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Fixing Improvisation: Copyright and African American Vernacular Dancers in the Early Twentieth Century

Abstract and Keywords

This chapter juxtaposes brief case studies of African American vernacular dancers from the first half of the twentieth century in order to reexamine the relationship between the ideology of intellectual property law and the traditions of jazz and tap dance, which rely heavily on improvisation. The examples of the blackface performer Johnny Hudgins, who claimed a copyright in his pantomime routine in the 1920s, and of Fred and Sledge, the class-act dance duo featured in the hit 1948 musical Kiss Me, Kate, whose choreography was copyrighted by the white modern dancer Hanya Holm, prompt a rethinking of the assumed opposition between the originality and fixity requirements of copyright law and the improvisatory ethos of jazz and tap dance. Ultimately, the chapter argues that whether claiming or disavowing uniqueness, embracing or resisting documentation, African American vernacular dancers were both advantaged and hampered by copyright law.

Keywords: improvisation, copyright, documentation, fixity, African American vernacular dance, Johnny Hudgins, Kiss Me, Kate, Fred and Sledge

In 1952, the German-born modern dancer Hanya Holm copyrighted the dances she choreographed for the hit 1948 Broadway musical Kiss Me, Kate and reportedly “made history” as the first to secure a copyright for a choreographic composition.1 Although choreography was not recognized by United States copyright law in its own right until 1976, the Labanotated score2 that Holm submitted was granted protection as a dramatico-musical composition. Not included in the score was the jazz-tap routine performed by African American “specialty” dancers in the musical’s show-stopping number, “Too Darn Hot.” Instead, notes in the score indicated that “the exact arrangement varied according to what the negros [sic] could do.”3 The unnamed “negros” who performed this routine in the late 1940s and early 1950s included the comedy- and class-act dance teams Fred Davis and Eddie Sledge, Charles Cook and Ernest Brown, Honi Coles and Cholly Atkins, and the Wallace Brothers.

The exclusion of African American jazz dance from the copyrighted score of Kiss Me, Kate calls up a set of oppositions that seem to arise whenever intellectual property law and black cultural practices are discussed in tandem. Where U.S. copyright law grants protection to “original works of authorship fixed in a tangible medium of expression,”4 black vernacular traditions that place a premium on improvisation5 tend to elude the fixity that documentation requires.6 Correspondingly, where the copyright system has benefited white artists who produce written records of their output, it has consistently failed to recognize or reward African American artists, whose oral traditions have so often been treated as “raw material” and therefore free for the taking. The withholding of royalties from black blues musicians is perhaps the most vivid example of the racialized allocation of intellectual property rights in the U.S., but a number of legal critics have argued that Western ideas of singular authorship and fixity embedded in copyright law are incompatible with African American vernacular forms more broadly. As Kembrew McLeod writes, “The intertextual practices that characterize many aspects of African-American culture conflict with a particular way of understanding authorship (p. 340) and ownership that originated in Western Enlightenment and Romanticist thought.”7 Certainly, a large body of scholarship has demonstrated that black vernacular traditions are not only collectively created, orally transmitted, and improvisational, but also make regular use of “signifyin’ ” or intertextual techniques.8 As such, they fail to conform to the very “structural elements of the copyright system—such as the requirements of tangible (written) form, and minimal standard of originality.”9

Yet this narrative of conflict and failure is not the only story to be told about copyright’s historical relationship to black artists working in improvisatory traditions. Over two decades before Holm obtained her Kiss Me, Kate copyright, the African American comic dancer Johnny Hudgins secured a copyright in London on a booklet that detailed a series of his pantomime routines, including his celebrated “Mwa Mwa” act, in which he corporeally mimicked the sounds of an accompanying trumpet. The booklet proclaimed the originality of Hudgins’s routines and decreed, “No one is allowed to impersonate me, or use any parts of said Act unless given a written consent from JOHNNY HUDGINS, and if so it must be announced on all programs or from the Stage.”10

Hudgins’s turn to the institution of copyright to protect his act suggests the need to think beyond totalizing oppositions between the ideology of intellectual property law and the practice of African American jazz dancers. This chapter aims to offer a more nuanced account of that relationship by juxtaposing brief case studies of Hudgins and the specialty dancers in Kiss Me, Kate as they came into contact with legal claims of ownership. Given copyright’s originality and fixity requirements, these cases force us to confront questions about the risks and rewards for black vernacular dancers of claiming uniqueness and of submitting to documentation. As dance scholar Danielle Goldman has recently written, although performance in general and improvisation in specific are often valued precisely because they are thought to resist “the trap of documentation” and thereby evade the regulatory mechanisms of our capitalist reproductive economy, the stakes of this “resistance” should not be overlooked.11 The examples of Hudgins and the Kiss Me, Kate dancers help show that the stakes were not only historiographic (who was awarded a place in the historical record), but also economic (who accrued financial and artistic credit for their embodied expression). Because these African American performers were at one and the same time immersed in dance traditions that privileged improvisation and trying to survive in a white-controlled theatrical marketplace, exploring the complex dynamics of their engagement with copyright can offer insight into the possibilities and pitfalls of navigating between the ethos of improvisation and the mandates of intellectual property law.

Spontaneity, Fixity, and Ownership: The Case of Johnny Hudgins

Born in Baltimore, Johnny Hudgins (1896–1990) was what Marshall and Jean Stearns in their book Jazz Dance call an “eccentric” dancer, the term serving as “a catchall for (p. 341) dancers who have their own non-standard movements and sell themselves on their individual styles.”12 A blackface performer at a time when burnt cork makeup was still a familiar if no longer universal stage practice, Hudgins’s specialties consisted mainly of pantomimed movement gestures and sliding steps. He began his career as a song-and-dance man in local theatres in Baltimore before being hired as a dancer on the white burlesque circuit, which he toured for a number of years. In 1924, Hudgins joined the all-black Noble Sissle and Eubie Blake revue The Chocolate Dandies. One evening in the course of the revue’s run, he later explained, “I got hoarse and the trumpet man was making these sounds and I just moved my mouth. The trumpet player caught the way I was doing my mouth and I cut out all the singing and went into pantomime with trumpet and this pantomime song. I named it—‘Wow, Wow.’ And I pantomimed throughout the whole show and I pantomimed ever since.”13

Apocryphal or not, Hudgins’s account of the impromptu invention of his dance routine serves as an instructive place to begin assessing the interplay between markers of improvisation and markers of ownership in his work. A commonplace trope among jazz artists, Hudgins’s tale of accidental discovery of the routine that would make him famous signals both his bona fides as an agile improviser and his authorial “genius.”14 Caught on stage with a bout of laryngitis, Hudgins ditches the score and literally plays it by ear, letting his body stand in for his voice. In the process, he discovers a new specialty for himself as a pantomimist. The story touts his ability to think on (and with) his feet, a prized quality among vernacular dancers.

Even while celebrating his spontaneity, Hudgins’s narrative serves to reinforce the originality of his act. Although, as intellectual property rights scholars have pointed out, the originality requirement of copyright law is not without contradiction, it has meant, at a minimum, that a work cannot be copied from another but must issue directly from the author.15 In practice, the Lockean principle of possessing property in one’s “person” has weighed heavily on determinations of originality. According to legal scholar McLeod, “Just as Locke understood property as being created when a person mixes one’s labor with materials found in nature, the author’s “property” became “his” own when he stamps his personality on the work—doing this in an “original” manner.”16 And so a “discourse of the original genius” has persisted within copyright’s implicit notions of creativity.17 Somewhat counterintuitively, the alleged haphazardness of Hudgins’s initial “Mwa Mwa” routine actually buttressed its originality to his person: the pantomimed gestures were a response to and derived from the particular conditions of his suddenly speechless body. This, incidentally, was also a defining feature of the eccentric dancer—distinctive moves linked to unique person.18

Of course, Hudgins’s origination tale doubtlessly conceals as much as it reveals. An undated newspaper article offers an alternative account of Hudgins’s creative process:

For nine years he traveled around the country playing at all the major burlesque houses.

During this time he was changing his act and developing it into a pantomime blackface routine similar to that of the pre-twenties star—Bert Williams—who came to fame doing an imitation of whites doing imitations of blacks. (p. 342)

He became so successful he was taken into the renowned Noble Sissle and Eubie Blake production “Chocolate Dandies” that enjoyed long runs in New York and Boston.19

In this admittedly more credible telling, Hudgins’s act was not the fortuitous byproduct of unforeseen events but the result of time, labor, calculation, and fine-tuning. This version also identifies Bert Williams, one of the most popular performers of the late minstrelsy and vaudeville eras, as a direct source for Hudgins’s routine. Classified by the Stearnses as one of the earliest eccentric dancers, Williams, like Hudgins, performed in blackface and was best known for his comedic pantomime, as well as for dancing the Cakewalk with his partner George Walker, who played the “strutting dandy” to Williams’s “shiftless, shuffling ‘darky’ ” role.20 Observers of Hudgins often noted his similarities to Williams, who died in 1922, even anointing him Williams’s successor.21 In the same interview in which he talked up his accidental discovery of the “Mwa Mwa” routine, Hudgins himself cited Williams’s influence: “In my dances, those steps they came to me—my first inspiration for dancing was Bert Williams.”22 For Hudgins, then, claiming spontaneity and originality did not mean disavowing precursors.

Yet there were times when Hudgins renounced improvisation altogether. In 1924, Bertram Whitney, the white producer of The Chocolate Dandies, sued Hudgins for violating the terms of his contract. Facing across-the-board salary cuts from Whitney, and with his star on the rise, Hudgins left the Broadway revue to earn higher pay as a featured performer in a New York nightclub. In an effort to prevent his departure, Whitney sought an injunction against Hudgins, claiming he was a “unique and extraordinary” performer whose services were “irreplaceable”—reportedly the first time this legal claim was made about an African American artist.23 In his deposition, Whitney appraised Hudgins’s value in terms of his propensity for improvisation. “He had a limitless number of dance steps,” Whitney testified of Hudgins. “In fact, no two dances by him were alike; he seemed to make up his own steps as he went along.”24 In their ultimately successful defense, Hudgins and his lawyers countered Whitney’s claim that there was anything dynamic about Hudgins’s performance, maintaining that his dance act had remained more or less static throughout his stage career. There was “slight or no variance,” Hudgins stated in his deposition, “between what I did in burlesque for eight years, what I did in … ‘The Chocolate Dandies’ during my engagement therein, and in what I am now [d]‌oing in the ‘Club Alabam Revue.’25

Part and parcel of denying that Hudgins possessed “any unique or extraordinary ability as a dancer,” then, was rejecting the idea that he was either spontaneous or adept at transforming his routine over time. Insisting on his lack of worth as a performer in order to evade Whitney’s injunction, Hudgins emphasized his unvarying ordinariness.

Following several years on the heels of the Whitney affair, Hudgins’s decision to take out a copyright on his pantomime acts can be read as an implicit rejoinder to the position he was forced to take in the Whitney case. The nineteen-page copyrighted booklet is filled with unequivocal assertions of Hudgins’s originality. An early clause, for example, reads, “Every Expression, Move, Gesture, Pedal Evolution, Manoeuvre and Shuffle (p. 343) is JOHNNY HUDGINS[’s] own original creation.”26 At the back of the booklet, in what could have doubled as plaintiff’s evidence against him in the earlier lawsuit, Hudgins includes excerpts from newspaper reviews, which collectively attest to his uniqueness. An “extraordinary negro comedian,” trumpets the French L’Oeuvre27 and “one of the most original things we have ever seen.” “As unique and versatile a comic as graces the stage to-day,” announces the New York Telegraph, while the New York Daily Mirror and New York Variety, respectively, declare that “he possesses a unique way and a distinct sense of originality,” and that “his absolute originality places him as incomparable.”28

The more explicit goal of the copyright, which simultaneously rested on and sanctioned Hudgins’s claims of originality, was to block the rash of imitators seeking to capitalize on his “Mwa Mwa” routine, which became a sensation on both sides of the Atlantic in the 1920s. When a touring musical production took Hudgins to Europe in 1925, other performers evidently rushed in to fill his vacancy. The Lincoln Theater in Harlem even held a series of “Hudgins-imitator contests.”29 In Europe, too, Hudgins earned a reputation as “The Most Imitated Comedian on the Continent.”30 A 1928 article in the New York Amsterdam News points to Hudgins’s irritation at the pilfering. Although reportedly not opposed to duplicators with “the decency … to give him credit for what they are doing,” Hudgins threatened to sue “act grabbers” who refused to cite him as the originator of the “Mwa Mwa” routine.31 While it is unclear whether Hudgins’s British copyright would have stood up in a U.S. court of law, its very existence gave force to his legal threats.32

Bracketed by proclamations of originality, the core of the copyright booklet transcribes Hudgins’s routines for the tangible medium of print. In blow-by-blow accounts, he details the entrances and exits, dance steps, and gestures that composed his seven specialty acts, including the “Mwa Mwa” number. “Enter Stage with … droll shuffle, business of stumbling over Stage, nearly falling, also Clown with audience, vamping song with an eccentric step I call ‘Cutting Capers,’ ” the description of his most famous routine begins. Stopping suddenly, Hudgins tips his hat, smiles, and mimes a conversation with an audience member. This is quickly replaced with, in Hudgins’s words, an

expression of not recognizing them and asking them to leave [the] Theatre—by means of Pantomime and facial expressions—and just as I am about to put my hat on, it suddenly comes to me that I do know them and I show it by smiling back, speaking with a very broad smile, and looking very much pleased. After this … I glide back up-stage and do a long slide to the front[,]‌ landing right at [the] Footlights, … then from there I go into my Pantomime song called the “Mwa, Mwa, Mwa, Mwa, Mwa, Mwa, mwa.” A song in which I do not utter a word, but move my lips as if I were singing, while a muted Cornet … gives an imitation of a human voice singing “Mwa, Mwa.”

After performing a “low bow to the audience” followed by “a fast shuffle” and slide, Hudgins concludes the act by “skipping from one end of the Stage to the other” while “throwing imaginary flowers” from his hat to the audience.33

(p. 344) Was Hudgins’s documentation of his routine for the written page also a disavowal of improvisation? In one sense, the meticulous transcription seems consistent with the stance Hudgins took in the Whitney lawsuit that his routine contained “slight or no variance.” Much as that suit required Hudgins to make a trade-off—deny originality in order to maintain autonomy as a performer—it could be argued that copyright demanded another kind of capitulation—forsake improvisation in order to establish intellectual property rights over his routines.

But there is no compelling reason to conclude that “fixing” his act for the purposes of copyright protection squelched improvisation for Hudgins. In fact, evidence suggests otherwise. As the description above reveals, the version of “Mwa Mwa” that Hudgins committed to the page contains openings for “vamping” for and “clowning” with the audience. Even within a carefully choreographed sequence of gestures, in other words, there was room for play. Furthermore, a surviving musical score for the “Mwa Mwa” number (here called “Wa Wa”) contains annotations that read “ad lib with Johnny” at one point, and “repeat until Johnny drops hand in disgust” at another.34 These handwritten notes indicate that, far from giving a rigid, inflexible performance, Hudgins fooled around with timing and engaged in give-and-take with his accompanying musician, as well as with his audience. Fighting for ownership of his act in a marketplace where whites overwhelmingly controlled the means of production, Hudgins asserted intellectual property rights over his embodied performance but refused to give up the improvisational leeway that embodied performance afforded him.

Resisting Documentation? The Case of the Kiss Me, Kate Specialty Dancers

The nexus of copyright and improvisation played out rather differently for the African American dancers who appeared in the musical Kiss Me, Kate some twenty years after Hudgins’s heyday. From a historiographic perspective, their omission from the Labanotated score that Hanya Holm submitted to the Copyright Office in 1952 means that much less is known about their jazz number. The relative absence of documentation makes it much more difficult to draw conclusions about their relationship to either improvisation or intellectual property rights.

What can be said is that a pair of acrobatic jazz-tap dancers named Fred Davis and Eddie Sledge, known as Fred and Sledge, joined the original Broadway cast of Kiss Me, Kate and contributed greatly to its success. The backstage musical about a group of performers in a Baltimore production of Shakespeare’s The Taming of the Shrew opened on December 30, 1948, at the New Century Theatre on Broadway. Written by Bella and Samuel Spewack, with music and lyrics by Cole Porter, the show ran for a remarkable 1,077 performances.35 The musical’s official choreographer was the German émigré Hanya Holm (1893–1992), considered one of the “Big Four” pioneers of American (p. 345) modern dance, who turned to Broadway for employment when financial pressures forced her to disband her own company. The choreography for Kiss Me, Kate ran the gamut of dance styles, from ballet, modern, and jazz, to folk and court dance, but the show-stopper was “Too Darn Hot,” the only number in the almost exclusively white musical to feature African American dancers. Set in a back-stage alley where cast members played dice and smoked cigarettes, the number was sung by Lorenzo Fuller, who played the black valet Paul, and spotlighted what one critic termed the “lusty Harlem hoofing,” and another the “torrid pavement dancing,” of Fred and Sledge, who were eventually joined by the white soloist Harold Lang.36

Fred and Sledge were part of a black vernacular tradition of two-man comedy and class act dance teams that peaked during the swing era of the 1930s and 40s.37 Where comedy teams typically incorporated humor and eccentric dancing into their routines, and class or “flash” acts emphasized elegance and technical exactitude, both combined virtuosic rhythmic tapping with spectacular acrobatics. With a contemporaneous review describing Fred and Sledge as “good-looking well-dressed lads [who] work very well with precision taps and flying splits,” it is clear that the two were a class act.38

However little is known about the particulars of Fred and Sledge’s “Too Darn Hot” number, two-man tap acts like theirs generally infused set choreography with an improvisatory spirit. As dance scholar Constance Valis Hill explains, the competitive tap challenge was the “churning engine” of these theatrical acts:

Instead of being pitted against each other, they were partners (often billed as “brothers”) who, instead of one-upping each other, combined their specialties in building to a climax a routine in which structured improvisation was reserved for sections of dance, most often solos. Instead of mimicking each other’s steps, the two moved as one, each a mirror image of the other. Instead of copying each other for the purposes of mocking, the practice of signifying evolved into the repetition of rhythmic phrases that progressed into whole paragraphs of sound and movement. When traded back and forth, these phrases became a lively and witty dialogue between dancers: technical perfection personified. Even when the solos were set, the very structure and form of the class act challenge dance, in which patterns were repeated, varied, traded, and one-upped, allowed for a dynamic exchange of rhythm and movement that gave the performance the look of being improvised.39

The aesthetics of improvisation thus left their mark on even these more “refined” class acts. Like Hudgins, Fred and Sledge surely worked out their stage routine in advance while preserving the look and feel of spontaneity in performance.

Holm’s contributions to “Too Darn Hot” were limited to creating “some non-intruding but atmospherically effective jitterbug passages” for the Dancing Ensemble, who supported Fuller, Davis, Sledge, and Lang in the original Broadway staging.40 The Labanotated score for “Too Darn Hot,” created during rehearsals for the 1951 London production of Kiss Me, Kate when Holm hired the notator Ann Hutchinson to document her choreography, records only this background dancing.41 The accompanying explanation, cited in part at the opening of this chapter, reads: (p. 346)

This is a jazz number done with three negros [sic] who sang and danced. The exact arrangement varied according to what the negros [sic] could do, it was worked out as a duet with the third taking over as soloist part of the time. None of this is recorded as it was so individual. What is recorded is what the group did in the background. If the dance were to be reconstructed the solo parts would have to be inserted which would mean fresh choreography.42

Notwithstanding its brevity, the passage speaks volumes about the tensions between copyright and black vernacular performance. Simultaneously a record of an absence and an absence of a record, the text appears to epitomize improvisation’s resistance to documentation. The “three negros” [sic]—the two “specialty dancers,” played in London by the Wallace Brothers, and the character of Paul, played by Archie Savage43—perform in such an “individual” manner that their jazz routine eludes capture by Labanotation and must be newly arranged with “fresh choreography” every time the musical is staged. This seems the essence of refusing fixity.44

The implications of the jazz routine’s apparent resistance to being recorded were complex and multifaceted. From one perspective, in evading documentation, the number also evaded choreographic ownership by Holm. Because they were not included in the score Holm submitted to the Copyright Office, the contributions of the African American dancers to the show-stopping “Too Darn Hot” remained beyond the reach of her copyright. This case would thus seem to support a dichotomy between white, copyrightable choreography and black, uncopyrightable improvisation and, concomitantly, a romanticized view of black improvisatory dance as refusing to participate in a capitalist economy of reproduction.

But the costs of such resistance are equally clear here. Too “individual” to warrant the fixity of notation, lacking any stable relationship to the musical as a whole (one critic described the “Too Darn Hot” dancing as “rather alien to the rest of the choreography”),45 the jazz number could be treated as a mere “insert.” The routine, that is, along with the specialty dancers who devised it, could be easily extricated from a given production and replaced by entirely new choreography and dancers. Indeed, quite a few African American dance duos evidently rotated in and out of this slot.46 While cast changes are hardly an aberration in restagings of Broadway musicals, when contrasted with the constancy of Holm’s choreography, the exchangeability of the African American specialty dancers reflects their lack of durable value to the show.

Moreover, although Holm never explicitly claimed to choreograph nor to own the rights to the “Too Darn Hot” jazz routine, the acclaim she received as the putatively sole choreographer of Kiss Me, Kate, including the celebration of her copyright achievement and a New York Drama Critics’ Award, raises troubling questions about white credit for black choreographic labor. The experience of another two-man tap team who appeared in a later version of Kiss Me, Kate proves instructive. In 1949, several years before a brief stint in Kiss Me, Kate, the class-act dancers Honi Coles and Cholly Atkins joined the cast of Gentlemen Prefer Blondes, choreographed by the white ballet- and modern-trained dancer Agnes DeMille, and were featured in a second-act number called “Mamie is (p. 347) Mimi.” Recounting the episode in Jazz Dance, Cholly Atkins offers a window onto the choreographic process and subsequent allocation of credit:

“During rehearsals Agnes de Mille didn’t know what to do with us,” says Coles, “so finally Julie Styne, who hired us, took us aside and said, ‘Look, why don’t you fellows work up something, and I’ll get her to look at it.’ ” They located arranger Benny Payne, who knew how to write for tap-dance acts, and the three of them worked out a routine. “One afternoon, Miss de Mille took time off to look at it,” says Atkins. “She liked it and told us to keep it in.”

On went the show with the Coles-Atkins-Payne routine a hit, and Agnes de Mille listed as choreographer in the program. “Later on we had to get her permission to use our routine on Jack Haley’s Ford Hour,” says Coles. “She was very nice about it.” In her autobiography Miss de Mille writes that the “Mamie Is Mimi” number, along with several others, was devised “in a single short rehearsal,” presumably by Miss de Mille. This was the standard practice.47

Though it would be specious to let this anecdote stand in for all musicals with white choreographers and black specialty dancers, “Too Darn Hot” was no doubt put together in a somewhat analogous way. Returning to the missing notation in the copyrighted Labanotated score, the use of the passive voice to recount how the jazz tap number evolved—“it was worked out”—assumes greater significance. The absence of a fuller record of the routine made it all too easy to elide the labor and creativity of the African American improviser-choreographer-dancers responsible for it. And all too easy for Holm, the “highest browed” of white choreographers, who was armed with fixed and tangible evidence of her contributions, to receive credit for the whole of the musical’s choreography.48

None of this is intended to detract from what Holm did accomplish in terms of choreography or copyright with Kiss Me, Kate. Nor is it to suggest that documentation and intellectual property law were solutions to the racial inequities that made it so difficult for African American jazz and tap performers to receive due credit and compensation for their creative expression in the first half of the twentieth century. Although Johnny Hudgins was extremely successful at the peak of his popularity, reportedly becoming the “highest paid night club entertainer of his Race” in 1930, he fell out of favor with a later generation of performers and critics, due in no small part to his use of blackface.49 The fact that neither his name nor his once-famous “Mwa Mwa” routine is remembered today makes evident that copyright offers no guarantee against historical amnesia.

In addition, copyright, with its requirement that work be “fixed in a tangible medium of expression,” was (and continues to be) an extremely fraught construct, especially for dancers working in African American expressive traditions that privilege improvisation. While solo performers like Hudgins and two-man dance teams like Fred and Sledge worked hard to develop audience-pleasing routines that remained largely consistent from one performance to the next, they also found ways to preserve an aesthetic of (p. 348) spontaneity within their choreography, whether that meant vamping for theater-goers or making room for give-and-take with fellow performers. Indeed, as a rule, jazz and tap dancers were expected to improvise, and as was the case for Hudgins, their value to white producers sometimes rested on the (perceived) extemporaneousness of their performance. For these dancers, the most logical medium in which to record their expression was the body itself. The fact that Hudgins’s Silence booklet is the only documented example of a copyright held by an African American dancer in the first half of the twentieth century that I have been able to locate is a reminder of how uncharacteristic his formal pursuit of intellectual property rights was.

Just the same, that pursuit should prompt us to rethink the conventional wisdom that copyright law is always and already antithetical to improvisatory traditions, or that it has worked only to disadvantage African American vernacular performers. However uncertain the legitimacy of Hudgins’s British copyright inside the United States (obtained decades before choreography was granted protection by U.S. law), its very existence afforded Hudgins a means of pushing back against white claims on his labor and against imitators trying to make a buck off his choreography. By the same token, the situation of the specialty dancers in Kiss Me, Kate should prompt us to think carefully about the implications of resisting documentation. Even as the African American dancers employed in the hit musical avoided capture by a notation system designed to record Euro-American choreography, they could not evade a larger, racialized system of authorial credit that “invisibilized” their contributions.50 For black jazz and tap dancers working in the white-dominated capitalist marketplace of the first half of the twentieth century, it was not a matter of simply choosing between the ideology of copyright and the practice of improvisation but, rather, of dealing with the consequences when the two converged.

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                                            “Johnny Hudgins Back in Night Club Revue.” Chicago Defender, May 17, 1930, 10.Find this resource:

                                              “Johnny Hudgins Is Coming Home.” Chicago Defender, July 28, 1928, 7.Find this resource:

                                                “Johnny Hudgins Is Still Going Big on Broadway.” Chicago Defender, May 8, 1926, 7.Find this resource:

                                                  Kiss Me, Kate. Labanotated score, Dance Notation Bureau Library, New York City.Find this resource:

                                                    Kraut, Anthea. “‘Stealing Steps’ and Signature Moves: Embodied Theories of Dance as Intellectual Property.” Theatre Journal 62, no. 2 (May 2010): 173–189.Find this resource:

                                                      Kraut, Anthea. “Whose Choreography? Josephine Baker and the Question of (Dance) Authorship.” The Scholar and Feminist Online 6, nos. 1–2 (Fall 2007/Spring 2008). http://sfonline.barnard.edu/baker/kraut_01.htm. Accessed Dec. 12, 2012.

                                                      (p. 353) Lepecki, André. “Inscribing Dance.” In Of the Presence of the Body: Essays on Dance and Performance Theory, edited by André Lepecki, 124–139. Middletown: Wesleyan University Press, 2004.Find this resource:

                                                        Malone, Jacqui. Steppin’ on the Blues: The Visible Rhythms of African American Dance. Urbana: University of Illinois Press, 1996.Find this resource:

                                                          “Broadway on its Toes.” New York Times, January 23, 1949, SM18.Find this resource:

                                                            Martin, John. “The Dance: Copyright.” New York Times, March 30, 1952, X10.Find this resource:

                                                              McLeod, Kembrew. Owning Culture: Authorship, Ownership, and Intellectual Property Law. New York: Peter Lang, 2001.Find this resource:

                                                                O’Meally, Robert. “On Burke and the Vernacular: Ralph Ellison’s Boomerang of History.” In History and Memory in African-American Culture, edited by Geneviève Fabre and Robert O’Meally, 244–260. New York: Oxford University Press, 1994.Find this resource:

                                                                  Phelan, Peggy. “The Ontology of Performance: Representation without Reproduction.” In Unmarked: The Politics of Performance, 146–166. London and New York: Routledge, 1993.Find this resource:

                                                                    Price, Monroe and Malla Pollack. “The Author in Copyright: Notes for the Literary Critic,” in The Construction of Authorship: Textual Appropriation in Law and Literature, edited by Martha Woodmansee and Peter Jaszi, 439–456. Durham, NC: Duke University Press, 1994.Find this resource:

                                                                      Powell, Richard. “Art History and Black Memory: Toward a ‘Blues Aesthetic.’ ” In History and Memory in African-American Culture, edited by Geneviève Fabre and Robert O’Meally, 228–243. New York: Oxford University Press, 1994.Find this resource:

                                                                        Program, Kiss Me, Kate, London, 1951. http://www.sondheimguide.com/porter/kissuk.html. Accessed June 30, 2011.

                                                                        Rev. of Copacabana Night Club. The Billboard, April 1, 1950, 54.Find this resource:

                                                                          Rose, Mark. Authors and Owners: The Invention of Copyright. Cambridge, MA: Harvard University Press, 1993.Find this resource:

                                                                            Saint-Amour, Paul K. The Copywrights: Intellectual Property and the Literary Imagination. Ithaca, NY: Cornell University Press, 2003.Find this resource:

                                                                              Schur, Richard L. Parodies of Ownership: Hip-Hop Aesthetics and Intellectual Property Law. Ann Arbor: University of Michigan Press, 2009.Find this resource:

                                                                                Stearns, Marshall, and Jean Stearns. Jazz Dance: The Story of American Vernacular Dance. New York: Schirmer Books, 1968.Find this resource:

                                                                                  Terry, Walter. “Dance: Miss Holm and Her Fine ‘Kiss Me, Kate’ Choreography.” New York Herald Tribune, Hanya Holm Clippings File, Dance Division, New York Public Library.Find this resource:

                                                                                    “Theater Dance.” Clipping from PM Star, January 4, 1949, Hanya Holm Scrapbooks, Dance Division, New York Public Library.Find this resource:

                                                                                      Todd, Arthur. “A Brace of Musicals This Season on Broadway.” Dance (March 1949): 28–29. Dance Clipping File, Musical Comedies, Kiss Me, Kate, New York Public Library.Find this resource:

                                                                                        U.S. Copyright Office, “Copyright in General FAQ.” http://www.copyright.gov/help/faq/faq-general.html#what. Accessed June 29, 2011.

                                                                                        Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York University Press, 2001.Find this resource:

                                                                                          Valis Hill, Constance. “Stepping, Stealing, Sharing, and Daring.” In Taken by Surprise: A Dance Improvisation Reader, edited by Ann Cooper Albright and David Gere, 89–102. Middletown, CT: Wesleyan University Press, 2003.Find this resource:

                                                                                            Whitney, Bertram C. v. Johnny Hudgins, et. al. (Lee Shubert, Jacob J. Shubert, The Winter Garden Company, and Arthur Lyons). Index no. 40459, submitted Oct. 31, 1924, New York Supreme Court, County of New York.Find this resource:

                                                                                              Notes:

                                                                                              (1.) John Martin, “The Dance: Copyright,” New York Times, March 30, 1952, X10.

                                                                                              (2.) Labanotation is a system of symbols used to record movement, based on the ideas of Rudolf Laban.

                                                                                              (3.) Kiss Me, Kate. Labanotated score, Dance Notation Bureau Library, New York City.

                                                                                              (4.) U.S. Copyright Office, “Copyright in General FAQ,” http://www.copyright.gov/help/faq/faq-general.html#what. Accessed June 29, 2011.

                                                                                              (5.) In Steppin’ on the Blues: The Visible Rhythms of African American Dance (Urbana: University of Illinois Press, 1996), Jacqui Malone defines “vernacular” dance as that which makes visible the rhythms of African American music and identifies its hallmarks as “improvisation and spontaneity, propulsive rhythm, call-and-response patterns, self-expression, elegance, and control” (2).

                                                                                              (6.) The conventional wisdom about improvisation and fixation can be summed up by Derek Bailey’s assertion that “there is something central to the spirit of voluntary improvisation which is opposed to the aims and contradicts the idea of documentation.” In Improvisation: Its Nature and Practice in Music (New York: Da Capo Press, 1992), ix.

                                                                                              (7.) Kembrew McLeod, Owning Culture: Authorship, Ownership, and Intellectual Property Law (New York: Peter Lang, 2001), 71. See, among others, Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001), in which he argues that “American copyright … clearly conflicts with the aesthetic principles of West African music and dance” (126); Richard L. Schur, Parodies of Ownership: Hip-Hop Aesthetics and Intellectual Property Law (Ann Arbor: University of Michigan Press, 2009); and Candace G. Hines, “Black Musical Traditions and Copyright Law: Historical Tensions,” Michigan Journal of Race & Law 10 (spring 2005): 463–494.

                                                                                              (8.) On black vernacular aesthetics, see, for example: Houston A. Baker, Blues, Ideology, and Afro-American Literature: A Vernacular Theory (Chicago: University of Chicago Press, 1984); Henry Louis Gates, Jr., The Signifying Monkey: A Theory of Afro-American Literary Criticism (New York: Oxford University Press, 1988); Richard Powell, “Art History and Black Memory: Toward a ‘Blues Aesthetic,’ ” in History and Memory in African-American Culture, ed. Geneviève Fabre and Robert O’Meally (New York: Oxford University Press, 1994), 228–243; Robert O’Meally, “On Burke and the Vernacular: Ralph Ellison’s Boomerang of History,” in History and Memory in African-American Culture, ed. Geneviève Fabre and Robert O’Meally (New York: Oxford University Press, 1994), 244–260; and Malone, Steppin’ on the Blues.

                                                                                              (9.) K. J. Greene, “Copyright, Culture & Black Music: A Legacy of Unequal Protection,” Hastings Communication & Entertainment Law Journal 21 (1999): 342.

                                                                                              (10.) Johnny Hudgins, Silence, Copyright No. 746, The Cranbourn Press, London, n.d. Jean-Claude Baker private collection, New York City. My sincere thanks to Jean-Claude Baker for generously opening his collection of Hudgins material to me.

                                                                                              (11.) Danielle Goldman, I Want to Be Ready: Improvised Dance as a Practice of Freedom (Ann Arbor: The University of Michigan Press, 2010), 11–12. Goldman here is citing André Lepecki’s essay “Inscribing Dance,” in Of the Presence of the Body: Essays on Dance and Performance Theory, ed. André Lepecki (Middletown: Wesleyan University Press, 2004), 135. Performance studies scholar Peggy Phelan (in)famously argued that performance’s ephemerality—the fact that its very condition is its disappearance—gives it a “distinctive oppositional edge” and enables it to “elude … regulation and control.” See “The Ontology of Performance: Representation without Reproduction,” in Unmarked: The Politics of Performance (London and New York: Routledge, 1993), 148.

                                                                                              (12.) Marshall and Jean Stearns, Jazz Dance: The Story of American Vernacular Dance (New York: Schirmer Books, 1968), 232. For more on eccentric jazz dancing and on the career of Johnny Hudgins, see Brian Harker, “Louis Armstrong, Eccentric Dance, and the Evolution of Jazz on the Eve of Swing,” Journal of the American Musicological Society 61.1 (Spring 2008): 67–121. My thanks to Brian for sharing information about his research on Hudgins.

                                                                                              (13.) Mura Dehn, “Johnny Hudgins,” Papers on Afro-American Social Dance, folder 25, Dance Division, The New York Public Library.

                                                                                              (14.) See, for example, Brent Hayes Edwards, “Louis Armstrong and the Syntax of Scat,” Critical Inquiry 28, no. 3 (Spring 2002): 618–649. Hudgins’s one-time cast-mate Josephine Baker also claimed that the chorus line clowning that helped launch her career was entirely spontaneous. See Anthea Kraut, “Whose Choreography?: Josephine Baker and the Question of (Dance) Authorship,” The Scholar and Feminist Online 6, nos. 1–2 (Fall 2007/Spring 2008), http://sfonline.barnard.edu/baker/kraut_01.htm.

                                                                                              (15.) The defining ruling on the matter of originality is the Supreme Court case of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), which ruled that the information compiled in a telephone book did not possess sufficient creativity to merit copyright protection. Paul K. Saint-Amour, The Copywrights: Intellectual Property and the Literary Imagination (Ithaca, NY: Cornell University Press, 2003).

                                                                                              (17.) Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, MA: Harvard University Press, 1993), 134.

                                                                                              (18.) See Anthea Kraut, “‘Stealing Steps’ and Signature Moves: Embodied Theories of Dance as Intellectual Property,” Theatre Journal 62, no. 2 (May 2010): 173–189, for more on the ways in which a dancer’s idiosyncratic movement could serve as a property-like claim on dance.

                                                                                              (19.) Sam Spence, “A Vaudevillian Remembers,” n.s., n.d. Newspaper Clippings, Johnny Hudgins Papers, Box 1, Folder 4, Emory University Manuscript, Archives, and Rare Book Library. Special thanks to Leah Weinryb Grohsgal for her adept research assistance.

                                                                                              (20.) Stearns, Jazz Dance, 117, 121. For more on Williams, see Louis Chude-Sokei, The Last Darky: Bert Williams, Black-on-Black Minstrelsy, and the African Diaspora (Durham: Duke University Press, 2006).

                                                                                              (21.) “Johnny Hudgins Is Still Going Big on Broadway,” Chicago Defender, May 8, 1926, 7. One of Hudgins’s routines, in which he ballroom danced with an imaginary partner, was apparently a direct take-off on one of Williams’s acts. “Johnny Hudgins Joins Blackbirds,” Chicago Defender September 1, 1928, n.p.

                                                                                              (22.) Mura Dehn interview, papers on Afro-American Social Dance.

                                                                                              (23.) “Hudgins in Suit,” Chicago Defender, November 1, 1924, 6.

                                                                                              (24.) Bertram C. Whitney v. Johnny Hudgins, et al. (Lee Shubert, Jacob J. Shubert, The Winter Garden Company, and Arthur Lyons), index no. 40459, submitted October 31, 1924, New York Supreme Court, County of New York.

                                                                                              (25.) Bertram C. Whitney v. Johnny Hudgins, et al.

                                                                                              (27.) Hudgins, Silence. Although the program booklet attributes this quotation to the “Paris Ceuvre,” this was almost certainly a mistaken reference to the daily L’Oeuvre newspaper.

                                                                                              (29.) David Hinckley, “Not Just Black and White,” New York Daily News, September 3, 2000, http://www.nydailynews.com/archives/entertainment/2000/09/03/2000-09-03_not_just_black___white_the_c.html (accessed June 29, 2011).

                                                                                              (30.) Clipping, Johnny Hudgins scrapbook, Jean-Claude Baker private collection.

                                                                                              (31.) “Hudgins Protests Use of His Act by Others,” New York Amsterdam News, August 22, 1928, Johnny Hudgins scrapbook, Jean-Claude Baker private collection.

                                                                                              (32.) Unlike U.S. law at the time, the British Copyright Act of 1911 deemed “dramatic work” to include “any piece for … choreographic work or entertainment in dumb show.” Copyright Act, 1911, http://www.legislation.gov.uk/ukpga/Geo5/1-2/46/introduction/enacted (accessed June 29, 2011). Although the language of British copyright law does not specify that a work must be “fixed in a tangible medium of expression” to merit protection, it is possible that, as a non-British subject, publishing his booklet in London was a way for Hudgins to qualify his work for protection. The law states that “copyright shall subsist throughout the parts of His Majesty’s dominions … in every original literary dramatic musical and artistic work, if … in the case of a published work, the work was first published within such parts of His Majesty’s dominions.” Furthermore, at least one newspaper believed that Hudgins copyrighted his Mwa Mwa routine under U.S. law, although I have not been able to confirm the existence of this U.S. copyright. “Johnny Hudgins is Coming Home,” Chicago Defender, July 28, 1928, 7.

                                                                                              (34.) “Wa Wa Number,” Johnny Hudgins Papers, Hudgins/MSS 1029, Box 2, Folder 25, Emory University Manuscript, Archives, and Rare Book Library.

                                                                                              (35.) David Ewen, New Complete Book of the American Musical Theater (New York: Holt, Rinehart and Winston, 1970), 277.

                                                                                              (36.) “Theater Dance,” Clipping from PM Star, January 4, 1949, Hanya Holm Scrapbooks, Dance Division, New York Public Library; Brooks Atkinson, “At the Theatre: ‘Kiss Me, Kate,’ ” New York Times On The Web, December 31, 1948, http://www.nytimes.com/books/98/11/29/specials/porter-kate.html (accessed June 30, 2011).

                                                                                              (38.) Rev. of Copacabana Night Club, The Billboard, April 1, 1950, 54. The two are characterized as “Acrobatic, Flash” in Rusty E. Frank, Tap!: The Greatest Tap Dance Stars and Their Stories, 1900–1955 (New York: Da Capo Press, 1994), 288.

                                                                                              (39.) Constance Valis Hill, “Stepping, Stealing, Sharing, and Daring,” in Taken by Surprise: A Dance Improvisation Reader, ed. Ann Cooper Albright and David Gere (Middletown, CT: Wesleyan University Press, 2003), 94–95.

                                                                                              (40.) Walter Terry, “Dance: Miss Holm and her Fine ‘Kiss Me, Kate’ Choreography,” New York Herald Tribune, Hanya Holm Clippings File, Dance Division, New York Public Library.

                                                                                              (41.) “Copyright by Hanya Holm,” Dance Magazine 39, no. 7 (July 1965): 44.

                                                                                              (43.) Program, Kiss Me, Kate, London, 1951, http://www.sondheimguide.com/porter/kissuk.html (accessed June 30, 2011).

                                                                                              (44.) Although Labanotation was designed to record Western choreography, the Stearnses include a host of Labanotated dances in an appendix to their volume Jazz Dance. For more on issues of notation in dance, see Mark Franko, “Writing for the Body: Notation, Reconstruction, and Reinvention in Dance,” Common Knowledge 17, no. 2 (2011): 321–334, http://muse.jhu.edu/ (accessed June 30, 2011).

                                                                                              (45.) Arthur Todd, “A Brace of Musicals This Season on Broadway,” Dance (March 1949): 28–29, Dance Clipping File, Musical Comedies, Kiss Me, Kate, New York Public Library.

                                                                                              (46.) As reported by the Stearnses, the comedy dance team of Charles Cook and Ernest Brown appeared briefly in Kiss Me, Kate while it was still on Broadway (it ran until July 1951). Stearnses, Jazz Dance, 245. As mentioned above, a pair named the Wallace Brothers took on the roles of specialty dancers for the British production. And in 1953, Honi Coles and Cholly Atkins performed in a summer stock production of the musical in Texas. Cholly Atkins and Jacqui Malone, Class Act: the Jazz Life of Choreographer Cholly Atkins (New York: Columbia University Press, 2001), 97.

                                                                                              (48.) John Martin, “Broadway on Its Toes,” New York Times, January 23, 1949, SM18.

                                                                                              (49.) “Johnny Hudgins Back in Night Club Revue,” Chicago Defender, May 17, 1930, 10. Hudgins continued to tour Europe, South America, Canada, and the U.S. through the 1940s.

                                                                                              (50.) On “invisibilization,” see Brenda Dixon Gottschild, Digging the Africanist Presence in American Performance: Dance and Other Contexts (Westport, CT: Greenwood Press, 1996).