Monthly Archives: April 2014

Did Bix Record a Film Soundtrack? || Guest post by David Drazin

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Five and a half minutes into the 1931 film, Morals for Women1 (1931), directed by Mort Blumenstock, the female lead played by Bessie Love goes dancing with her returning hometown boyfriend, played by John Holland. A montage sequence showing them enjoying New York’s nightlife resolves with them at a restaurant. The music on the soundtrack is I’ll Be a Friend With Pleasure.

Twenty-one minutes into the film, David Rollins, as Bessie Love’s character’s brother, is out with pals in a café or speakeasy.   A jazz band is heard (but not seen). There’s a hot cornet break and, but wait! For a few seconds it sounded like Bix!

At thirty-two minutes, Bessie Love peels a page off a calendar. July 13 becomes July 14, 1931. At nearly forty minutes into this fifty-one minute film, I’ll Be a Friend With Pleasure is heard again.

Is there any evidence from existing research that Bix could have recorded a film soundtrack for a New York-produced feature in mid-1931?

In a letter home on March 4, 1931 from the 44th Street Hotel in New York, Bix wrote: “I may go back on the camel hour or syncronize (sic) movies…”2

This is a wonderfully evocative offhand remark. Researching that is problematic. Since many film prints are lost, we can’t have them all. There’s currently no systematic way to view New York-produced films of 1930-1931 compared to listening to hot jazz records that have been made chronologically available on CD reissues.

There is also this general consensus: “…not much is documented in his summer, 1931, activities.”3

Renting agent, George Kraslow (4/8/59): “During the next few weeks Bix did no outside work of any kind and did not leave the building save to buy gin.”4

This seems pretty final, but is it? If Bix were hired to record a film soundtrack, where would it have taken place?

I’ll Be a Friend With Pleasure was recorded September 8, 19305 and released October 24, 19306 for Victor, located in Camden, New Jersey. “…Jesse Lasky’s announcement in October 1929 that Paramount aimed to create a “complete production center” in New York,…”Our plans call for the creation of a miniature Hollywood in Astoria,” Lasky beamed…February 1930…To direct…shorts (Larry) Kent’s staff now included…Morton Blumenstock…”7

The director of Morals for Women (formerly Big City Interlude) was definitely directing in New York.

“Because so many films produced in the East at this time were equally marginal (and therefore hard to research), historians have generally found it easier to conclude that there simply was no film production going on outside Paramount or Warner Bros., a complete misreading of the often feverish activity actually taking place.”8

Johnny Powell (10/31/61): “…we would go to Loew’s New York Theater and attend the 8:30 a.m. movie. We would sit in the balcony with a jug of gin under the seat. Whenever someone in the film took a drink we would join in. Some of those “society” films featured considerable drinking and it got to be hard on us to stumble out of the theater at 11:00 a.m. drunk, into the bright sun, with the press of the crowded sidewalk.”9

Another evocative description, with Bix going to the nearby movies quite often. But it doesn’t prove Bix never had anything to do after 11:00 a.m.

Where were some of the talking-picture studios of New York at that time? E.B. Kohlenbeck’s American Sound Studios, 344 W. 44th Street10; Powers Cinephone…723 Seventh Avenue (New Jersey). Powers soon moved…to a converted factory building at 29-20 40th Avenue in Long Island City11; Caravel Studio at 29-18 40th Avenue; Voca Film – 122 Fifth Avenue, Manhattan, became Cromotone; Ideal…opposite 86th Street in Manhattan12; …Later in 1930 Louis Simon…appeared in a series of…comedies at Ideal, at least one of which was directed by Morton Blumenstock.13

The talking-picture studios were all around Bix, and his various home addresses.

“(Richardson) Turner offered them the use of his uncle’s 15-room apartment at 1 West 72nd, the famed Dakota…The flat was all soundproofed…”14 They could have recorded there.

June 16, 1931 letter home from Bix: “…I’ll give you my definite address in a few days – until then – 2460 32nd St. Astoria L.I.” The address supplied is the home of Rex Gavitte,15 (Smith) Ballew’s bassist.16

“Late June or early July – Bix moved into the grand (sic) floor of a new apartment building at 43-60 46th Street, Sunnyside, Queens.”17

There is no music credit on the film. Is there a reason why it couldn’t be Smith Ballew’s musicians with Bix?

The appearance of the date on the calendar in the film doesn’t prove when the film was made, though there’s evidence from myriad other films that dates on letters, calendars, checks, etc. were intended to be current. Why? Because young audiences don’t want to see an old movie. Movies should be up to date! This doesn’t explain why a distributor named Amity Pictures18 would take two dozen films made in 1930 – 1931 and reissue them in 1937 including Morals for Women. Nevertheless, the tight economics of the poverty row studios mandated the films to be shot in five to ten days and up and running locally as soon as possible if they hoped to make a profit and to get further financing.

Finally, I don’t mean to state beyond a doubt that Bix is the cornet player heard briefly in this film. However, their use of I’ll Be a Friend With Pleasure, is certainly very interesting, and Bix could have recorded for this and maybe other yet to be discovered New York-made films of 1931.

~

David Drazin is a jazz pianist and silent-film accompanist.

This article made use of three books:

  • Bix, The Leon Bix Beiderbecke Story, by Philip R. and Linda K. Evans; Prelike Press 1998.
  • Bix, Man and Legend, by Richard L. Sudhalter, Philip R. Evans with William Dean Myatt; Schirmer Books 1974.
  • Hollywood on the Hudson, by Richard Koszarski; Rutgers University Press 2010.

In the notes the books will be referred to respectively as: Evans, Sudhalter and Koszarski.

Notes:

1. Morals for Women is available on DVD from Alpha Video and is currently on You Tube.
2.  Evans, page 533.
3. Sudhalter, page 327.
4. Evans, page 544.
5.  Evans, page 517.
6. Evans, page 518.
7.  Koszarski, page 204.
8. Koszarski, page 239.
9. Evans, page 537.
10. Koszarski, page 235.
11. Koszarski, page 231.
12. Koszarski, page 231.
13. Koszarski, page 237.
14. Sudhalter, page 325.
15. Evans, page 541.
16. Sudhalter, page 326.
17. Evans, page 543.
18. IMDB Data Base.

A Circle and a “C”: One Hundred Years of Recorded Music in American Copyright, Part 35 || By Bruce D. Epperson

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Part 35

Judge Graffeo then used Wheaton v. Peters as a springboard for a lengthy analysis that has been heavily criticized because it bounced indiscriminately back and forth between cases dealing with two different issues: does the issuance (“publication”) of phonorecords under the 1909-1976 Copyright Act divest the owner’s right to the sound recording; and, does it divest the owner’s right to the composition contained on the recording? As we have seen in the previous installments of this blog, these are very different issues, each with their own history and law, but Graffeo mashed them together indiscriminately.

The Fred Waring and Paul Whiteman cases from the 1930s, the Metropolitan Opera v. Wagner-Nichols case (1950), Capitol Records v. Mercury Records (1955), Goldstein (1973), Rosette v. Rainbow Records (1976), and even the Z. Z. Top and Rolling Stones cases from the 1990s — Graffeo threw them all into the rhetorical pot. It seemed at first reading to create a nonsensical mishmash. But if you dig deeper, you can discern in Judge Graffeo’s legal ping-pong a common theme:

State common-law copyright protection can continue beyond the technical definition of publication in the absence of contrary statutory authority . . .because the federal Copyright Act did not protect musical recordings, state common-law could supply perpetual copyright protection to recordings without regard to the limitations of “publication” under the federal act . . . until 2067, no federal or state statutory impediment constricts this common-law durational component for pre-1972 sound recordings.

This meant that no “rule of the shorter term” applied. Regardless of when a work’s copyright expires in its home nation, its copyright is perpetual in the State of New York. I have argued previously that given the convoluted language of section 301 of the 1976 Copyright Act, there is some question as to what exactly will happen to the legal status of pre-1972 phonorecords on February 15, 2067. I also looked for some hint in this case that Judge Graffeo thinks that New York common-law copyright will outlast the federalization of pre-1972 phono records. But, her language is pretty ironclad; she has no doubt that they will pass out of the control of state law on February 15, 2067, unless Congress changes the date:

With the 1971, 1976 and subsequent congressional amendments to the federal Copyright Act, New York common law protection has been abrogated . . . state common-law copyright protection is no longer perpetual for sound recordings not covered by the federal act . . .The musical recordings at issue in the case, created before February 15, 1972, are therefore entitled to copyright protection under New York common-law until the effective date of federal preemption—February 15, 2067.

And finally, tucked in at the very end of her opinion, was an admission that “New York provides common-law copyright protection to sound recordings not covered by the federal Copyright Act, regardless of the public domain status in the country of origin, if the alleged act of infringement occurred in New York” [emphasis added]. In addition:

A copyright infringement cause of action in New York consists of two elements: (1) the existence of a valid copyright; and (2) unauthorized reproduction of the work protected by the copyright. 

You can read Capitol Records v. Naxos of America up, down, forwards and backwards, and you will never read a flat-out conclusion that Naxos committed copyright infringement. And the reason I believe you won’t is because they didn’t. They did not reproduce any of the CDs that were the subject of the controversy in the State of New York. So, in accordance with the 1973 Goldstein decision, Naxos could not have violated any New York music piracy or state copyright law. Moreover, they did not distribute CDs in the state knowing they had been reproduced without the permission of a legitimate owner.

From the perspective of Judge Graffeo, this was never a case about what Naxos did or didn’t do—that was irrelevant. This was a case about power. It was about who got to determine whether something was “published” or not: the state of New York or the federal government. Moreover, it will be New York’s law, not the federal government’s, that will be compared with foreign law to determine how ownership and duration should be awarded to a foreign-origin work. In essence, in matters of common-law copyright, New York will act as its own sovereign nation.

Will Capitol Records v. Naxos of America change the legal landscape? I doubt it. I don’t see it being used much as legal precedent, even in New York. I think Capitol v. Naxos was a lot of smoke and noise that didn’t really stand for much—after all, it never reached a conclusion on the core issue of infringement. The only thing you can take from it is this: don’t press your reissue CDs in the State of New York. And, it would probably be a pretty good idea to avoid selling them there as well.

Finis…