When Judges Met Jazz: The First Decade Of Jazz Law

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

1In honor of African American Music Appreciation Month, sometimes known as Black Music Month, we recall the first judicial decisions in which jazz music was the subject of a legal dispute. Although jazz originated in the late nineteenth century in the Southern United States, the word “jazz” appears to have been applied to music for the first time between 1912 and 1915.  Before the decade was out, jazz music was producing legions of listeners, late night dance crowds and plenty of middle class angst. By the 1920’s, controversies concerning the genre had wended their way through the lower courts and began to appear in published opinions. Judicial attempts to grapple with this new social phenomenon – albeit sometimes clumsy and frequently offensive – provide a fascinating window onto the early twentieth century.

“Bizarre Extremes and Freak Abnormalities”

2The first published opinion to discuss jazz music was In re Application of Hall, a 1920 decision by the Court of Appeal of California.  In 1919, Mark Hall built a “Social Club” on Summit avenue in Pasadena, which featured late night jazz dancing.  A group of area residents complained that the “the piano tunes and the shuffling of dancing feet annoyed them.”

In response, the City of Pasadena enacted an ordinance prohibiting “dancing or the performance of dance music” within twenty-five feet of any residence between 10:00pm and 8:00am.  Mr. Hall defied the ordinance, and was thrown in jail to await trial.  The issue before the court, according to the LA Times, was “what, if any, effect jazz music has on the health and comfort” of Pasadena residents.

Upon Mr. Hall’s application for writ of habeas corpus, the Court of Appeal released him and declared that the ordinance was unreasonable.  The Court was not opposed to the city’s exercise of police powers to limit public nuisances, but this particular ordinance was overbroad in that it failed to differentiate between, for example, commercial jazz dance halls and the “private amusement and enjoyment of house-holders” incidental to city living.

Had the Court stopped there, posterity may have regarded the decision as enlightened.  Unfortunately, the Court continued:

Who, for instance, could possibly be disturbed or annoyed by the graceful and stately minuet? Similarly, dance music, one of Strauss’ waltzes, for instance, might float into the neighboring dwelling without jarring the most sensitive human tympanum, or it might be played so softly that it would not be heard outside of the room in which performed. It should be remembered that even in these days of bizarre extremes and freak abnormalities, the muscle-tickling jazz has not yet succeeded in entirely excluding all sane dance-music from the places where the devotees of Terpsichore are wont to foregather.  And experts tells us that even jazz, like certain other things fast fading into oblivion, may be denatured — a consummation devoutly to be wished.

With that gratuitous elegy to an imagined norm, the Court instructed the city commissioners to try again with a more specific ordinance, presumably one that preserved the “stately minuet” but targeted the “freak abnormality” that was jazz.

“More Discordant than Tom-Tom or Chinese Gong”

King and Carter Jazzing Orchestra, Houston, 1921Like the residents of Pasadena, John Trueheart of San Antonio was none too happy when the Silver Leaf dance club opened right across Josephine Street from his home. Although the club had a permit, Mr. Trueheart sought a preliminary injunction against late night jazz dancing, alleging that the club was a nuisance because the “music therein and the unchaperoned females and others who meet there and dance at night until 11 or 12 o’clock, and are boisterous and sometimes profane, greatly disturb [him] and his family.”

The trial court denied the injunction, but in 1923 Chief Justice William Seat Fly of the Texas Court of Appeals, in Trueheart v. Parker, reversed and remanded.  The Court stated:

No self-respecting citizen with a home in which lives his wife and children could fail to be disturbed by the proximity of a place of assemblage at night of men and women, who to the accompaniment of screeching pianos, high-keyed violins and blaring saxophones, emitting the strains of barbaric jazz, more discordant than tom-tom or Chinese gong, transform rest and slumber into nightmare, and render hideous the hours set apart by nature for their enjoyment…

In 1928, however, the Texas heat revealed Mr. Trueheart to be a liar.  It turned out that Trueheart had been spending all his time in the part of his house closest to the jazz music. On appeal for a second time after remand and discovery, Judge Fly was greatly disturbed that Trueheart had “a number of rooms in his house, and yet he occupied the northwest corner room, the hottest in any house in this part of Texas, as everyone who resides here well knows.” The only explanation for voluntarily staying in the hottest and loudest room in the house all night was that Mr. Trueheart, despite his feud with the club, had become “entranced” with its music. Trueheart “had added to his disturbed feelings by seeking places where he knew he would be most disturbed, and in a house where his two sons and wife were presumably not disturbed, because they did not so testify.” Based on the revelation, Judge Fly finally dissolved the injunction.

“The Call of the Wild”

(Library of Congress)Meanwhile, in 1922, Neva Hilliker of Chatsworth, Iowa filed a petition for divorce from her husband of ten years.  Mrs. Hilliker had been frequenting dance halls with the couple’s bachelorette tenants and, according to the Iowa Supreme Court, “while her ambition was to trip the light fantastic, the symphony of sighing saxophone and the staccato of syncopated jazz held no charm for him.”  In other words, she wanted to go out – he wanted her to stay home. Moreover, during arguments over this issue, he allegedly threatened to strike her and on one occasion choked her. Therefore, in Hilliker v. Hilliker, the trial court granted Mrs. Hilliker’s petition for divorce, as well as custody of her son.

But in 1923, the Iowa Supreme Court reversed.  In a decision that was equal parts overt misogyny and thinly-concealed racism, the Court described Mrs. Hilliker’s fondness for jazz as “the call of the wild” and asked:  “Were the protests of the husband without justification?  Is he alone to blame?” The Court answered both questions in the negative. While characterizing the physical abuse as “slight and transient,” the court held that “a little denial of pleasurable ambition on the part of the wife, and a little sacrifice by her for the benefit of home relations and in the interest of a growing boy, will solve the difficulty and result in a permanent reconciliation.” The divorce petition was denied.

“Common Garden Variety”

1911 Sheet Music by Irving BerlinThe first published opinion addressing jazz as intellectual property appears to be the matter of Irving Berlin, Inc. v. Daigle, a copyright claim brought in the Eastern District of Louisiana. Irving Berlin was already a composing legend by the late 1920’s. In 1926, Berlin alleged that a live band at a dance pavilion in Plaquemine, Louisiana played three of his compositions without permission.  Berlin asked for the minimum statutory damages amount available at the time for “orchestral compositions,” $250 per infringement.

Although the District Court found that the dance pavilion had committed infringement, it refused to award the relief requested. According to the Court, “musical compositions such as these popular songs, set to “jazz” or syncopated tunes” were not true orchestral compositions, but “only the common garden variety of musical compositions, by the infringement of which no obvious substantial damage is wrought.”  The Court therefore applied a different provision of the statutory damages statute, and the result was an award of only $10 per infringement.  Fortunately for Berlin, the Fifth Circuit later reversed this decision and, without any further unsolicited music criticism, remanded the matter with orders to award $250 per song.

“Rowdy and Undesirable”

Blood, Sweat & Tears, 1976 (Billboard Magazine)But social norms change. The first matter involving jazz music to reach the Supreme Court was Newport v. Fact Concerts, and by then jazz was in a very different cultural position. The case involved a 1975 jazz festival in Newport, RI, which had scheduled the jazz-rock group Blood, Sweat & Tears as a replacement for the great Sarah Vaughan.  Newport’s Mayor did not object to the festival hosting Vaughn (or Miles Davis, Stan Getz and Dave Brubeck – nice lineup), but he was afraid that this new act would attract a “rowdy and undesirable audience” filled with “long-haired hangers-on.” When the Mayor attempted to cancel the performance, the festival promoters explained that the group was in fact a jazz band that had played in Carnegie Hall. The Mayor then offered to let them play, but only if they agreed to play just jazz – no rock.

A Rhode Island Superior Court judge enjoined the Mayor from interfering with the concert on content-based grounds. The festival subsequently won a large Section 1983 verdict against the city, which the First Circuit affirmed, although the Supreme Court later reversed the punitive damages portion. In its opinion, the Supreme Court noted in passing that the Blood, Sweat & Tears concert was quiet and “took place without incident.”  Just what you would expect  - after all, it was only a jazz concert.




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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