Hart v. Graham

Comment by Katherine Maskell Leo*

Members of The Original Dixieland Jazz Band (ODJB) are among some of the most iconic figures in early jazz. Their sensational Victor 18255 disc, frequently considered by historians to be one of the first commercial jazz recordings, launched a monumental career and did much to popularize jazz for national, and international, audiences. Soon after the spring 1917 release of this 78-rpm record, both sides of the recording became the center of copyright controversies. While the matter involving the A-Side, “Dixieland Jass Band One-Step,” settled out of court with a decree that the title be revised to “Dixie Jass Band One-Step Introducing That Teasin’ Rag,” the case involving the B-Side, “Livery Stable Blues,” resulted in a more high-profile lawsuit.

Although the parties in this case included Max Hart, the ODJB’s manager, and Roger Graham, a prominent Chicago-based sheet music publisher, the litigation hinged on competing authorship claims between notorious ODJB-frontman Dominic ‘Nick’ LaRocca and two ex-bandmates, Alcide Nunez and Ray Lopez. The dispute appears to have resulted from a title mix-up during the recording and copyright registration processes for Victor 18255. Although the B-Side song was commonly referred to as “Livery Stable Blues,” Victor executives supposedly requested a title change to “Barnyard Blues,” which was believed to be less offensive to general audiences. Hart thus filed for copyright under the new title, but first pressings of the record reflected the original title. The discrepancy undoubtedly motivated Nunez and Lopez to publish, and copyright, sheet music, titled “Livery Stable Blues,” pursuant to the song on record with Roger Graham. Members of the ODJB published their own competing sheet music for the same song, bearing the copyrighted title, “Barnyard Blues,” with the Leo Feist Company later that year, and then filed for copyright infringement.

While the Plaintiffs claimed that the song was LaRocca’s own composition, the Defendants argued that the song derived from a pre-existing one, titled “More Power Blues,” to which Lopez also claimed authorship. The Defendants outlined minute differences between the two songs, characterizing revisions for “Livery Stable Blues” as the result of Nunez’s creativity. Bandleader Tom Brown, who was called as a trial witness, complicated matters by also claiming authorship of “More Power Blues.”

After a trial that one journalist described as sending the presiding Judge to his chambers for ice water, the case ultimately was dismissed. Based at least in part on testimony from blues pianist James “Slap” White, who allegedly explained for the court that “blues is blues,” Judge Carpenter cast the song at issue as an unoriginal realization of commonly-shared blues formulas. Therefore, as one headline read, “Nobody Wrote Those Livery Stable Blues.” Because of the dismissal, neither party could claim exclusive control and the decision was not published in the Federal Reporter, which appears to have significantly limited the impact of the case on copyright jurisprudence despite its commentary on early blues and jazz.

*Katherine Maskell, “Who Wrote Those ‘Livery Stable Blues’?” (MA Thesis, 2012): PDF

Opinion by Judge George A. Carpenter

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 from 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.

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.

***