More Chicago Music Enters the Public Domain
January 2020
After well nigh a century, it has finally arrived, George Gershwin’s Rhapsody in Blue, as of this January, is now in the public domain. It was the number one hit of 1924 and has become an American classic. For the Gershwin estate, it was a big revenue stream. United Airlines was in recent times paying three hundred thousand dollars a year to use the song in their television advertisements. It is no wonder the Gershwin estate worked so hard to get copyrights extended. But the rational for copyrights is, supposedly, to abet creativity. George Gershwin has been dead since 1937 so someone else has been enjoying the fruits of his labor for a long long time without society benefiting from new creativity. Corporate entities like the Disney Company and the Gershwin Estate have been able to pressure the Congress to extend copyright protection from 57 years to nearly a century, far longer than is reasonable.
While Gershwin’s Rhapsody in Blue was the monster hit of 1924, not far behind it on the charts was the Isham Jones and Gus Kahn song: It Had to Be You, a chestnut thereafter for lounge singers everywhere. In fact, It Had to Be You was just one of many hit songs that came out of Chicago in 1924. Chicago was at its zenith as a production center of American music; it was the epicenter of the Big Band Era. Isham Jones was a composer and leader of his own band while Gus Kahn was often commissioned by the Shubert Organization for new music for their annual Passing Shows. Jones and Kahn had several big hits in 1924 besides It Had to Be You, including Spain, which was a top ten hit on most charts, Some Other Day, Some Other You , The One I Love Belongs to Someone Else and I’ll See You In My Dreams. Now all in the public domain.
Gus Kahn collaborated with other Chicago band leader/composers and produced more hit songs during 1924 including Oh Mabel and Charlie My Boy both with Ted Fio Rito and Nobody’s Sweetheart with Elmer Schoebel who was a Chicago-based musician who had come from New Orleans. Gus Kahn was undoubtedly the top songsmith of 1924 in America. One Kahn song from 1924, Santa Claus Blues, should be remembered at least as a historical footnote. Kahn collaborated with Charlie Straight a Chicago composer who worked as a band leader and as a composer for a Chicago piano roll manufacturer, but the sheet music was published by Clarence Williams, an African American who had owned a music store and publishing company in the Bronzeville neighborhood. Chicago’s music industry was far more integrated in 1924 than the city as a whole.
But it wasn’t just band music that was coming out of Chicago in 1924. A piano songplugger working in a Loop department store for the Ted Browne publishing company would have a huge national hit song in the country or folk genre and make history: Wendell Hall. Commercial radio was not yet four years old and still in its crystal set infancy. The phonograph companies and ASCAP (American Society of Composers and Publishers) would not allow radio stations to broadcast their copyright protected songs. They saw radio as a threat while Hall saw it as an opportunity. Hall barnstormed the country in the summer of 1924 playing his song It Ain’t Gonna Rain No Mo’. As more and more people heard the song on the radio, it became a hit in sheet music sales and then in record sales. It was the first song to become a national hit due to radio play.
Wendell Hall used his notoriety from his radio barnstorming to publish music in many musical genres. Perhaps he is not remembered as a pioneer of any musical genre because he played in so many. In 1924 he wrote 31st Street Blues and Chicago Blues which was recorded by Clara Smith an African-American blues singer (no relation to the better remembered Mamie or Bessie) then living in New York and it became her best selling record. He also recorded a whistling song, Whistling the Blues Away, that became popular and can be heard on the Library of Congress’s National Jukebox.
The year 1924 was also a big year for the little Chicago music publishing company: Melrose Brothers. They published several songs that became best sellers in sheet music and that have been recorded by many major musical artists. Melrose hits of 1924 now in the public domain include: King Porter Stomp by Jelly Roll Morton and Copenhagen by Charlie Davis and Walter Melrose. Melrose’s partner Marty Bloom had a hit with a novelty song, Does the Spearmint Lose Its Favor on the Bedpost Overnight which became a hit again in the late 1950’s. Melrose published Jimtown Blues by a young Chicago composer and entertainer, Fred Rose. A decade later Rose moved to Nashville, Tennessee and started his own musical publishing company with Roy Acuff and helped establish Nashville as the country music capital of America.
Chicago music companies in race records also had a banner year in 1924. Paramount Records of Wisconsin had a recording studio on Wabash Avenue in Chicago where they recorded two of Ma Rainey’s biggest hits: See, See Rider and Countin’ the Blues. See, See Rider has been re-recorded by numerous Rock musicians and now they don’t have to pay a royalty to someone who had nothing to do with the creation of the song. 1924 was also the year that Chicago musician, Jimmy Blythe, issued his Chicago Stomp which most musical historians consider the first boogie woogie song.
Music of Jazz Age Chicago Enters the Public Domain
January 2019
With little fanfare and no celebration, on January lst of this year (2019), some of America’s most historic music, much of it originated from Chicago, entered the public domain. It is certainly long overdue, the music is nearing it’s centennial anniversary and was still under copyright protection; a testament to the lobbying power of the Disney Company. Twenty years ago, copyrights from the 1920’s under existing copyright law were due to expire which meant anyone would soon be able to produce their own Mickey Mouse stories and cartoons. It was only a small revenue stream for Disney but one they were unwilling to share so they exercised their corporate influence over the Congress and soon the Sonny Bono Copyright Extension Act of 1998 was passed that extended copyrights for an additional twenty years. Mickey Mouse was saved. But time moves quickly and twenty years has passed although Mickey is still safe for a couple of more years.
Copyrights were meant to reward creativity but when copyrights go on too long, it can be counterproductive. If the copyright to the Wizard of Oz had not expired, there would have been no Wiz or Wicked, both immensely popular musical plays with great commercial value. If Arthur Conan Doyle’s great grandchildren could still derive income from Sherlock Holmes, there would have been far less Sherlock Holmes’ books, movies and television programs employing more artists. While some music such as Rhapsody in Blue has remained popular since 1924 with a copyright holder that vigorously protects it’s rights, most music from this era, even erstwhile hit songs, seem to be orphaned and forgotten with uncertain copyrights. However, if anyone uses the song, play, book, etc and starts to garner some commercial success, the risk is great that someone will make a copyright claim and the profits will go to lawyers which is why interest in these properties has been suppressed.
Perhaps there is no better example of this than the song that is deemed the theme of the Roaring Twenties: the Charleston. Whenever the era is recalled, the song is played; but the play from which the song originated, Runnin’ Wild, has disappeared. Until this year, they were both under copyright protection although it was not clear who owned Runnin’ Wild. It originally had been a successful Broadway musical and the second Broadway musical of the decade to have been an all Black production. The first such musical, Shuffle Along, which preceded Runnin’ Wild by three years and whose copyrights had long since expired, has been successfully revived on Broadway. Copyrights were meant to allow the creator to benefit from his creations but with copyrights that last for well nigh a century, it isn’t the creator who benefits, they are pushing daisies, someone else benefits while society suffers both a loss of new creations from old sources and the new revenue streams it would generate.
So finally, books, movies, songs and art created in 1923 are free to be used by anyone without fear of lawsuits. A quick perusal of the song list from 1923 bespeaks Chicago’s then position as a center of the American music industry. Dez Confrey’s novelty song Dizzy Fingers was a big hit in 1923 and Confrey was in Chicago as a staff composer at a piano roll manufacturer. The Big Band Era was starting and Chicago was the birthplace of the era. Isham Jones, one of the greatest of the era had several hit songs in 1923 usually in collaboration with Gus Kahn. Jones and Kahn songs from 1923 include Swingin’ Down the Lane and Broken Hearted Melody but Jones also had a hit with Indiana Moon with a different songwriter while Kahn hit half a dozen more hit songs with different composers including No, No, Nora with another great Chicago big band Ted Fio Rito’s. No one had more hit songs in 1923 than Chicago songsmith Gus Kahn. He wrote several songs for the Shubert Passing Show of 1923 that were immensely popular show tunes including Carolina in the Morning and Beside a Babbling Brook.
The music emanating from Chicago was more than Broadway show tunes or Big Band dance music, Wendell Hall, an erstwhile Chicago song plugger for a sheet music publisher, was one of the first to recognize the power of radio. He barnstormed the country playing small radio stations until he had turned It Ain’t Gonna Rain No Mo’, a folk country song, into the number one song in the country by sheet music sales. It was also a banner year for Walter Melrose’s sheet music publishing country. It would be remembered as the Jazz Age and his company was the origin with numerous Jazz hit songs including from 1923: Wolverine Blues, the Tin Roof Blues, Grandpa’s Spells, and the Kansas City Stomp.
Happy Birthday Copyright
October, 2015
On September 22nd of this year (2015), United States District Judge George H. King ruled the copyright to Happy Birthday was invalid and, therefore, the song was in the public domain. For the copyright holder, Warner/Chappell, the decision means the end to a revenue stream believed to be two million dollars annually. For restaurants and other commercial venues where the song was performed as part of a birthday celebration, the decision means, they are no longer liable for copyright infringement. For Chicago, it was a reminder that Chicago was once a major national music center.
The original copyright holder was the Chicago-based Clayton Summy music publisher. The same company that issued a new arrangement of an old English song called Amazing Grace that later became the theme song of the civil rights movement. Happy Birthday is described as the most popular, or at least the best known, song in the world. Chicago’s music companies filled the American songbook with many of the country’s most popular music while making Chicago second only to New York as a national center in the music industry. Why Chicago ceased to be a business center of music was documented in Chicago’s Music Industry.
That a copyright dispute received worldwide interest probably redounds to the universal popularity of the song but the decision raises several business issues.
Consider the growing disparity between patent holders and copyright holders. An inventor under current law has exclusive use to his patent for from fourteen to twenty years depending upon what type of patent while a copyright can remain in force for as long as the holder exists plus seventy years. Thus, if you want to avail someone’s patent, you need wait but two decades but if you hope to profit from someone’s copyright, you may have to live for another two centuries.
How is it that authors are so much more revered by our society than inventors. Since most patents and copyrights are held by corporations, it is likely a reflection of the opprobrium earned by such patent holders as pharmaceutical companies that charge a $1000 for a pill or patent trolls who use the civil justice system as a weapon to obtain royalties on questionable patents from small businesses. On the other hand, the entertainment companies who hold most of the valuable copyrights are not viewed as baleful as their patent holding counterparts. Yet there are still similar negative consequences to the wealth producing capacity of the economy.
The Governments authority to issue patents and copyrights stems directly from the constitution. Article I Section VIII reads: “To promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries;” The founders clearly recognized that if citizens were not allowed to profit from their own creative endeavors than they might self-restrain to the detriment of the whole society. However, the words limited time showed that they also recognized that a right into perpetuity could be detrimental to new wealth creation. Consider for example how expensive an automobile would be if every originally patented device in the car except the wheels required a royalty payment.
The same wealth restraining dynamic is true for copyrighted material. Consider the Wizard Of Oz. After the original copyrights expired, a new stage musical in an urban black vernacular became a hit on Broadway followed by another Broadway hit based on the relationship of the witch characters. More wealth was created benefiting more people. You will have to wait a couple of centuries for that to occur off of Harry Potter. Creative resources from the 1920’s, 1930’s and 40’s lies fallow because a copyright prevents exploitation even though the original creator has long since met his final reward. Often it is even difficult determining who is the current copyright holder of an old and near forgotten work. But be assured, anyone using the hoary old book, song, or play will likely soon find his efforts rewarded with a lawsuit.
What would be the Goldilocks limited time duration that rewards creativity but still allows maximum economic development?
Recent Comments