TMFW 138 - The Judiciary Gets in on the Act (Part 2)

 

This week's entry is a continuation of last week's theme of judges getting creative with musical opinions.  And unlike the Taylor Swift and Eminem opinions from that entry, today's story is a bit more sneaky.  

 

The opinion in question is the 1987 decision from the federal Fifth Circuit Court of Appeals in the case United States vs. Abner.  (The lawyerly citation is U.S. v. Abner, 825 F.2d 835 (5th Cir. 1987).)  The case deals with whether a criminal defendant had effective assistance of counsel at trial - pretty dry stuff that has nothing to do with music.  What makes it today's TMFW is that the opinion sneaks in 19 different Talking Heads song and/or album titles. 

 

If you Google around about the case, you may get the impression that a judicial clerk wrote the opinion (allegedly to score free tickets to a Talking Heads show) and that judge Reynaldo Garza didn't recognize the myriad song references when he reviewed and signed the opinion.  But in a 1990 interview with Indiana University Law School's The Exordium newsletter (link goes to .txt file), the law clerk who wrote the opinion clarified the story.  

 

The opinion's author Steve Riggs explained: "When the Fifth Circuit would sit for arguments, we'd be in New Orleans, and the clerks would go out with some of the other judges at dinner. One night, I got to ask Judge [E. Grady] Jolly about a footnote he had dropped which made an uncited reference to Absalom, Absalom! by William Faulkner.  He got the biggest chuckle out of the fact that I had noticed. He said that he tries to zip up legal writing and encouraged Judge Garza to do the same...[when it came time to write the Abner opinion], I told him what Jolly had done with Faulkner, and asked him if we could do the same thing with popular song titles...The Judge said it was fine as long as the opinion was 'intellectually coherent and makes good sense.' The Judge got a terrible kick out of it."  

 

As it turns out, the Abner opinion was Riggs' last as a law clerk.  So his musical writing was a once in a lifetime event.   

 

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BONUS FACT:  Like the dinosaur named after Mark Knopfler in TMFW 45, I started this entry last week thinking that my examples were noteworthy for their uniqueness.  But after research I have discovered that music lyrics in legal opinions are common enough that they inspired a law review article analyzing their use.  (Not unlike the scholarly article breaking down Jay-Z's "99 Problems" that was featured in TMFW 99.)

 

BONUS FACT 2:  On the subject of judicial opinions and burning down the house, I enjoyed this report of a tax decision in Virginia.  A family bought a house that they intended to tear down, but to save themselves the trouble they allowed the local fire department to do a "training exercise" with it that involved burning it to the ground.  The family then wrote off the value of the house as a charitable deduction on their taxes.  The IRS didn't like that and it went to court.  (You will not be surprised that the taxman won.)  

 

BONUS FACT 3:  The federal Ninth Circuit Court of Appeals judge Alex Kozinski is famously playful in his opinions, and is an excellent writer.  In 1990, Kozinski wrote the opinion on a case dealing with alleged antitrust violations at a movie theater chain.  He took the opportunity to cram the opinion with over 200 movie titles.  

 

BONUS FACT 3.5:  Back in the infancy of slate.com, the site featured a series called "Slate Diaries," which was a series of entries by noteworthy people.  In 1996 (ANCIENT in internet years), Judge Kozinski did a 10-part diary.  You can read Day 1 here, and the rest by clicking "view all entries" and selecting a day.  I particularly like his Day 8 entry, which gives a little glimpse of daily life as a judge and a good story about he keeps things in perspective.

TMFW 137 - The Judiciary Gets in on the Act (Part 1)

 

Last year, the singer Jessie Braham (or maybe Graham; sources differ) sued Taylor Swift, claiming that she had plagiarized his song "Haters Gonna Hate" when writing her blockbuster hit "Shake It Off."  Braham had not much evidence behind him to sustain that allegation, other than that the refrain of his tune featured the lines "haters gonna hate, and players gonna play," while Swift's used "'cause the players gonna play play play play play / and the haters gonna hate hate hate hate hate..."

If you have listened to Braham's song (linked above), you have likely already concluded that other than the weak similarity of sharing two well-known phrases, there is precious little in common between the two songs.  (You may have also concluded that Braham's song is pretty bad.)  Last fall, a federal court agreed and dismissed the suit.  In her opinion (pdf link), federal magistrate judge Gail Standish did an excellent job highlighting both the legal standard for copyright claims and why Braham failed to meet it.  But what makes her dismissal order the topic of today's TMFW is her concluding paragraph.  In it, Judge Standish worked in references to 4 Taylor Swift songs, writing:

"At present, the Court is not saying that Braham can never, ever, ever get his case back in court,” Standish wrote. “But, for now, we have got problems, and the Court is not sure Braham can solve them. As currently drafted, the Complaint has a blank space—one that requires Braham to do more than write his name. And, upon consideration of the Court's explanation . . . Braham may discover that mere pleading Band-Aids will not fix the bullet holes in his case. At least for the moment, Defendants have shaken off this lawsuit."

As you might guess, Judge Standish's playfulness was noted widely by the press (e.g. this, this, this, this, this, this, this, and this.)  And when you think about, it was pretty fearless of her.  But it paid off beyond her wildest dreams: I bet Judge Standish had the best day reading about it.

I've got a bit more on this theme, but in the interest of being finished for today, and of padding my TMFW drafts folder, let's leave it here for now.  See you next week for the exciting conclusion.

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BONUS FACT: Similar to the strange-but-true story in TMFW 131 about Sarah McLachlan being sued by her stalker for inspiring a song, in 2003 Eminem was sued for defamation by the man that bullied him as a younger man and inspired a verse in the song "Brain Damage." 

In awarding summary judgment to Eminem, Michigan state court judge Deborah Servitto wrote a 14-page opinion that lays out the legal and factual details in plain language.  But, like Judge Standish, she had a little bit of fun at the end, including a final footnote that explained her ruling in ten stanzas (36 lines) of "rap." (sample lyrics: "If the language used is anything but pleasin' / It must be highly objectionable to a person of reason," and "It is therefore this Court's ultimate position / That Eminem is entitled to summary disposition.")

Kudos to Judge Servitto for losing herself in the moment and turning out such a goofy, great opinion. 

BONUS FACT 1.5:  It was particularly audacious of Eminem's bully to sue him: the abuse was so bad that in 1982 Eminem's mom sued the school district to stop it, naming specifically the kid who is referred to in Eminem's song and alleging that young Em suffered a cerebral concussion and post-traumatic headaches as a result of the beatings.  Holy cow.  

TMFW 136 - 50,000 Unique "Copies" of a Best-Selling Song

 

In TMFW 24, I wrote the story of Matt Farley, who found a clever way to game Spotify by flooding it with over 15,000 different songs, with the idea that even a few pennies per song would add up across the catalog.  Today's TMFW is the (only vaguely) similar story of George W. Johnson, an early recording star who is estimated to have made 50,000 recordings of one song.  

 

Johnson worked, quite literally, in the earliest days of recording.  Thomas Edison invented the phonographic cylinder in 1877, but the machine used tinfoil to capture sound, and the delicate grooves in the recordings would be erased after just a few plays.  With that limited functionality, the machine was a curiosity but not much more.  Edison was busy with other things during that time - the electric light bulb was first tested in 1879, and was developed (and litigated) for several years thereafter - and so he left the phonograph alone until the mid-1880s.  When he returned to his device, he figured out a way to make "permanent" recordings using wax instead of tinfoil, and the phonograph became commercially successful. 

 

By 1889 the machine was sufficiently popular that pre-recorded cylinders were introduced, and the nickname "records" was born.  One year later in 1890, Mssrs. Louis Glass and William S. Arnold patented the "Coin Actuated Attachment for Phonographs," which took a nickel and played a cylinder into headphone-like "listening tubes" that patrons would stick in their ears.  They were the first jukeboxes, and they proved popular in arcades and taverns.  

 

To keep people interested in phonographs, owners needed a variety of content.  So, just like today, popular performers made records and sold them to the public.  But, very much unlike today, the recording means for wax cylinders was direct.  In other words, to make a decent recording, the artist had to perform a song live.   "Early phonograph recordings were accomplished literally by brute force – all acoustically: The performers would stand before a funnel-shaped horn attached to a phonograph and belt out their tunes.   High volumes of sound were required to force the recording diaphragm (made variously of glass, mica, or copper) to vibrate sufficiently to force the cutting stylus to make a good carving on the blank wax cylinder."  

 

That means that in the early days of commercial music, all recordings were "masters," in that they were the original cut of an artist's performance.  So if a song was a hit, and people wanted to buy more copies, Edison and his competitors had to make them by re-recording the song, over and over and over and over and over and over and over again.  (During recording sessions, they would cut down on the need for repetition by arraying four devices in a way that each could capture the original performance, but that was the extent of "mass production" of wax cylinders.) 

 

Enter George W. Johnson (whose story is well told at that link).  Born a slave in Virginia in 1846, Johnson was "lucky" enough to be taken as a baby to be a playmate for a white child of similar age.  This was called being a "body servant," with the slave becoming a sort of butler or valet for the family as he got older.  That position of very relative privilege allowed Johnson to learn how to read and to write, it gave him exposure to music from a young age, and it made him comfortable in interacting with white people (or more to the point, he became facile in making white people comfortable interacting with him.)

 

After the Civil War, Johnson made his way to New York City, where he became well-known as a street performer.  Johnson was particularly skilled at whistling; "his notes are as perfect, it [was] said, as those of a flute."  And as a practiced street musician, he could sing loudly for most of the day without losing tone or volume in his voice.  

 

Those two skills turned out to be very valuable for Johnson.  In the nascent days of wax cylinder recording, companies needed performers who could sing the same song, repeatedly, for days on end.  And they needed both volume and pitch that would come through well on recordings.  Johnson's baritone and his whistle were perfect.  In early 1890, Johnson performed two songs for licensees of the North American Phonographic Company.  The first was "The Whistling Coon," an almost unbelievably racist song (lyrics at the link) about a "limpy, happy, chuckleheaded, huckleberry nig" who is happy when he whistles in tune.  The second was "The Laughing Song," a still-racist-but-less-so song that features a chorus of Johnson laughing heartily.  

 

Both of Johnson's tunes were big hits.  In fact, for the next seven years, Johnson recorded them pretty much continuously.  All told, it is estimated that he made 50,000 recordings of "The Laughing Song," for virtually every phonograph recording company that existed at the time.  The song is thought to be the highest selling record of the 1890s. 

 

Though he did not earn royalties or songwriting credits, during his period of fame Johnson is said to have earned up to $100 per week, at a time when typical wages were around $500 per year.  Unfortunately, Johnson's success was short-lived.  By 1902, phonograph companies had developed a way to mass-produce copies of cylinders and discs from a master recording.  So once they got a good take from Johnson, they no longer required his services.  

 

From there, Johnson's story has a sad ending: he had a troubled personal life (including being charged - but ultimately acquitted - of murdering his common-law wife), and struggled with poverty and alcohol abuse.  He died penniless in 1914, and was buried in an unmarked "pauper's grave" in New York City.  

 

Thankfully, people have since taken note of his remarkable life, and are telling his story.  I hope that, wherever he is, he is laughing.
 

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BONUS FACT:  When writing this entry, I first called the early pay phonographs a "nickelodeon," as that is the world that I know for them.  But today's research taught me that "nickelodeon" does not refer to those machines at all.  Instead, a nickelodeon was a very early form of movie theater that was popular in the 1900s and 1910s, typically a converted storefront that played short films in a loop for a 5 cent admission.  The popularity of nickelodeons (and their reputation as low quality, uncomfortable places) paved the way for the growth of the motion picture industry and the birth of lavish "movie palaces" in the 1920s.

 

BONUS FACT 1.5:  Nickelodeons got their name from taking "nickel" (duh) and "odeon," the ancient Greek word for theaters with roofs.  (The Odéon is also the name of a famous theater in Paris from the early 1800s, and in the early 20th century the name had become synonymous with fancy performance spaces.  So a "nickel Odéon" was a sort of apt wordplay for a cheap show.)

 

BONUS FACT 1.75:  So why are old jukeboxes sometimes called nickelodeons?  The misnomer comes from the 1949 song "Music! Music! Music!," which features the line "put another nickel in // in the nickelodeon."  Per that song's Wikipedia entry, "there is no prior record of 'Nickelodeon' being used as a brand or common name for any coin-operated device, and the trademark owner was a chain of silent movie theaters that operated from 1905 to 1915. All uses of 'nickelodeon' to refer to a jukebox appear to trace directly to this song."

 

BONUS FACT 1.875:  So what did you call the machines that played at taverns and bars in the olden days?  The contemporaneous terms were simply "phonograph," "nickel-in-the-slot machine," "jukebox" (first coined 1939), or orchestrion (for devices that used instruments or pipes to create live music as opposed to recorded music).  The more you know.

TMFW 135 - 4000 Holes and 1 Mean Letter

Late last year, I was REALLY excited to discover a great piece of music history related to the Beatles' classic song "A Day in the Life." And after a little bit more research, now is the right time to tell the story.

This week last year, the Royal Albert Hall in London tweeted and posted to its website a 1967 letter from the venue to The Beatles' late manager (and Fifth Beatle) Brian Epstein.  As the post explains, the letter "was unearthed whilst clearing an old archive room as part of the Hall’s ongoing steam heating refurbishment project."

The letter is an objection "in the strongest conceivable terms" to The Beatles name-checking the Hall in the final verse of "A Day in the Life":

I read the news today, oh boy

Four thousand holes in Blackburn, Lancashire

And though the holes were rather small

They had to count them all

Now they know how many holes it takes to fill the Albert Hall

I'd love to turn you on

That lyric doesn't make a lot of sense - Blackburn, Lancashire is over 200 miles northwest of London, after all - and the stodgy managers at the Hall were apparently concerned that listeners would draw the wrong conclusions.

Writing for the Hall, its then Chief Executive Ernest O'Follipar complained that "[i]n the lyric that mentions the Albert Hall, the singer (thought to be John Lennon) heavily implies several gross inaccuracies which we consider to be misleading to the general public who may hear the song, and potentially catastrophic to our reputation - one which has taken almost a century to achieve."  The letter went on to object to three specific inaccuracies: (1) that there are four thousand holes in the Royal Albert Hall, (2) that the Royal Albert Hall is located in Blackburn, Lancashire, and (3) that the singer would "love to 'turn on' the Royal Albert Hall of Arts and Sciences." 

O'Follipar was particularly concerned about the four thousand holes allegation, noting that "it is likely to deter concertgoers who do not want to fall into a hole," and that "I am also baffled as to where this figure has come from - even if you count the doorways as holes, that would still only make thirty-two."

The letter ends with suggested changes to the lyrics, which promote the Royal Albert Hall's then-upcoming season of shows. In the alternative, the Hall suggested that perhaps Ringo could add backing vocals that "contradict John Lennon's lies," suggesting "Not that there are any holes in the auditorium, John!"

In addition to the letter, the Albert Hall's post includes a response from John Lennon in which he blows off the hall's geographic concerns and pokes fun at them by noting "we won't be saying sorry, because it takes too long to get to Blackburn from our studio at Abbey Road."

Being a Beatles fan and the writer of a weekly music trivia blog, as noted above I was thrilled when I happened upon the letter from the Royal Albert Hall.   Even without 49 years of history and hindsight, it is so silly to think that someone could have taken that lyric so seriously and reacted in that way.  And it was amazing that a no-name like Ernest O'Follipar would go so far as to suggest alternate lyrics to John Lennon.  "What a great entry this will make," I thought.  "I can't believe this wasn't a bigger story when it came out," I thought.  "It's almost too good to be true," I thought.  

Then finally, I saw the date of the Albert Hall's blog post.  April 1.  It turns out the whole thing was an April Fools' joke. And it was a thinly disguised one at that - O'Follipar is an anagram of "April Fool."  

Well done, Royal Albert Hall, and shame on me.

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BONUS FACT (A REAL ONE):  So what does that lyric "four thousand holes in Blackburn, Lancashire" mean?  Well, it turns out John Lennon really did "read the news today" when he wrote that song, and he cherry-picked a few stories and molded the verses around them.  One of the newspaper stories was about the abundance of potholes on the streets in Blackburn.  

According to the book The Complete Beatles Songs by Steve Turner (which sits on my coffee table), the story "was picked from the Near and Far column" in the January 17, 1967 edition of the Daily Mail.  As for the reference to the Royal Albert Hall, John was stuck looking for a rhyme to "rather small," and an old schoolmate of his suggested "Albert Hall."  It fit, so it made the grade.

BONUS FACT 2:  "A Day in The Life" features an abrupt musical/lyrical shift in the middle, from John Lennon's dreamy contemplations to Paul McCartney's boppy rundown of his morning (i.e. "woke up, fell out of bed, dragged a comb across my head...")

If those two parts sound a bit incongruous, it's because they are: to make "A Day in the Life," John stuck one of his unfinished songs together with one of Paul's.  That the two half-conceived songs meshed so beautifully and turned into such a monumental track is Exhibit 792 of The Beatles' genius.

BONUS FACT 3:  On the subject of musical letters, one of my favorite blogs Letters of Note recently had a wonderful (and real) letter from the famous comic book artist Robert Crumb to the Swedish "free jazz" saxophone player Mats Gustafsson.  Apparently, Gustafsson was a great admirer of Crumb's and sent Crumb one of his records in appreciation.

Crumb was not impressed with what he heard, and pulled no punches in a letter back to Gustafsson.  He started the note by saying "I gotta tell you, on the cover of the CD of your sax playing, which is black and has no text on it, I wrote in large block letters, in silver ink, 'Torturing The saxophone—Mats Gustafsson.'"  

Crumb went on from there: "I just totally fail to find anything enjoyable about this, or to see what this has to do with music as I understand it, or what in God´s name is going on in your head that you want to make such noises on a musical instrument. Quite frankly, I was kind of shocked at what a negative, unpleasant experience it was, listening to it. I had to take it off long before it reached the end. I just don´t get it. I don’t understand what it is about."

For his part, Gustafsson seemed quite pleased with the critique from Crumb.  So much so that he named his next record Torturing the Saxophone, with the title in large block letters in silver ink.  I love that.