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A Paris Triumph for Artistic Freedom – With Contract Law – Newsletter 6

Charles H. Martin Contract Law and Public Policy

ID-10045403

I. Clifford Brown Joins the Lionel Hampton Band Before
Hampton Orders a Recording Ban for his European Tour
II. Quincy Jones and Clifford Brown Go “Underground” in Paris at Night
III. Fame and Jazz Glory – Hampton Threatens to Fire Brown – The Contract Law Solution
IV. Coda

“You’ve got to keep it going.” – Dizzy Gillespie to Clifford Brown after the death of trumpeter Theodore “Fats” Navarro (1950)

“Don’t take a trumpet player with you. You won’t need one after you hear Clifford Brown.” – Charlie Parker to Art Blakey (1951)

“If any musician of the present day can be compared to [Charlie] Parker, it’s Clifford. I can honestly say that his is the most unblossomed talent of this generation.” – Quincy Jones (1953)

This story describes the meteoric recording debut of Clifford Brown, one of the best, but (today) least known, jazz trumpeters. It also describes how one band mate used a basic U.S. contract law rule to facilitate that debut.

The recordings discussed in this article are available in “The Complete Paris Collection – Clifford Brown” at iTunes. The details of this “Great Escape” in Paris are taken from the book Clifford Brown – The Life and Art of the Legendary Jazz Trumpeter by Nick Catalano.

I. Clifford Brown Joins the Lionel Hampton Band Before Hampton Orders a Recording Ban for His European Tour

In July, 1953, the Lionel Hampton Band’s trumpeter-arranger-pianist, 21-year old Quincy Jones, persuaded 22-year old trumpeter Clifford Brown to join the band for its first European tour. Hampton had made his name with Bennie Goodman playing “swing” jazz. By 1953, the “bebop” style of Charlie Parker and Dizzy Gillespie had supplanted swing in popularity. Hampton hired as many young beboppers as he could to make his band up-to-date for the tour.

Since the 1920s, jazz trumpeters have been divided into two “schools”: the “hot” school of Louis Armstrong, and his followers, and the “cool” school represented by Leon “Bix” Beiderbecke. Like his model, Theodore “Fats” Navarro, Brown joined the vanguard of the “hot” style of trumpet playing.

Lionel Hampton prepared for his European tour by outfitting his musicians in Tyrolean hats, Bermuda shorts and purple jackets, and parading them onto Broadway during their shows at the Bandbox club. Be-bop giants Dizzy Gillespie, Thelonius Monk and Bud Powell, who were playing next door at Birdland, ridiculed the band for their attire. The band members were anxious to escape to Europe after this embarrassment, and because European record producers were eager to record U.S. beboppers. Lionel Hampton and his wife, Gladys, were aware of this European interest.

Jazz debuted in France in World War I, when Lt. James Reese Europe recruited and led the band of the 369th Infantry Regiment “Harlem Hellfighters”. Europe had directed Vernon and Irene Castle’s vaudeville dance act band before the war, popularizing ragtime dances like the Fox Trot, the Turkey Trot, and the Castle Walk. The Hellfighters band paraded through French towns and villages, and ultimately led a post-war victory parade up Fifth Avenue to Harlem. Many young American artists found a welcoming climate in Paris after both World Wars.

Aware of this cultural history (and jealous of the greater attention the younger band members might attract), Lionel and Gladys Hampton issued an edict. No band members would be allowed to record independently in Europe without Hampton’s permission. Ban-breakers would be fired, and they would also be denied their return tickets or fare to the United States.

II. Quincy Jones and Clifford Brown Go “Underground” in Paris at Night

Beginning on September 13, 1953, the band toured through Stockholm, Copenhagen, Amsterdam, Brussels and Zurich. A rift developed between some older band veterans and the younger beboppers. Hampton heard about clandestine recording sessions that Jones, Brown and Art Farmer made while in Stockholm. He ordered his road manager to watch the musicians at night to prevent similar escapades. Some audience members jeered the white members of the band, singer Annie Ross and pianist George Wallington, as being inauthentic jazz musicians. For this reason, Annie Ross was fired (without her return air ticket or fare), and George Wallington quit in solidarity (and because his wife was Annie Ross’s manager).

On Monday, September 28, in Paris, a post-concert party was held for the band at the Ecole Normale de la Music Superieure. On orders from the president of their record company, French Vogue, producers conspired to record Lionel Hampton in a jam session at the party. Hampton and his “spies” were distracted while other company producers recorded Brown, alto saxophonist-arranger George General “Gigi” Gryce (a former student of legendary Paris music teacher Nadia Boulanger), numerous band musicians, and French recruits on the other side of the city as “The Clifford Brown Big Band”.

On Tuesday night, Brown and Gryce recorded clandestinely again with a French rhythm section as “The Clifford Brown Sextet”. Side trips followed the next day to Dusseldorf, Munich, Frankfurt, Hamburg, Berlin, and Mannheim, Germany.

On Wednesday, October 7, the Hampton Band began a five-day concert series at the Theatre de Paris. On Thursday, Brown and Gryce resumed their sextet recordings. This session included the compositions “Minority” and “Salute to the Bandbox”.

On Friday, October 9, the entire jazz rebellion gathered to record big band arrangements by Gryce and Jones. On Saturday, Brown led an octet in variations on a French pop song “Venez Donc Chez Moi”. On Sunday, Brown led a nonet through a recording of his composition “All Weird”.

After a band side trip through smaller French cities, on Thursday afternoon, October 15, Brown recorded with French and U.S. expatriate musicians in a quartet. Besides the Brown-composed blues “Blue and Brown”, this session yielded transcendent versions of Broadway standards “It Might As Well Be Spring” (Rodgers and Hammerstein), “The Song Is You” (Jerome Kern and Oscar Hammerstein), “Come Rain or Come Shine” (Harold Arlen and Johnny Mercer), and “You’re A Lucky Guy” (Saul Chaplin and Sammy Cahn).

III. Fame and Jazz Glory – Hampton Threatens to Fire Brown – The Contract Law Solution

While the Hampton Band toured various European towns in October, the clandestine Paris recordings were released. They received tumultuous acclaim from European jazz critics and fans. Clifford Brown’s photograph was on the cover of magazines and newspapers. In reaction, Lionel Hampton arranged for a telegram to be delivered to Brown on November 10 from the American Federation of Musicians. It forbade him to violate Hampton’s recording ban. Hampton threatened to fire Brown, and to leave him without his return ticket or the fare to return to the U.S.  Jimmy Cleveland, one of Hampton’s trombonists, entered into a shouting match with Hampton over this threat.

At this point, Cleveland taught his boss an indelible lesson in the basics of U.S. contract law. He reminded him that their tour contract specified “what we can and can’t do, depending on the deposit”, but that [Hampton] “didn’t pay the deposit before you left [the U.S.]…So that what you have to do is pay the deposit and then your contract will be binding.”

What Jimmy Cleveland had explained to Lionel Hampton was this. Unlike the law in many “civil law” countries, like France, in the U.S. and many other English-speaking “common law” countries, a contract is not binding merely because it is written and signed. The contract law of all U.S. states requires (with a limited exception) that “consideration” be exchanged in order for the promises in a contract to be binding. “Consideration” is usually defined as a “bargained-for exchange” of something of value. It signifies that the parties intend for their exchanged promises to be enforceable by law. (In civil law countries, a notarization sometimes serves this purpose.)

In the case of the Lionel Hampton Band members, their contract required the bandleader to pay his musicians an amount as an advance payment of their wages (the “deposit”). If this promised consideration was not provided, the contract was voidable by the injured parties (the musicians). See Part A, Chapter 4, c) of my book, Every1’s Guide to Electronic Contracts.

Avoiding the contract doesn’t mean that the party breaching the contract (the bandleader) would not have to pay the musicians for their services. Even if the musicians refused to work further, because their promised advance payment was not made, they could recover the value of their services from the bandleader, either as a remedy for his contract breach, or under the law of “restitution”, which prevents “unjust enrichment” of one party from a benefit provided to it by another. See Part A, Chapter 3 and Chapter 8, f) of Every1’s Guide to Electronic Contracts. (See my related posts on employment “covenants to not compete” at www.charleshmartin.com.)

Jimmy Cleveland backed up his legal argument with a telephone call to his union representative in the U.S., who agreed with his analysis of the situation. Cleveland then told Lionel and Gladys Hampton that his union rep said that if the Hamptons tried to withhold the band members’ return tickets, “the union will send us our tickets and you guys will have to pay for them, and then they’ll sue you.”

IV. Coda

Only the relentless attack of his horn playing, and his irrepressible desire to have his music heard by many people, revealed any aggressiveness in Clifford Brown’s personality. Perhaps, he feared that his time was short to fulfill his talent. Brown had suffered injuries in a car accident in 1950 that required a year of rehabilitation.

Clandestine recording sessions continued in Copenhagen by Jimmy Cleveland and Art Farmer, and finally in Algiers at the end of November, 1953 by Brown and other band rebels and French musicians. Outside of the band’s hotel in Algiers, Hampton’s road manager provoked Clifford Brown into a fight, in which he attacked Brown with a knife. Brown dislocated his shoulder, but he continued to play that night after Quincy Jones put the shoulder back in place.

After the Hampton band returned to the United States, Lionel Hampton fired all of the rebellious band members. Years later, however, Hampton admitted “Brownie set Europe on fire.”

Clifford Brown set jazz on fire until his death in a car accident in June, 1956. Listeners still marvel at his recordings with drummers Max Roach and Art Blakey, and saxophonists Harold Land and Theodore “Sonny” Rollins. Brown’s Paris recordings of 1953 stand apart, however, as one of the most successful gambles for modern artistic freedom.

Image courtesy of Vichaya Kiatying-Angsulee at FreeDigitalPhotos.net

Charles H. MartinA Paris Triumph for Artistic Freedom – With Contract Law – Newsletter 6