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Ain’t that dirt?
"You see, nobody wrote the Livery Stable Blues. Naw. Nobody writes any of that stuff. . . We was in the Schiller café, rehearsin’, see? And I suggests that we take the More Power Blues and hash ‘em up a bit. My friend, Ray Lopez he wrote the More Power Blues. All blues is alike . . .
The Original Dixieland Jazz Band’s Livery Stable Blues, the first jazz record ever pressed, was the subject of an extended court battle over the composition’s authorship. A mistake made by the Victor Talking Machine Company on its release meant that the tune was published and registered for copyright under a different title: Barnyard Blues. This discrepancy meant that the hit record was unprotected under copyright law.
Former ODJB clarinettist, Alcide “Yellow” Nuñez, who had been thrown out of the band over a disagreement with band leader Nick LaRocca, saw this as his opportunity to claim rights over the composition and seek revenge for his dismissal. He took the song to music publisher Roger Graham and copyrighted it under the original name of Livery Stable Blues.
In October 1917 LaRocca took Nuñez to court for plagiarism and the case was heard in the US Federal Court, Northern District of Illinois. It lasted ten days and became big news in the press as both parties gave elaborate testimony in order to prove their rights over the composition. Finally the judge ruled that the tune was based on numerous others – notably More Power Blues – and therefore it was not possible to name a single individual as the author. The case was subsequently thrown out of court:
". . neither Mr LaRocca and his associates nor Mr Nuñez and his associates conceived the idea of this melody. . . no human being could determine where that aria came from that they now claim was produced at the Schiller café for the first time . . . Whatever was produced by the rhythm was the result that pleased the patrons of the place, and it was the variation of the original music that accomplished the result and not the original music itself."
The irreconcilable dispute between the two parties over the authorship of Livery Stable Blues serves to highlight that a creative work is not the product of a single author but is generated as a result of a collaborative process within a network of individuals. Livery Stable Blues, like all creative works, is the result of a collaboration between individuals spread out in time; collectively built by the contributions of a huge array of musicians and enthusiasts, tweaking, changing, and building upon what came before. Moreover, as Judge Carpenter suggests in his summing up of the case, the tune was developed and tested in public at the Schilller café with the feedback of the crowd helping to determine its melody and rhythm. LaRocca and Nuñez’s highly questionable claims of ownership, brings to light the exploitation of melodies and rhythms collaboratively developed by (mainly black) musicians who would never profit from the music’s global success.
The conflicts between the collective nature of creative labour and the impulse to lock works down by claiming authorship, played out in the Livery Stable Blues case, continues to haunt creative production. Today, copyright automatically locks every creative work to an apparent author – denying legal reuse by future producers. In an increasingly networked world, where ideas are easier to share than ever before, property rights over knowledge and creativity have become a highly contested area.
Free/Libre and Open Source software models offer a chance to break with the past, allowing and encouraging ideas to be developed and tested in public spaces – as in the Schiller café – with the participation of all. Licenses, based on sharing, openness, and collaboration, limit the power of copyright – allowing the free use and reuse of creative works for future creative exchange, enriching rather than depleting the public domain.
La Rocca, D. J. Barnyard Blues (New York : Leo. Feist, 1917)
Lopez, Ray & Nunez, Alcide Livery Stable Blues (Chicago : Roger Graham, 1917)
Original Dixieland Jazz Band Livery Stable Blues (Victor 18255, 1917)
H.O Brunn The Story of the Original Dixieland Jazz Band (Louisiana State University Press, 1960)
Gillis, Frank Biography of a Jazz Tune in Jazz Journal (June 1963)