Adventures of a Jazz Age Lawyer: Nathan Burkan and the Making of American Popular Culture

Adventures of a Jazz Age Lawyer: Nathan Burkan and the Making of American Popular Culture

by Gary A. Rosen
Adventures of a Jazz Age Lawyer: Nathan Burkan and the Making of American Popular Culture

Adventures of a Jazz Age Lawyer: Nathan Burkan and the Making of American Popular Culture

by Gary A. Rosen

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Adventures of a Jazz Age Lawyer is the lively story of legal giant Nathan Burkan, whose career encapsulated the coming of age of the institutions, archetypes, and attitudes that define American popular culture. With a client list that included Charlie Chaplin, Al Jolson, Frank Costello, Victor Herbert, Mae West, Gloria Morgan Vanderbilt, Arnold Rothstein, and Samuel Goldwyn, Burkan was “New York’s Spotlight Lawyer” for more than three decades. He was one of the principal authors of the epochal Copyright Act of 1909 and the guiding spirit behind the American Society of Composers, Authors, and Publishers (Ascap), which provided the first practical means for songwriters to collect royalties for public performances of their works, revolutionizing the music business and the sound of popular music. While the entertainment world adapted to the disruptive technologies of recorded sound, motion pictures, and broadcasting, Burkan’s groundbreaking work laid the legal foundation for the Great American Songbook and the Golden Age of Hollywood, and it continues to influence popular culture today.

Gary A. Rosen tells stories of dramatic and uproarious courtroom confrontations, scandalous escapades of the rich and famous, and momentous clashes of powerful political, economic, and cultural forces. Out of these conflicts, the United States emerged as the world’s leading exporter of creative energy. Adventures of a Jazz Age Lawyer is an engaging look at the life of Nathan Burkan, a captivating history of entertainment and intellectual property law in the early twentieth century, and a rich source of new discoveries for anyone interested in the spirit of the Jazz Age.

Product Details

ISBN-13: 9780520297371
Publisher: University of California Press
Publication date: 01/15/2020
Edition description: First Edition
Pages: 408
Product dimensions: 6.10(w) x 9.10(h) x 1.30(d)

About the Author

Gary A. Rosen has practiced intellectual property law for more than thirty years and is Adjunct Professor of Law at the Kline School of Law at Drexel University. He is the author of a book on popular music and copyright, Unfair to Genius: The Strange and Litigious Career of Ira B. Arnstein, and he writes a blog on law and popular culture called Jazz Age Lawyer (

Read an Excerpt


Immigrant Passages

Nathan Burkan was eight years old when he left Ia?i, in what is today Romania, bound for New York City with his mother, Tillie, and brothers Joseph and Benjamin. They steamed past the newly dedicated Statue of Liberty aboard the City of Berlin on December 20, 1886, alighting at the Castle Garden immigration station. The head of the Burkan household, Moritz, had already settled on the Lower East Side, where he would operate a succession of luncheonettes and pool rooms in the heart of the red-light district. Although they hailed from an important center of Jewish culture, where they were subjects of the emperor of Austria, in the hierarchy of New York Jewry the Burkans were on the low rung, reviled as "Russian" greenhorns by the tonier and better-established "Germans."

Nathan, the middle son, owed his swift ascent into the professional class to two of the most potent engines of assimilation and upward mobility the city had to offer. After passing a highly competitive entrance examination at age fifteen, he enrolled in tuition-free City College. There, long before the school became a Jewish bastion, he survived a punishing weeding-out process (the attrition rate hovered around 90 percent) and graduated in three years. By then a fourth son, David, had been born and the Burkans had moved to the Jewish "suburb" of Williamsburg, Brooklyn. Nathan, however, remained in Manhattan, where he had found an unlikely second family in Tammany Hall.

To its foes, such as Charles Parkhurst, the pastor of Madison Square Presbyterian Church, Tammany Hall was "not so much a political party as a commercial corporation, organized in the interest of making the most out of its official opportunities." But for New York's growing immigrant population, its primary significance was neither political nor commercial. "Tammany Hall's leaders delivered social services at a time when City Hall and Albany did not," writes journalist Terry Golway. "For generations of immigrants and their children in Manhattan, the face of government was the face of the local Tammany ward heeler. And it was a friendly face."

Tammany was also a vehicle for identifying and advancing the ambitions of able young men who lacked social pedigree. Burkan had been taken under the wing of Martin Engel, the Tammany leader for the downtown Eighth Assembly District — "De Ate," in the local dialect. Engel was the first Jewish district leader in what was historically an Irish political machine. For lads with little to recommend themselves except raw ambition, Engel could find a place in the prostitution and gambling rackets that he protected; for those with ambition and a modicum of scruples, he might arrange a bureaucratic sinecure through Tammany's vast web of patronage. The select few who were ambitious, scrupulous, and blazingly intelligent, such as Nathan Burkan, were groomed for higher callings.

A Jewish boy like Burkan angling for Engel's favor, in Irving Howe's words, "made himself visible in the clubrooms, he peddled chowder tickets, he put placards in store windows. He rooted himself in the neighborhood," generally providing the shoe leather that Tammany's political outreach to newly arrived Jews required. In exchange, Burkan enjoyed such perks as invitations to Engel's sumptuous formal balls at Tammany's headquarters on Union Square, the "Wigwam," where he could mingle with "gorgeously gowned women" amid "the popping of champagne corks, the whirl of laughter, the swish of silk and satin and the crash of the big band playing ragtime two-steps." Tammany Hall taught Burkan how the levers of power worked in New York City and gave the tenement kid his first tantalizing glimpses of how the other half lived. But it was another immigrant of 1886 who would truly open the door for Burkan to enter the world of early twentieth-century New York's upper crust.

Victor Herbert first arrived in New York a few months before the Burkans, in starkly different circumstances — as the trailing spouse of a celebrated diva. Frau Therese Förster-Herbert, a Wagnerian soprano, had been recruited by the Metropolitan Opera to bolster its German repertoire. She joined the fledgling company as one of its prima donnas, while her twenty-seven-year-old husband relinquished a plum job as principal cellist of the Court Orchestra of Stuttgart to take a $60-per-week seat in the Met's string section.

An orchestra pit could not for very long contain Herbert's prodigious musical talents, his ebullient personality, or his Falstaffian appetites. Herbert was a garrulous and witty raconteur, a loyal and generous friend, and by all accounts an extraordinarily jovial and capacious drinking and dining companion. His upbringing and education in Germany endowed him with impeccable musical credentials along with the cosmopolitan self-confidence and continental bearing of a man of the world. With "his robust charm, his ready Irish ribaldry, and his enthusiasm which equally embraced his art and his fellows," biographer Neil Gould wrote, Herbert "created a world centered on the lodestone of his magnetic personality."

A leisurely performance and rehearsal schedule at the opera house allowed Herbert to pursue solo and chamber engagements, to teach at the National Conservatory — where Antonín Dvorák was the director — and still have plenty of time left to kill in New York's beer gardens and cafes, where he mixed easily with the city's cultural elite. He soon made the helpful acquaintance of another newcomer to New York, James Gibbons Huneker, a young music and literary critic on the rise. Huneker was every bit Herbert's equal in gluttony and carousal, and they formed a lifelong bond. Their social circle included the three conductors who dominated orchestral music in America at the close of the nineteenth century, Theodore Thomas, Anton Seidl, and Walter Damrosch, for each of whom Herbert became cello soloist of choice. When Seidl conducted the world premiere of Dvorák's New World Symphony in 1893, Herbert was the featured cellist, as he had been when Thomas gave the American premiere of the Brahms Double Concerto for Violin and Cello in 1889. Contemporary listeners invariably remarked on the precision of Herbert's technique, the purity of his tone, and his ability to coax the finest shades of emotion from his instrument.

Herbert had begun composing for cello and orchestra while still in Germany, and not long after he arrived in the United States some of these youthful works received their U.S. premieres under Damrosch and Thomas. In 1894, he gave the world premiere of his more mature Cello Concerto No. 2 with the New York Philharmonic. Dvorák was in attendance and was inspired to compose his own cello concerto, a repertory staple ever since.

Young Herbert, audiences and critics agreed, was a world-class artist on the cusp of a magnificent career, destined to be — in the widely quoted but wildly premature appraisal of his Pilsner-swilling buddy James Huneker — the "Irish Wagner."

The next stepping stone for Herbert in the ordinary course of events would have been leading a symphony orchestra of his own. Despite his compelling résumé (he had also served as assistant conductor to Thomas and Seidl and conducted the prestigious Worcester Festival orchestra), no such opportunities were on the horizon. The number of "permanent" symphony orchestras in the United States — those with an institutional existence, dependable funding, and a stable roster of musicians — could be counted on the fingers of one hand.

As he reached the age of thirty-five, Herbert's rapid rise to the top of the classical music world had stalled, even as his financial imperatives were mounting. His ever more epicurean lifestyle collided with a severe national recession, the pinch tightened further by his wife's decision to retire from the operatic stage and devote herself to raising the couple's two American-born children, managing Victor's career, and presiding over their bustling, servant-filled residence and salon on Park Avenue.

Though short on symphony orchestras, the United States at the fin de siècle was awash with military-style brass bands. In 1893, a vacancy opened at the helm of one of the best, the 22nd Regiment Band of New York, better known as "Gilmore's Band." The group was celebrated for both its disciplined musicianship and its raucous showmanship (its take on Verdi's "Anvil Chorus," replete with dozens of anvils and cannon fire, was legendary), but it was struggling after the sudden death of its leader, Patrick Gilmore. As key personnel were defecting to the newly formed rival band of John Philip Sousa, Herbert assumed Gilmore's mantle, trading in the evening dress of a symphony orchestra player for the fitted tunic and regalia of a tin-pot militia commandant.

Herbert embraced the lowbrow conventions of his new role with grace, even gusto, programming crowd-pleasing light classics, charging popular prices, and serving with boyish glee as drum major when the ensemble marched to its engagements. Herbert quickly revitalized Gilmore's Band musically and commercially, while smoothing over some of its excesses. "It was as Gilmore's successor," writes Neil Gould, "that Herbert first achieved the status of a musical superstar."

By 1894, Herbert was reported to be making more money than any other person in America whose vocation was music, but leading Gilmore's Band neither exhausted his energies nor fully satisfied his pecuniary needs. Just a few weeks after the successful premiere of his second cello concerto, Herbert's compositional career veered onto an entirely new course. He entered into a contract to provide a score for an operetta to be produced on Broadway and taken on tour by the leading American light opera company of the day, the Bostonians.

Herbert's show, Prince Ananias, was a flop, burdened by "an inept and inane libretto that clouded appreciation of the music's worth," writes Gerald Bordman. ("This," he adds dryly, "was to be the case with many Herbert shows.") But no one doubted that Herbert had the right stuff. "When he knows the operetta field better," one critic wrote, "he will make his melodic framework smaller and stick to the elementary song form which is easily within the grasp of operetta audiences."

It soon became clear that in light opera, especially of the comic-romantic variety, Herbert had found his métier. Over the next four years and five shows, Herbert honed the tricks of his new trade, learning how "not to write over the heads of his audience." His breakthrough as a theatrical composer came in 1898 with The Fortune Teller, which went on to be one of Herbert's greatest successes, its "Gypsy Love Song" his first stand-alone hit song.

Both the show and the song benefited from Herbert's new affiliation with an upstart music publisher, M. Witmark & Sons. Purveyors of sentimental waltzes, two-steps, and "coon songs," the Witmarks had just opened a new office on Manhattan's West 28th Street, planting the first flag on the block that would soon be known as Tin Pan Alley. The Witmarks gave Herbert the promotional razzle-dazzle needed to put his theatrical scores over to the masses who bought sheet music for their parlor pianos. Herbert gave the Witmarks a touch of class that set the firm apart from the rest of the Tin Pan Alley crowd. Together, Herbert and the Witmarks would raise to new heights the art of "turning cheap sheets of music paper into thousand-dollar bills."

Herbert found no shortage of kindred spirits on Broadway. In 1896, he was elected to membership in the Lambs Club, a louche, preening fraternity of actors, playwrights, and other theatrical personages and hangers-on. The Lambs, Theodore Dreiser wrote, did not "lay claim to any extraordinary purposes or plans or even an elevating influence." Their principal activity in those years was entertaining each other with "Gambols" performed in their private theater. "Current plays, monologues and specialties were travestied (in many cases by professionals who burlesqued their own parts)," an internal club history states, adding with characteristic self-regard, "the Lambs' Theater became the center of the wit and humor of New York Bohemia." Once each year, as a fundraiser to address the club's chronic indebtedness, the Lambs would rent out a Broadway-class theater to present a Gambol open to the ticket-buying public.

Not long after Herbert joined, when the club was in especially dire financial straits, the Lambs decided to take an "All-Star Gambol" on a multicity tour. Herbert was the musical director for this production, which combined blackface minstrelsy with sophomoric sketches that both parodied and promoted the members' stage hits. At each stop on the tour, the entire troupe, led by Herbert and his brass band, paraded from the train station to the theater clad in buckled top hats and double-breasted linen frocks with ruffled collars, the spectacle on the whole suggesting a Thanksgiving pageant put on by Leprechauns. Even for a public accustomed to the sight of Victor Herbert costumed in cheesy military decorations, this deliberately buffoonish getup was an arresting image to say the least.

Victor Herbert now inhabited the dissolute realm of popular entertainment with the same charisma he had so recently brought to the rarefied world of "longhair" high culture. Voluntarily and without reservation, he had taken a path previously reserved for those who could not make the grade as "serious" artists. He would soon have an opportunity to test whether that was a path of no return.

Nathan Burkan graduated from New York University Law School in 1899, after completing a two-year course of study offered at the time to college graduates. Still several months short of his twenty-first birthday, he was too young to sit for the state bar examination that year. In the interim, he took a job as a stenographer with lawyer Julius Lehmann.

Lehmann had a busy office on the site of the present-day Woolworth Tower, near the state and federal courts in which he appeared regularly. His practice was typical of the mix of legal work that was relegated to the small clique of Jewish lawyers in New York City's highly stratified bar at the turn of the twentieth century — mostly low-status matters such as criminal and civil litigation, bankruptcy, and matrimonial law.

Lehmann raised his profile in the legal community with newsworthy work on behalf of prominent artists, including some of Victor Herbert's earliest musical associates. He represented Walter Damrosch in multiple cases arising out of the messy affairs of his short-lived German Opera Company. He represented the flamboyant Jewish violinist Nahan Franko (Herbert's concertmaster at the Metropolitan Opera) in a series of tabloid-friendly disputes with his gentile in-laws — brewery magnate Jacob Ruppert and family — which culminated in a grisly fight over possession of the corpse of the young Ruppert heiress who had eloped with Franko shortly before she died of typhoid fever. Victor Herbert, as he rose to the top ranks of New York's musical world, quite naturally hired Lehmann to look after his legal interests.

It was, as far as can be determined, sheer fortuity that Burkan found himself apprenticed to a lawyer with a theatrical clientele. Burkan was not himself artistically inclined in any way, nor does it appear that he possessed any taste for music or theater beyond that offered in the crudest variety and burlesque halls. Lehmann, however, was a solid Tammany man, active in Lower Manhattan's Jefferson Democratic Club. It was almost certainly this political connection that led to Burkan's situation with Lehmann, not some affinity, conscious or subconscious, for what would become his life's work.

Upon being admitted to the bar in 1900, Burkan threw himself into all aspects of Lehmann's practice, the glamorous and the mundane, with equal diligence. Burkan had been a licensed attorney-at-law less than a year when Victor Herbert walked into Lehmann's office with the case that would launch a brilliant legal career.


The Pittsburgh Troubles

The events that brought the disparate immigrant paths of Nathan Burkan and Victor Herbert into an unlikely and fateful convergence began in 1898, when Herbert embarked on a new phase of his career in Pittsburgh, Pennsylvania.

A few years earlier, flush with the steel fortunes of Carnegie and Frick, Pittsburgh had become the fourth American city to join the permanent symphony orchestra movement. After three artistically desultory and fiscally insolvent years under the leadership of a local organist, the Pittsburgh Symphony Orchestra's financial guarantors demanded a change. Victor Herbert was offered the job of conductor, it appearing that his ambitions and financial circumstances dovetailed perfectly with the orchestra's. "My operas and other work have made me independent financially," Herbert told the press. "It was not money that brought me here. It is my ambition to make the orchestra second to none in the world."


Excerpted from "Adventures of a Jazz Age Lawyer"
by .
Copyright © 2020 Gary A. Rosen.
Excerpted by permission of UNIVERSITY OF CALIFORNIA PRESS.
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Table of Contents

Prologue: Nathan the Wise

1. Immigrant Passages
2. The Pittsburgh Troubles
3. To Victor Belong the Spoils

4. Tin Pan Alley
5. Canned Music
6. Mr. Burkan Goes to Washington
7. The Two-Cent Solution

8. Entr’acte
9. The Lone Star
10. Charlie in the Harem
11. The Price of a Good Time

12. The Gospel of Performing Rights
13. Shanley’s Cabaret Extraordinaire
14. The Music Tax
15. The Ether Toy

16. The Silent Screen
17. The Jazz Singer

18. Rumrunners
19. The Bindlestiff
20. New York’s Spotlight Lawyer

21. Love’s Undertaker
22. Nightstick Censorship
23. The Big Bankroll and the Little Flower

24. New Deal Days
25. Gloria
26. Blue Bloods Meet the Hoi Polloi
27. Twilight of the Music Trust
28. Exeunt

Selected Bibliography
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