions concern certain cries or calls, alleged to be musical reproductions of noises made by horses, oxen, fowl, and other bucolic species. Experts to Testify. In quest of the establishment of basic principles concerning blues in general and the disputed blues in particular, the following renowned authorities were called to testify: Ernie Erdman, composer of “When You Know You’re Not Forgotten by the Young Woman You Can’t Forget”; Johnnie Stein, trap drummer extraordinary, who admitted on the stand, under oath, that it was a gift; Prof. Beethoven [alias Slap] White, Negro jazz hound, composer of “Snakebite Blues” and author of over four hundred other

285 compositions; Tom Brown of Brown’s jazz band, composer of “More Power Blues;” Sam Hare, celebrated patron of fine arts and proprietor of the Schiller café. Prof. White gummed up the trial by stating that all blues were alike. A Bit of Testimony. “Are you acquainted with the Barnyard?” asked Attorney A.S. Hartman. “That’s irrelevant-and personal,” shouted Attorney Fred Lowenthal. “I object!” “He may answer,” said the judge. “I know the Barnyard, yes, suh!” said the professor. “I knows also the Lviery Stable.” “What is melody?” “Melody? Why- ha, ha!- melody’s jes’ plain melody.” “Well, what are blues?” “Blues are blues.” “Are there no differences between the various blues?” “Well, they might be, but on the other hand, all blues are the same. Take Alligator Blues and Ostrich Walk Blues. They’re different but they’re both blues, and all blues are blues.” The attorney sadly dismissed the witness. Miss May Hill, one of four May Hills of Chicago, testified that some bars were similar, some identical, and some different. Whereupon a bailiff came rushing in, told Judge Carpenter in a stage whisper that the Sox had been trimmed by the Giants, and court was adjourned until 10 today.

Jazz Band May Play in Court Question of “Who Done Writ de ‘Liv’y Stable Blues’” Drives Jurist to Drink Ice Water. Chicago American, October 12, 1917, tenth edition, sports section, pg. 1

Things are getting jazzier and jazzier up in Federal Judge Carpenter’s Court. Not only does the judge have to worry about the “Livery Stable Blues,” which Dominic La Rocca wants Roger Graham enjoyed from publishing, but he also had to go into the jazzness of “The Original Chicago Blues,” Morning, Noon and Night Blues” and the “More Power Blues” to-day. It was blue Friday. It may be that a jazz band will be called in to jest jazz all ‘round, so the jedge can jedge what is this here jazz music. Alcide P. Numez, who claims authorship of the mule-song in “The Livery Stable Blues.” took the stand to-day. PSHAW! NUTHIN’ TO IT. “Judge, they ain’t no originality about this livery stable piece except the animal calls in it,” said Numez, with the accent of one who has jazzed both in New Orleans and New

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York. “It was just hashed over from ‘The More Power Blues.’ Ray Lopez and me fixed it up.” “Do you read music?” said counsel. “No, suh, I’m a born musician. I am,” said Numez. “I never was learned a note in my life.” A letter was read purported to have been dictated by Numez to La Rocca in the days of the Damon and Pythias emotion, before it was kicked over by the livery stable thing. In it Numez said. “Your record is some swell (meaning phonograph record of the Blues in question), and I only regret that I am not in the band with you, which is all due to my Spanish temper.” The temper, it appears, was projected at the manager of the band. To the popping “I object” outbursts of the attorneys, the judge remained calm. “No, no, don’t strike anything out. Let’s get all of this, all,” said he with sarcasm. A jazz expert, Miss May Hill, was eventually called in to give the various Blues the double O. She did not pass on “The Twelfth Street Rag,”: which lay neglected on the table. JUDGE IS STAGGERED. But she did allow that there was a certain measure, oh, a haunting, lilting measure, which was discernible in “The Livery Stable Blues,” “The Barnyard Blues,” “The Original Chicago Blues,” “The Morning, Noon and Night Blues,” and the “More Power Blues.” Or was it the latter that she didn’t find it in? Anyway, Judge Carpenter fled to his chambers for ice water. “Well, could the average layman tell these melodies apart if the band played them and jazzed them up right?” asked the court. “No, you’d know that they were playing, but you wouldn’t know what; even I couldn’t tell,” said Miss Hill. “That’s what I thought jazz was like,” said the court.

Court Soft Pedals Jazz Discord Judge Carpenter Dismissed Contest Over “Livery Stable Blues”; Authorship Undecided. Chicago American, October 12, 1917, Final Edition, Sports Section, pg. 1 Reprinted October 13, 1917, Section 1 pg 1.

Judge Carpenter leaned back in his great big chair, with solemn mien looked over the audience, and without the hint of a jazz manner or a jazzed vocabulary, decided the merits of “The Livery Stable Blues” and its contemporary jazz syncopations. It was in Federal Court late today.

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“No living human being could decide who is responsible for the production of the ‘Livery Stable Blues’” quoth his honor. The weighty opinion was born of a musical education, and it is whispered a secret and surreptitious hearing of the jazz piece in question, and the ‘More Power Blues,’ and ‘The Original Chicago Blues,’ and all the other ‘Blues’ mentioned in the suit of Dominic La Rocca to enjoin Roger Graham from publishing ‘The Livery Stable Blues.’” JUDGE KNEW JAZZ For the judge asked no jazz band to play in court. Nor a phonograph. But he showed he knew all about the jazz stuff. Continued he: “The pleasurable effect it has on the listener is due to the animal call variations. I defy any living being to listen to the record on the phonograph and discover anything musical in it, although there is a wonderful rhythm, something which will carry you along, particularly if you are young and a dancer. “But,” the judge added after thought, “from a musical standpoint it is outclassed by even the modern French dissonance.” And some of the Jazzing witnesses, with an air of wisdom, nodded assent. BLOW TO BAND. But a sad blow it was to the members of the “Dixie Jazz Band,” in his opinion, concurred in by some who were present. He said: “They are merely strolling players, like the Hungarian players, with no musical education, but with a musical spirit and a quick ear.” And this he said of the plaintiff and defendant. “As far as I can see it the value of this musical composition lies in the value of the various animal calls which are introduced into the melody. Neither plaintiff nor defendant claims to have originated the animal calls, but only melody. The court is at a loss to believe everything that witnesses have here said under oath regarding this melody. Evidently the melody of ‘More Power Blues’ is an old negro melody. “Neither LaRocca nor Graham could claim to have originated this melody.” And as the defendant and plaintiff and their respective friends, all the jazz taken out of them at least temporarily, sorrowfully prepared to leave the place of justice, he said: “Dismissed for lack of equity.” Alcide P. Numez, who claims authorship of the mule-song in “The Livery Stable Blues,” took the stand earlier in the day to try to explain that jazz stuff. PSHAW! NUTHIN’ TO IT. “Judge, they ain’t no originality about this livery stable piece except the animal calls in it,” said Numez, with the accent of one who has jazzed both in New Orleans and New York. “It was just hashed over from ‘The More Power Blues.’ Ray Lopez and me fixed it up.” “Do you read music?” said counsel.

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“No, suh, I’m a born musician. I am,” said Numez. “I never was learned a note in my life.”

All Know Jazz, But No Music Experts Unfold Syncopated Mystery in court, but Shy at Melody Chicago Herald, Oct 12, 1917, pg. 3

Professor James Aristotle Slap White, critic and composer of many syncopated rags and jazzified “drags” took the witness stand yesterday before Federal Judge Carpenter to explain the mysteries connected with their composition. It came about this way: Alcide Numez and Dominic La Rocca played the clarinet and the cornet, respectively, in the “Original Dixie Land Jazz Band.” Dominic acted as impresario for a talking machine company which wanted some jazz music, and a year ago the records came, labeled “The Barnyard Blues.” A Few months ago, Alcide published the piece under the name “The Livery Stable Blues.” This started a legal battle as to the authorship. Thus James Aristotle Slap white was called upon for his expert jazz opinion. MUSIC AND “BLUES.” “I don’t know much about music.” Admitted the witness. “But I am willing to tell all I know about Blues.” “What are blues?” asked Judge Carpenter. “Just sounds. They have them in all the new rags: they are about the same in the ‘Ostrich Walk,’ the “Tiger Rag,’ ‘The Cake Walk Ball.; I have known about them since IW as a boy.” “Then every band has its own fit of blues?” asked Judge Carpenter. “Yes but the melody is different. They all have the rooster crow, the chicken cackle, the pony neigh, and such.” “What is melody?” The judge interrupted. “Why, melody is just melody- just melody.” “Well, we might as well have the music right away.” Judge Carpenter replied. “I see the phonographs are here and tomorrow is a holiday, so we can stand it.” But the lawyers were not ready and the demonstration had to wait. CALLS ‘EM INK SPOTS. Earl Conder, a drummer in the Dixieland musical organization, was asked to discriminate between two pieces of sheet music, but he shook his head. “If those Blues were played for me, I could criticize them,” he said. “But I can’t make out those ink spots. My music is all in my head.”

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La Rocca, who claims to be the author, told of his humble start on the ladder to musical fame. “I was an electrician in New Orleans, but business was dull. I used to practice in my room and after a few months I had a perfect melody,” he said. The piece was first produced in a Chicago café, he said. “I came to Chicago and played at the Schiller Café in Thirty-first street. One night when everybody was dancing who was having an awfully good time wouldn’t get off the floor, but hollered ‘More, more!’ I tooted a little of the ‘Livery Stable Blues’ and the place went wild. “We sat up all night to work out the parts for the different instruments.”

BLUES ARE BLUES, COURT DECREES, AND NO ONE WINS Solomonesque Decision on Jazz Issue Ends Suit. Chicago Daily Tribune, October 13, 1917, pg. 13

Federal Judge Carpenter yesterday backed up that eminent expert on indigo symphony Prof. Beethoven [Slap] White, who voiced the profound opinion that “blues are blues.” The case of Barnyard Blues” [Leo Feist, New York] versus “Livery Stable Blues” [Roger Graham, Chicago] was dismissed for want of equity. Both song numbers may remain on the market. Both composers will draw royalties. The decision will affect a large number of azure syncopations. Since the latter part of 1915, when jazz bands, which had for some months been flourishing in New Orleans, left their native habitat and began to flourish in the metropoli [sic] of the nation, numberless blues have been inflicted upon the public. Some of the Blues. The list includes: Hesitation Blues, Graveyard Blues, More Power Blues, Snakebite Blues, Chicago Blues, Dog Gone Blues, Ostrich Walk Blues, Darktown Blues, B’nai D’rith Blues, and diverse other blues. Since Prof. White stated, and the court has upheld, that “blues are blues,” all blues are put on an even footing. According to Prof. White, whose fateful testimony decided the mooted question, blues are a form of old plantation melody sung by southern negroes long before the saxophone and clarinet came into their own in the orchestral hybrids born in New Orleans, raised in Chicago, and educated by Sophie Tucker. For that reason it is a matter of record that most Blues are written by blacks. Prof. White himself has composed a not inconsiderable number. An Early Favorite. The first of the popular blues, “Hesitation Blues,” was written by a Chicago Negro. Its melancholy yet raggy plaint was as much a part of the repertoire of the cabaret as was the famous “Mother.” IT ran. Oh tell me, honey

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Why must I wait? Can I get you now, Or must I hesitate.” The blues market began to drag, and the minstrelsy of the jazz school began to hunt for novelties. Then were born twins- The Livery Stable and Barnyard Blues, so much alike that a musical Solomon had to throw them out of court so that neither should die. In rendering his decision, which will be recovered by blues composers with acclaim and éclat, Judge Carpenter said: “Blues are Blues!”

Judge Dismisses Case of ‘Blues’ That “Livery Stable” Jazz Belongs to Anyone, Declares Jurist Chicago Herald, October 13, 1917 pg. 6

A blue mist rose from the courtroom floor and Federal Judge Carpenter was seen walking back and forth behind his bench. In front of him stood two intrepid composers of jazz band “drags”- Alcide Numez and Dominic La Rocca- breathlessly waiting to hear which should have the credit for composing “The Livery Stable Blues.” The blue eyes of Miss Jessie Allen, the chief witness for La Rocca, were wide open and viewing in their blueness with the navy blue of her suit. Out of the blue stillness Judge Carpenter spoke: “There isn’t any law on this subject of blues,” he began. “I am here to judge the facts. This is a fight between two musical publishers as to who wrote the ‘Livery Stable Blues.’ FINDS NO HARMONY. “There is no harmony to this so called composition. Its value is in the rooster crow, the cow moo, the chicken cackle and the pony neigh. The question is, Who originated the melody? I am included to take the view of Professor James Aristotle ‘Slap’ White that they are old negro melodies which have been in existence for years and no3 one has a right to claim them as his own.” La Rocca, who saw his case slipping, seemed to be having a fit of blues. Then the judge showed himself to be both a critic of classical music as well as of blues. I have looked over the composition,” he said, “and I defy any man to discover any music in the ‘Blues,’ although there is a wonderful rhythm, you want to dance if you are young enough. The dissonance in the ‘Livery Stable Blues’ even exceeds the work of some of the modern French composers. I thing the ‘blues’ belong to anyone and the bill is dismissed for want of equity.” BLUES GO “BLOOEY”

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Alcide Numez, the clarinetist who had been temporarily restrained from distributing his published copies of the composition, grabbed both hands of his attorney, Fred Lowenthal. “I’ve been having the blues all day because it is Friday,” he exclaimed, “but we certainly blew them out of court, didn’t we?” Previous to the decision musical experts of all kinds and assortments had told what they knew of jazz band music, but no amount of coaxing from the lawyers could get Roger Lewis to claim he had any hand in the composition.

“Blues” Song Case Lacks Equity New York Clipper, October 17, 1917 [Dominic ‘Nick’ LaRocca Collection, William Ransom Hogan Archive, Tulane University, New Orleans, Louisiana]

Judge Carpenter in the Federal Court has handed down a decision in the case of the disputed authorship of “The Barnyard Blues,” published by Leo Feist and “The Livery Stable Blues,” issued by Roger Graham of Chicago. After a two days’ session, the court decided that the case lacked equity and both numbers could be published and marketed by the respective publishers and both authors draw royalties. The decision appears in effect to place all the “blues” songs upon an equal footing and an appeal to the higher courts will doubtless be made to clear up the situation.

“Blues are Blues, They Are” Say Expert in “Blues” Case Variety, October 19, 1917

Chicago, Oct. 17. Roger Graham, Chicago music publisher, and Leo Feist, New York ditto, went to the judicial mat here last week. Graham won. The decision and the case itself, while of considerable importance in the profession, occasioned a lot of horseplay during the proceedings and was made much of by the daily papers as a comic feature story. Feist attempted to get a permanent injunction to restrain Graham from publishing Livery Stable Blues by Ray Lopez and Alcide Nunez. The temporary injunction was issued against Graham. The supplementary suit, fought out in Judge Carpenter’s courtroom in the Federal building, brought large crowds. The testimony of a number of “experts,” who admitted on the stand they could not read notes, was utilized. After a full hearing of the facts the

292 bill of complaint was dismissed for want of equity and the injunction automatically dismissed. Unless Leo Feist, Inc., remove from the front cover of their Barnyard Blues the reference to Graham’s number, which states that the Feist blues are identical with the “Livery Stable Blues” played on phonographs under the latter title, Graham will institute a counter action to compel Feist to do this. Aside from the legal victory the case is in the nature of a moral triumph for Graham’s number over the Feist Blues, Livery Stable Blues has been the better seller of the two. This was demonstrated, when, after the case had been dismissed, Harry Munns, Graham’s lawyer, was approached by Feist’s attorney with a proposition to publish “Livery Stable Blues.” A most colorful trial it was from the point of view of the lay audience. Among the experts called was one Professor “Slaps” White. Professor White, a black man, testified, in backing up his claim as an expert, that he had written blues for Brown’s band, which played in a red café. It was Professor White who established the origin of the “blues” melody. Judge Carpenter, a musician himself went into the spirit of the trial, and interpolated dry rejoinders and permitted the various witnesses to tell their stories in their own way. The most interesting testimony was the story of how the various cries and calls, imitative of various fowls and animals, came to be used in the number. It appeared that at the Schiller café, where the Dixieland band was playing (Ed. The ODJB), a young woman who had imbibed generously began to cut indiscreet capers on the dance floor. One of the members of the band ripped out the shrill neigh of a horse on his clarinet. It encouraged the young woman, and the cornet came through with the call of a rooster. All the instruments followed with various animal cries. It had such an effect on the people in the café that Nunez suggested their use in the “blues” number. Professor White accomplished during his testimony what numberless others have failed to do. He defined “blues.” The answer came when White told the judge he was the author of several hundred compositions, including several “blues.” “Just what are blues?” Asked Judge Carpenter. “Blues are blues, that what blues are,” replied the professor. The answer was written into the records and will stand as the statement of an expert.

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Vaudeville Volleys- From Walter Kingsley The Genesis of Jazz, with Some Sidelights on ‘Blues’ and ‘Shimmying’-Colonial Has New Policy-Factors on Week’s Bills-How Gottlieb Closes The Show Dramatic Mirror, December 14, 1918, pg. 867

…A Definition of “Blues”

All this, however was derived from the New Orleans blacks and John Spriccio. Nunez sold the number to Roger Graham. LArocca, the cornet of the band, claimed it an the case went to court. Judge Carpenter asked Nunez to define “blues,” whereupon he made his famous reply: “Judge, blues is blues- a little off key but harmony against the rules.” The court held that “blues” could not be copyrighted in as much as they could not be described and orchestrated. Kelly says that ragtime is not exact syncopation and blues are not exact harmony. Jazz is mighty interesting. It stems from the African jungle via the slave ships and the plantations. Old John Spriccio of New Orleans knows all the music of the darkies, and some enterprising writer of popular melodies ought to visit him. He is responsible for Jazz primarily, and after him comes Bert Kelly…

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