This post is authored by Heidi Bowles, current student at the UC Davis School of Law and former research assistant at Ohio State University Libraries’ Copyright Services.
Fourteen of Lil Hardin Armstrong’s songs entered the public domain on January 1, 2022. Lil Hardin Armstrong was a jazz pianist, singer, bandleader, and composer who worked mostly in Chicago in the 20th century. Raised in Memphis by her mother and grandmother, Hardin was trained in European classical piano. She played the organ for her church growing up and recalled being given stern looks from the pastor for jazzing up the hymns. She graduated from a music-focused high school and attended Fisk University for a short time before moving to Chicago with her family. Although her formal music training was in the style of European concert music and her mother and grandmother reportedly disparaged jazz at every opportunity, Hardin was regularly exposed to jazz through her childhood in Memphis. She recalled hearing her cousin play jazz on his guitar, and she lived near Beale Street, a monumental location in the jazz and blues history. Her mother and grandmother discouraged her from interacting with jazz—in their minds it was connected to the drugs and prostitution whose influence they wanted Hardin to stay far away from.
After moving to Chicago, Hardin started working as a demonstrator in a music store, earning $3 per week. According to Hardin, she took the job to learn new music and memorized all the music in the store as quickly as she could. While working at the store she met the famous jazz pianist Jelly Roll Morton and credits hearing him play as the inspiration for her heavy style. This job is also where she met the first band she played with in a cabaret, the New Orleans Creole Jazz Band.
After that band began to dissolve, she joined King Oliver’s Creole Jazz Band, where she began making almost $100 per week. She met Louis Armstrong while working with King Oliver. In 1924, after a few years of working together, they both attained divorces from their first spouses and got married. She mentored the younger Armstrong and taught him about European classical music. Hardin helped him refine his look and was responsible for branding him as a world-class trumpet player. Hardin and Armstrong separated in 1931 but did not legally divorce until 1938, when Armstrong and Alpha Smith wanted to get married.
Hardin and her husband often wrote music together for Louis Armstrong’s Hot Five, a prolific recording group with Lil Hardin Armstrong on piano, Louis Armstrong on cornet, Kid Ory on the trombone, Johnny Dodds on the clarinet, and Johnny St. Cyr on guitar and banjo. Most of Hardin’s songs that entered the public domain this year were written for and recorded by this group.
Copyright Process
The Copyright Act of 1909, which applies to works created before January 1, 1978, provided new works that followed proper formalities with an initial 28-year period of federal copyright protection. After the initial term of protection, and following a timely renewal registration with the U.S. Copyright Office, copyright could be renewed for another 28-year period. Under the original law, songs published in 1926 would have remained protected by copyright through 1982 at the latest (measured as a maximum term of 56 years from the date of publication). Changes in the law (in the Copyright Act of 1976 and the 1998 Sonny Bono Copyright Term Extension Act) extended the renewal period, making the maximum copyright term for works covered by the 1909 Copyright Act 95 years from the date of publication. Therefore, musical works first published in the U.S. in 1926 that met all required formalities, remained protected by copyright through 2021.
Additionally, the 1909 Copyright Act granted federal copyright protection for unpublished works that were registered with the U.S. Copyright Office. Musical compositions that were registered as unpublished works with the U.S. Copyright Office would receive the same term of federal protection as published works.
Copyright and music have had a complicated relationship throughout American history (see Katherine M. Leo’s dissertation, Blurred Lines: Musical Expertise in the History of American Copyright Litigation). When the 1909 Act was written, music was primarily transmitted through live performance, so the tangible medium of expression required for a work to be copyrightable was typically sheet music. The development and rising popularity of recording technology allowed musical performances themselves to be fixed, but copyright law did not quickly adjust to this new reality. There were patchwork state-level copyright provisions for sound recordings, but federal copyright law did not provide copyright protections to sound recordings until 1972 (Important note: This does not mean that pre-1972 sound recordings are public domain. Title II of the 2018 Music Modernization Act extended federal copyright protection to historical sound recordings, see the Library of Congress’s Copyright Breakdown: The Music Modernization Act and our earlier blog post on the public domain status of music for more information).
Publication status for a piece of music therefore relied on the distribution of its sheet music; a published recording of a song did not constitute a published piece of music. To register her work with the Copyright Office, a composer had to deposit sheet music with an application and $1 fee. This posed challenges for many jazz and blues musicians, whose musical traditions were largely oral so they did not need to learn the European musical notation required by the Copyright Office. Hardin was able to notate her compositions as a pianist trained in the European style, but even so, jazz is difficult to distill into a lead sheet. In the words of Eileen Southern, “Jazz is primarily an aural kind of music; its written score represents but a skeleton of what actually takes place during a performance” (The Music of Black Americans: A History, 363).
This has significant consequences for composers and rightsholders. A recent lawsuit over whether a riff in Led Zeppelin’s “Stairway to Heaven” infringed on the Michael Skidmore’s copyright in his song “Taurus” was decided based on the fact that musical works under the 1909 Copyright Act are only protected by copyright as far as their deposits cover (see DAC Beachcroft’s Sheet Music v. Sounds: Led Zeppelin Case Reminds us of Copyright Technicalities). This affords little protection to jazz, whose lead sheets are sparse and unrepresentative of the work.
Copyright’s slow reaction to recording technology, as well as elitist and Eurocentric ideas of what music should be, disadvantaged Black musicians and Black musical traditions in complex ways. For more information, see Candace G. Hine’s Black Musical Traditions and Copyright Law: Historical Tensions and Gary A. Rosen’s Adventures of a Jazz Age Lawyer: Nathan Burkan and the Making of Popular Culture (link to OSUL catalog).
1926 Songs
Hardin registered 14 songs for copyright in 1926 that entered the public domain on January 1, 2022. She renewed all copyrights in 1953. Of the female jazz and blues composers who copyrighted their songs in 1926, Hardin had the most registered by far and was the only woman with multiple songs who renewed the copyright in all of them. This shows a diligence that, according to Hardin, she did not have early on. In a 1967 interview with Max Jones, she claimed that:
When we wrote those tunes, forty years ago and so forth, we didn’t think it important to get our songs copyrighted or anything like that. We just put our names on them and thought about the immediate cash. Now I live off them, but it only happened after years.
She also mentioned the value of the royalties she received, which afforded her more freedom to choose which jobs to take. “Perdido Street Blues,” which entered the public domain this year, was one of the songs whose royalties she claimed were supporting her.
Most of her songs were recorded with Louis Armstrong’s Hot Five. The registration and renewal for these songs lists Hardin as the composer, although Hardin and Armstrong claimed they didn’t pay much attention to who claimed what copyright. They often wrote together and revised together during recording sessions, and there are characteristics of both Hardin and Armstrong in the songs. In collaborative music making like jazz, it is more difficult to identify a single author for the purposes of copyright. To be considered joint authors in a copyrighted work, each would have to make copyrightable contributions that they intend to be part of a unitary whole.
Coauthored Songs with Louis Armstrong
Five songs, “Flat Foot,” “I Can’t Say,” “Papa Dip,” “Perdido Street Blues,” and “Too Tight Blues,” were recorded by a group called the New Orleans Bootblacks, or the New Orleans Wanderers. This group was essentially the Hot Five with George Mitchell replacing Armstrong on the coronet, although early reviews reveal that some critics believed it was Armstrong until 1938. The group recorded eight songs in a two-day recording session—the other three recorded were Armstrong’s “Gate Mouth” and “Mixed Salad” (registered with the Copyright Office as “Take Your Finger Out of My Salad”) and Hardin’s “Mad Dog” (registered with the Copyright Office in 1927).
Although “Lillian Armstrong” alone was credited as the composer in these songs, Louis Armstrong claimed joint authorship when renewing the songs. Under copyright law only the author, or certain designated beneficiaries if the author is no longer living, can claim the renewal interest in the copyright (see the Copyright Office’s Circular on Copyright Renewal).[1] Armstrong claimed the renewal term as an author, and his renewal registrations list both himself and Hardin as authors. Hardin renewed the copyrights in the songs a month later, listing only herself as an author.
Typically, the Copyright Office will only accept renewal registrations with information that is different from the original registration if there is documented support that the new information is accurate.[2] If there are adverse claims about copyright ownership, the Copyright Office will notify both parties but will not decide whose claim is legitimate—that is handled independently by the parties and the courts.[3]
Many Armstrong biographers discuss a lawsuit between Hardin and Armstrong over the copyright ownership to their songs. One in particular, Travis J. Dempsey, writes:
Their parting remained cordial until some years later when Lil Armstrong filed suit over composer credits to songs she claimed to have written for the Hot Five and the Hot Seven. Songs in Contention were ‘Strutting With Some Barbecue,’ ‘Got No Blues,’ ‘Two Deuces,’ ‘Hotter Than That,’ ‘I’m Not Rough,’ ‘Pencil Papa,’ and ‘Perdido Street Blues.’
Lil’s lawyers won the copyright suit because the recordings simply listed the composer as L. Armstrong. Since Lil was a trained university musician and Louis had no academic credentials as a writer of music, the scale of justice balanced in her favor. Louis did not seek an appeal which might have tiled the second decision in his favor. In the first trial the court did not give any consideration to the fact that the songs in question were creative head arrangements, not written with pen in hand and put on manuscript. Furthermore, nobody on the jazz scene during the 1920’s was more creative than Louis Armstrong (The Louis Armstrong Odyssey, 86-87).
While the recording and the published Catalog of Copyright Entries shorten the composer name to L. Armstrong, the copyright applications themselves specify Lillian Armstrong as the composer. Dempsey does not cite a source for his information, but if there was a trial (although there does not seem to be any evidence they actually went to court), Hardin would not have received the benefit of the doubt simply because she was college-educated. Her name was on the original copyright records, and she was an established and successful songwriter in her own right.
Photo from the U.S. Copyright Office’s Virtual Card Catalog
Armstrong applied for the renewal in July 1953 (a month before Hardin’s renewal application in August 1953), but it did not appear until the 1954 Catalog of Copyright Entries. Based on this delay, it seems more likely that Armstrong was required to submit evidence that he was a coauthor.
This post is part of a larger project to identify women’s jazz and blues songs that entered the public domain in 2022. Listen to the Spotify playlist here.
Learn more about how Ohio State is celebrating the public domain at go.osu.edu/PublicDomainDay.
Sources and Further Reading
- Travis, Dempsey J. The Louis Armstrong Odyssey: From Jane Alley to America’s Jazz Ambassador. Chicago: Urban Research Press, Inc., 1997.
- Dickerson, James L. Just for a Thrill: Lil Hardin Armstrong, First Lady of Jazz. New York: Cooper Square Press, 2002.
- Hardin Armstrong, Lil. “Satchmo and Me: Lil’ Armstrong’s Own Story.” Transcribed by Robert S. Greene and Michael Hicks in American Music 25, no. 1 (Spring 2007): 106-18. https://proxy.lib.ohio-state.edu/login?url=https://search.ebscohost.com/login.aspx?direct=true&db=rft&AN=A546398&site=ehost-live.
- Hine, Candace G. “Black Musical Traditions and Copyright Law: Historical Tensions.” Michigan Journal of Race & Law 10, no. 2 (2004-2005): 463-494. https://heinonline.org/HOL/P?h=hein.journals/mjrl10&i=473.
- Jones, Max. “Lil Armstrong, Royalties, and the Old Songs (1967): The Melody Maker.” In The Louis Armstrong Companion: Eight Decades of Commentary, edited by Joshua Barnett, 42-44. New York: Schirmer, 1999.
- Leo, Katherine M. “Blurred Lines: Musical Expertise in the History of American Copyright Litigation.” PhD diss., The Ohio State University, 2016. http://rave.ohiolink.edu/etdc/view?acc_num=osu1461148846.
- Rosen, Gary A. Adventures of a Jazz Age Lawyer: Nathan Burkan and the Making of American Popular Culture. Oakland: University of California Press, 2020.
- Southern, Eileen. The Music of Black Americans: A History. 2nd ed. New York: Norton, 1983.
[1] There are a few exceptions to this, see Section 23 of the 1909 Copyright Act.
