Q&A Series (5): “I Went Down To St. James Infirmary,” by Robert W. Harwood

[And now, Part 5 of this ongoing interview with Robert W. Harwood about his book I Went Down To St. James Infirmary. Part 1 is here,  Part 2 is here, Part 3 is here, and Part 4 is here. This may or may not be the last installment in this series -- it's all I have planned, but I reserve the right to extend if new questions come up. As a reminder: It's a fascinating book, and I recommend it  highly.]

Q: I’d always wondered how Primrose/Mills managed to claim credit for a song that, among other things, had been included in Sandburg’s American Songbag as a “traditional” number, without some kind of legal challenge. Turns out there was a legal squabble, as you detail in the book, but it wasn’t someone challenging Mills — it was Mills challenging someone else!

I don’t want to give away what’s in the book, but I guess I’m safe in revealing that Mills prevailed and that’s how he held onto the copyright. This is some of my very favorite material in the book, and I have no idea how you managed to track it down, but the details of the court battle are fascinating, particularly getting a look at the legal logic.

Ah, yes, that court case produced some interesting information. I have about 640 pages of examination, cross-examination, testimony, legal pleas and summations, most of which come from two court cases. There was a trial in 1931 and appeals that were heard in 1931 and 1932. Mills fired off the initial complaint on March 13th, 1930. So this is the thing to keep in mind: Mills was the plaintiff, not the defendant. It’s a very odd situation, I think, and I have often wondered why the defendant — music publishers Denton and Haskins — did not initiate a copyright challenge.

Mills launched his complaint in New York State court. It had nothing to do with copyright, though. I mean, even if this court agreed that “St. James Infirmary” was been incorrectly copyrighted, it would have been legally meaningless. Copyright was a Federal concern and had to be addressed in Federal court. As it turned out, Mills did have to admit that he was not the original composer of “SJI.” But it didn’t matter, for nobody took that issue further. Legal challenges are expensive, and I suppose that’s the main reason Mills was able to hang onto the copyright for so long.

What he was concerned about in this trial was the name “St. James Infirmary.” In early 1930 there appeared on the streets of New York copies of inexpensive sheet music carrying the title “St. James Infirmary or The Gambler’s Blues also known as St. Joe’s Infirmary.” Irving Mills saw those sheets and said something like, “Whoa! Hold on there, we can’t allow that. Why, once these characters find they can sell ‘St. James Infirmary’ there’ll be no stopping the rest of the world.” And he issued a legal complaint. Cease and desist. Immediately.

It seems that Denton and Haskins did not immediately cease and desist. They continued to sell the material (undercutting Mills’ price, yet) and ended up in court. Mills’ argument was that, sure, this song is known under a variety of names, but it is only popular as “St. James Infirmary.” If Mills could talk to us today he might say, “I created that title, I paid lots of money to advertise the song, to make it popular, and these characters are taking advantage of me, they are making money off my hard work.”

What Mills was arguing was that he had a proprietary interest in the title. He wanted Denton and Haskins to remove the words “St. James Infirmary” from the covers of the sheet music. It’s as if he was saying, “Let them sell it under the title ‘Gambler’s Blues’ and see how many copies it sells. Very few, I’ll bet.”

Cover of 1931 Legal Brief, courtesy Robert W. Harwood

Here are some interesting numbers from the first few pages of the documents I have:

On March 11th 1931 the Mills group stated that, to date, they had sold 37,000 copies of the sheet music with a retail price of between 25 and 30 cents a copy — the price to the dealer being 21 cents, and to the jobber 18 cents. (I believe a “jobber” was one who sold the music in the streets, or bought a large number of copies for distribution to newsstands and the like.) In addition to this piano/vocal score they had sold, since March 1929, 10,000 complete orchestral scores for which they received 30 cents a copy from dealers, 25 cents from jobbers. To that date Mills had licensed 16 companies in the United States, as well as 4 in Canada, to manufacture phonograph records and piano rolls. About 200,000 records had been sold so far.

Q: And that’s just from the first few pages. Is the rest of the transcript as interesting? strong>I’ve had to wade through court docs in the course of my day job in the past, and it’s not always that much fun.

There is all sorts of information to be found in these court documents, Rob. Although probably less than one might expect to find in 640 pages. Lawyers wrangle and complain and endlessly repeat themselves. For instance, the first witness was George Friedman, general manager for Gotham Music Service, Inc. (Gotham was the publishing arm of Mills Music.) Nathan Burkan was Mills’ lawyer, Abner Greenberg was the lawyer for the defendants.

Burkan: What does that paper represent that you have in your hand?
Friedman: This is the original manuscript for “St. James Infirmary.”
Greenberg: I move to strike it out, the witness is not qualified to tell us about it. He is not the author or the writer of the piece.
The Court: Motion denied.
Greenberg: Exception.
The Court: A publisher for ten years.
Greenberg: He does not say where he got it from.
The Court: I deny your motion.
Greenberg: And I take an exception.
Burkan: You were about to tell us about this paper?
Friedman: This is an original manuscript of “St. James Infirmary.”

So it could sometimes take quite a while to get to the point.

Q: Did you find the material surprising — in the sense that it sounds like there were a lot of accounts that “SJI” (in various forms) had been in pretty wide circulation, but Mills prevailed anyway?

It took me an awfully long time to track down these documents. Years. Through either luck or persistence I had the great fortune to contact a principal law librarian at the New York appellate court. He was very helpful, and must have taken a lot of trouble to find the information I was seeking. When it finally arrived I was not expecting much, to tell you the truth. But pretty soon I was sitting down with this mass of papers around me and calling to my wife, “Pam, listen to this . . .” or, “Pam, I had no idea! Look at this; this is incredible!” It was pretty exciting — and exactly because there were so many pages, the excitement lasted for several days.

It was precisely because Mills was arguing a proprietary interest in the song’s title that the legal arguments became so intriguing. He was saying that “St. James Infirmary” was a trademark of sorts. “You can make running shoes,” he might have said, “but don’t call them Converse or Nike. I own those names.” Denton and Haskins, therefore, argued that “St. James Infirmary” could not have been a proprietary title, because it had been around for a long time. If it had been around for a long time, Irving Mills could not have created it and therefore had no business preventing them from using it. But they had to convince the court of that.

That was easier said than done. Denton and Haskins could produce no material evidence, no old music sheets with the title “St. James Infirmary” printed above the score. They called seven witnesses, most of them musicians, who were prepared to declare that they heard or played the song years before, and that they knew it as “St. James Infirmary” back then, before it became a hit record.

Mills lawyers’ called three witnesses, including an expert who assured the court that the “Those Gamblers’ Blues” in Carl Sandburg’s The American Songbag (and the “Gambler’s Blues” recorded by Fess Williams) was a completely different song than “St. James Infirmary.” One witness recalled hearing Phil Baxter and Carl Moore perform the song in Little Rock, Arkansas. Another performed it in traveling minstrel shows. Another recalled how his father taught it to him, and how he made the first written arrangement and was responsible for introducing the song in the North (and introducing it to Don Redman). That last musician could have made a difference, but his testimony consisted of written letters (defendant’s Exhibit J); he never appeared in court and never brought his written arrangement.

Q: Exhibit J? It sounds like there were quite a few exhibits.

Let me count them. Mills entered 18 exhibits, Denton and Haskins entered 13. And what I wouldn’t give to get my hands on some of them! There’s an edition of “Those Gambler’s Blues” arranged by Harold Potter and published by Mills Music. This was after “St. James Infirmary” had been released, and was an exact duplicate of the Carl Sandburg version. According to the testimony — which is a little confusing — it sounds like Mills Music printed a copyright notice on the sheet music for “Those Gambler’s Blues,” although they did not own the copyright. Some odd things were going on. And then there’s a copy of the song “Gambler’s Blues” with words by Carl Moore and music by Phil Baxter. I have searched high and low, with no success at all, for this sheet music, and here it is, as an exhibit in a 1931 court case. I tried to find out if the exhibit was still in the vaults, or if it had been disposed of. I still don’t know, but think it’s gone.

1929 "SJI" sheet music published by Mills. Click for more info.

You know, plowing through all that testimony, Rob, caused me to reflect on a number of things. One of them being the short arm of history. I remember your remark on this in Letters From New Orleans: “It’s startling to look back less than 100 years in search of answers, only to confront the alien idea of the unknowable.” I mean, even back then — 1931 — “St. James Infirmary” was difficult to track. I had several choices open to me when I started writing the book. Choices of writing style. I was initially leaning towards using a more personal or dramatic approach, but the nature of the material would not let me. I wanted, you see, to be as historically factual as I possibly could. There is a trend in contemporary popular music writing towards the declamatory, the dramatic. The verbose. But whether you’re writing about old Elvis Presley songs or old jazz standards, you can’t do that and remain historically accurate. The arm of history is not long enough — we do not have enough detail of things past, and so if we wish to dramatize them we have to make things up.

That sort of style would not do justice to a subject like “SJI.” So while the book contains many facts, the “interesting” parts, I think, can be found in the numerous biographical details that pepper the book, and in some of the testimony from this trial. Lawyers might tend to mercilessly shred sentences, but this can stimulate the witnesses to give more detail. And so we hear that so-and-so sang “SJI” as a request while standing at the tables of card-sharks, con men, gamblers and pimps in Texas roadhouses, or that when there was a lapse in the dancing the band leader would have them play “the Rocks — which is the same thing you call the Blues now;” you didn’t need the sheet music in order to play the Rocks and SJI was prime Rocks material.

It still is.