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?

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Q&A Series (3): “I Went Down To St. James Infirmary,” by Robert W. Harwood

[And now, Part 3 of this ongoing interview with Robert W. Harwood about his book I Went Down To St. James Infirmary. Part 1 is here, and Part 2 is here.]

Q: You make it pretty clear in the book that what we now know as “St. James Infirmary” was in reasonably wide circulation in the repertoire of plenty of musicians by the 1920s.

One of the things I’ve always been interested in is how Armstrong first heard it — and I am led to believe from what you write that he may not have heard it first in New Orleans, but rather that Don Redman brought it to his attention in Chicago (after having heard it in Detroit, pretty shortly  before the Armstrong session that included the tune).

Am I getting that right, is that what you figure is the most likely scenario for how the song got to Armstrong?

A: In the book, I detail how Don Redman got hold of the song. Redman was a multi-instrumentalist, whose specialty was the clarinet and the saxophone. His real strength was as an arranger, though. It’s fair to say that Redman’s innovative arrangements revolutionized band music in the 1920s.

In December of 1928 Louis Armstrong and his Hot Five were scheduled to make some recordings in Chicago. They wound up recording about ten songs over a one-week period including “Basin Street Blues,” “Save It, Pretty Mama,” Tight Like This (Tight  Like That),” and “St. James Infirmary.” Redman traveled from Detroit for the sessions, where he acted as arranger for some of these songs (on which he also played clarinet, alto saxophone, and contributed some background vocals).

In I Went Down to St. James Infirmary I discuss how Redman was introduced to “St. James Infirmary” — or, at least, to an arrangement of it. I don’t think we can assume that Louis Armstrong had never heard the song before, though. I’m sure he knew it very well.

But it takes time to create an effective arrangement for seven musicians. And, as you can easily hear, this arrangement is quite complex. So, what Redman brought to Chicago was a version of the song worth recording. The song was making the rounds of the dance halls in the North, and Redman liked what he heard one December night in Detroit’s Graystone Ballroom. He took that arrangement with him to Chicago, although he no doubt altered it considerably. So he was the man responsible for Armstrong recording that song on December 12th.

You note in the book that the original OKeh release credits Redman — it actually came out before Irving Mills got his copyright (as Joe Primrose) for the tune. As you write, Mills got in touch and the “mistake” was changed, Primrose got credit, and Mills Music got royalties. Another instance of prodding you into pure speculation, but any thoughts about why OKeh/Armstrong/Redman wouldn’t say, “No way, Mills, you didn’t write this and you’re not getting a dime!”

I’m certain, Rob, that Irving Mills did not write to Don Redman; I doubt if he ever talked to him. Irving Mills contacted Thomas G. Rockwell about this matter. Rockwell was the Director of Recording for OKeh records. He was also a friend of Mills. In fact, they were business partners. (Mills-Rockwell Inc. had offices at 779 Seventh Avenue, New York.) All Don Redman would have known was that the composer credit went to a fellow called Joe Primrose. As far as Redman was aware, the Mills Music Company had found, in Joe Primrose, the original composer of the song. Redman knew the song existed before he ever made the arrangement, so he really had nothing to base an argument on.

Right. I didn’t mean to imply that Mills would have written to Redman. I guess I was assuming, though, that Redman might have stood to lose out on… something … if the credit changed. Seems like he could have at least argued that he deserved more credit for this version than “Joe Primrose.”

But maybe not. I remember that you make the point that Redman didn’t file any sort of copyright, and I guess we have no way of knowing exactly what value (monetary or otherwise) he would have given his own contribution to the song, via that arrangement. (And maybe he wasn’t even aware his name was on the first pressing.)

All of which gets at one of your big themes in the book — the way traditional song-making and the newer world of song-commodifying (which obviously Mills had a handle on, to say the least) came together in “SJI.”

Hmm. I see what you mean, Rob. I remember trying to find out what happened to Phil Baxter’s complaint against Irving Mills. As you know, Baxter and Carl Moore published the “Gambler’s Blues” that Fess Williams recorded. In a 1930 newspaper interview Baxter (who published the song with Carl Moore in, if I remember, 1925) claimed he had initiated action against “a New York publisher.” That publisher, Baxter claimed, had stolen the composition credit for the song, now known as “St. James Infirmary.” I spent months trying to track some evidence of that legal action, but could find nothing. This is the sort of research that, of course, never made it into the book. The legal action was probably initiated in Kansas City, where Baxter was living at the time. The court houses I contacted there as well as in New York City had no record of this. But certainly Phil Baxter knew as well as Don Redman and Irving Mills that he wasn’t the original writer of the song.

In those days, like today, one could apply for one of two types of copyright. An original composition was completely protected under copyright law. The other type was for a new arrangement of a public domain song. In that case only the new arrangement was protected — anybody could perform and/or modify the original song without infringing on the composer’s rights, but would have to pay if they used his new arrangement.

For instance, Johnny Cash copyrighted the old (public domain) blues song “Delia’s Gone.” Personally, I don’t like his version. I find it the most mean-spirited of all the Delias I’ve heard. But that’s okay, because the Cash estate only owns the rights to his arrangement of the song, and to his lyrical modifications. The original song is available to anybody. As another example, the Kingston Trio lost a lot of money by not checking their facts when they recorded “Tom Dooley.” The song had been around for a long time; it was actually based on an 1866 murder and likely made its first appearance in that decade. The Kingston Trio thought they were recording a traditional song, but they inadvertently recorded a version that Alan Lomax had published as “Tom Dula” in his book Folk Songs of North America. This gave writing credit (as a new arrangement of the traditional song) to both Alan and John Lomax and to the fellow from whom they had collected it, Frank Warner. By the time they settled the suit, the song had sold millions of copies, and it continues to generate royalties for Warner and the Lomax family. So there can be gold in reconfigured songs. But it’s not very likely.

But back to SJI. If Redman and Baxter had copyrighted “St. James Infirmary” it would have been for their new arrangement. And, really, they probably didn’t think they had much to gain from that, because anybody else could record or sell sheet music for other versions without paying them a penny. But then an unheard of writer, Joe Primrose, came out of left field and copyrighted “St. James Infirmary” as his own composition. Wow. Suddenly all variations of the song owed payment to Primrose (well, to Irving Mills).

So, what if Redman or Baxter had carried their argument to the courts? It would have been expensive. And what would they have gained it they had won? A moral victory, certainly, for “SJI” would have had to return to the public domain. However, I cannot imagine that they could have dispossessed Joe Primrose of his claim to the song without proving that neither he nor anyone else wrote it. So, all they would have been protecting, really, was their right to broadcast their own interpretations. Legal action would have been a money-losing proposition.

A likely scenario with Phil Baxter is that he threatened legal action, Mills showed he would not back down, and Baxter calculated that the cost of continuing a legal battle would be much greater than the profits he might realize if he won. Possibly Redman briefly considered a response, but he was a busy man, lots of irons in the fire, lots of his own songs in the marketplace, and decided it was not worth it.

I doubt any of them thought the song would outlast the decade.

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Great moments in technology

Of all the YouTube “SJI” ephemera, this one cracked me up the most. I was of course interested to see the title: “St. James Infirmary By Duke Ellington and his Orchestra 1930.” Wow! There’s footage of that!

I clicked immediately.

What the clip turned out to be was a video of a record playing. That’s it. A hand puts the needle on the 78, and then it’s a four-minute shot of the disc spinning, moving in for a bit of a closeup of the twirling label at one point. The conclusion is the needle bumping against the label in a brief hum of distortion, at which point the hand turns the record player (a “portable ‘His Master’s Voice’ gramophone from 1938 (Serie 102c, with green leather case,” according to the YouTube notes) off.

Ridiculous. And, intentionally or not, hilarious.

Anyway, regarding this actual version: The YouTube notes say it’s from January 1930, with a vocal by Sunny Smith. Sunny Smith was a pseudonym of Irving Mills, who of course had claimed credit for the song a year or two earlier, under a different name, Joe Primrose. I have a version of Ellington’s band under the name Harlem Hot Chocolates, with Sunny Smith vocals, doing the song in 1930, but it’s not this version. So, I’m a little confused about that, but perhaps I’ll sort it out later.

Update: Mr. Robert Harwood bails me out in the comments section regarding my confusion. He recognized the version being played here as King Oliver’s, with vocals by Frank Marvin, using the pseudonym Sonny Woods. Check the comment for more. Thanks as always Mr. Harwood!

“St. James Infirmary,” King Oliver

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