Duke Ellington And Copyright: Five Things You Should Know

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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On April 29, sometimes called “Duke Ellington Day,” we celebrate the life and artistic accomplishments of the great musician and bandleader, Edward Kennedy (“Duke”) Ellington, who was born in 1899 and passed away in 1974. On his 70th birthday, Ellington got a jam session at the Nixon White House and the Presidential Medal of Freedom.  Now, for his 118th birthday, he gets an article in the Trademark and Copyright Law Blog. I think we can call agree this is a big step up for him.

In honor of Ellington and his music, which you should start playing in the background right now, here are five things you should know about Duke Ellington and copyright.

  1. It Don’t Mean A Thing Unless Duke Compiles It

Because Ellington worked with his band in a group environment, the compositions that bear his name were usually collaborations incorporating the ideas and performances of numerous band members or other co-writers. Jazz journalist James Lincoln Collier once wrote that:

Of all the songs on which Ellington’s reputation as a songwriter – and his ASCAP royalties as well – is based, only ‘Solitude’ appears to have been entirely his work. For the rest, he was at best a collaborator, at worst merely the arranger of a band version of the tune.

Some band members were not thrilled with Ellington taking credit for their contributions. Trombonist Lawrence Brown famously told Ellington:

I don’t consider you a composer. You are a compiler.

Trumpeter Clark Terry had a more positive spin, describing Ellington as “a compiler of deeds and ideas, with a great facility to make something out of what possibly would have been nothing.” An even more persuasive defense came from composer Billy Strayhorn, who said:

So this guy says you and he wrote it, but he thinks he wrote it. He thinks you just put it down on paper. But what you did was put it down on paper, harmonized it, straightened out the bad phrases, and added things to it, so you could hear the finished product. Now, really, who wrote it?  . . . But the proof is that these people don’t go somewhere else and write beautiful music. You don’t hear anything else from them. You do from Ellington.

Put another way: You might come up with a good idea, but it don’t mean a thing until compiled with that Ellington swing.

  1. A Creole Love [Close] Call

Ellington’s taking credit for his band members’ musical ideas came with a risk: What if that band member had already stolen the music from someone else? In 1927, Ellington composed and recorded Creole Love Call with Rudy Jackson, a clarinetist who had previously played with the King Oliver band. It turned out that Jackson had borrowed a great deal Creole Love Call from Oliver’s Camp Meeting Blues. As jazz historian Terry Teachout reports, Oliver had Ellington “dead to rights” and sent a “stiffly worded” ceased and desist letter to the copyright department of Ellington’s music publisher.

But there was a problem.  It turned out that Oliver had originally registered the “Camp Meeting Blues” with the Copyright office under the title “Temptation Blues,” only later to change its name prior to publication. This change prevented Oliver from being able to prove proper registration, and allowed Ellington to continue playing Creole Love Call throughout his career.

  1. Is the Satin Doll Harmony Copyrightable?

While Billy Strayhorn may have been a defender of Ellington’s “compiling,” Strayhorn’s heirs had a different view.

The instrumental melody of Ellington’s beloved jazz standard, Satin Doll, was written in 1953 by, depending on who you ask, either Ellington alone or Ellington and Strayhorn together. Later that year, Ellington registered the copyright to a lead sheet of the melody, with himself listed as sole author. Five years later, in 1958, a derivative work was registered with the Copyright Office, also containing the melody, but with a harmony and lyrics added to it. In the 1958 registration, Ellington was listed as the author of the music, and Strayhorn was listed as one of the authors of the lyrics.

In the 1990’s, after both Ellington and Strayhorn had passed away, their estates became embroiled in a dispute as to whether Strayhorn had any interest in the 1958 composition when played without the words. The case, Tempo Music v. Famous Music Corp., 838 F. Supp. 162 (S.D.N.Y. 1993), turned on a matter of first impression: whether the harmony was the proper subject matter of copyright. If harmony could be copyrighted, then the fact that it was first registered in the derivative work, of which Strayhorn was a joint author, would give Strayhorn an interest in the harmonized tune even when performed without the lyrics. If, on the other hand, harmony could not be copyrighted, then its addition to the derivative work was superfluous, and it gave Strayhorn no interest in the song when it was performed without music. (Read that again if you need to – we’ll wait). Got it?

This put the Ellington estate in the odd position of arguing that Ellington’s harmony was not sufficiently original to be copyrightable. The Ellington estate argued that, as a general matter, “only the melody and structure are distinctively original,” whereas harmony “results only from the formulaic application of centuries-old compositional rules.”  The Court agreed that once a melody is established, there are limited choices in selecting a harmony, but found that these limited choices were nevertheless creative choices that influenced “the mood, feel and sound of a piece.”  The Court therefore refused the Ellington estate’s request to declare the harmony not subject to copyright as a matter of law. The estates settled shortly after the Court’s decision was issued.

  1. Things Ain’t What They Used To Be: The Foreign Affiliate Dispute

As recently as 2014, in Ellington v. EMI Music, Inc., 224 N.Y. 3d 239 (2015), the New York Court of Appeals found itself interpreting an Ellington contract from 1961. The contract, between Ellington and certain American music publishers, handed over to the American publishers the right to manage and promote certain compositions abroad. In return, the American publishers were required to pay back to the Ellington family 50% of the net royalties received from foreign publishers.

Why did this cause a dispute in 2014? Because by then, the foreign publishers were no longer separate companies. The music business had gone global, so both the American and the foreign publishers were now owned by the same multi-national corporations. Not surprisingly, the publishers wanted to interpret the contract as requiring them to hand over only 50% of what they channeled to their American affiliates, whereas Ellington’s heirs wanted to interpret the contract as entitling them to 50% of whatever the now-multi-national publishers netted globally.

A New York trial court dismissed the Ellington heirs’ suit and eventually the Court of Appeals affirmed. The contract required the American publishers to turn over only 50% of the “net revenue actually received . . . from . . . foreign publication,” which the Court of Appeals interpreted as unambiguously supporting the American publishers’ reading of the document. According to the Court of Appeals, the fact that this unambiguous language was now (perhaps unfairly) more favorable to the publishers was simply the result of the “globalization of the music industry.”

The Ellington family further argued that the contract language stated that the American publishers’ payment obligation also applied to “affiliates” of the American publishers, which now included the foreign publishers. However, the Court of Appeals held that the term “affiliates” should be interpreted to mean the affiliates that existed in 1961, not entities that became affiliates later. Court of Appeals Judge Robert Smith concurred in the result but took issue with the majority’s construction of the word “affiliates,” opining that it could encourage companies to create affiliates just to avoid contractual obligations. Judge Jenny Rivera dissented for similar reasons, finding “something troubling” about the majority’s interpretation, which “sets the stage for the type of abuse alleged here, namely corporate reconfigurations that avoid the understanding of the parties.”

  1. Take the A Train: The World’s Worst Copyright Joke

Finally, Duke Ellington is responsible for (or the victim of) the world’s most dreadful copyright joke. There are various versions, but it goes something like this:

Did you hear about the Canadian composer who copied Duke Ellington’s Take the A Train?

Yeah, he wrote a song called: Take the Train, Eh?

Ba dump bump.

The author is indebted to the following sources: Eric Hobsbawm, The Jazz Scene (1960); James Lincoln Collier, The Reception of Jazz in America (1988); Burton Peretti,  The Creation of Jazz (1992); James Lincoln Collier, Duke Ellington (1993); Anne Bartow, Copyrights and Creative Copying, 1 UOLTJ 75 (2004); David Troutt, I Own Therefore I Am, 20 Fordham Intell. Prop. Media & Ent. L.J. 373 (2010); Terry Teachout, Duke: A Life of Duke Ellington (2013); Robert Suggs, A Functional Approach to Copyright Policy, 83 U. Cin. L. Rev. 1293 (2015); and of course Nimmer on Copyright.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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