United States: When Judges Met Jazz: The First Decade Of Jazz Law

Last Updated: June 5 2014
Article by David A. Kluft

In 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"

2

King Oliver's Creole Jazz Band, California, 1921 (Frank Driggs Collection)

The 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, 1921

King and Carter Jazzing Orchestra, Houston, 1921

Like 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)

(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 Berlin

1911 Sheet Music by Irving Berlin

The 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)

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.

To view Foley Hoag's Trademark and Copyright Law Blog please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
15 Dec 2017, Seminar, Boston, United States

The New England Electricity Restructuring Roundtable has been meeting bimonthly since 1995 to discuss current topics related to important changes in the electric power industry in Massachusetts and throughout New England.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.