Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century

by Alex Sayf Cummings

  The situation was particularly embarrassing because the record companies had just started making noise about piracy or “disk-legging.” Variety reported that the Harry Fox Agency, representative of song publishers, had begun investigating bootleggers at the behest of the labels in August 1951. The entertainment industry rag reported that the records were being wholesaled in batches of 500 at 30 cents a piece.90 The number of records accords with the accounts of other pirates, who spoke of a range of up to 1,000 copies. RCA had actually become one of the loudest critics of piracy in the months prior to the Jolly Roger revelation. The company announced in September that it would begin retaliating against pirates. “Up until recently, the bootleggers had more or less confined themselves to the jazz field, where they sold dubs of the out-of-print Victor collector items,” Variety said. “In recent months, however, several bootleg firms have been distributing straight copies of current Victor hits under a variety of labels.”91 Little did the company’s leaders realize that their own employees were helping the bootleggers raid the Victor catalog, using their own facilities. As the Record Changer deadpanned, “One high RCA spokesman had heatedly informed us that they would ‘seek injunctions and damages, prosecute, throw into jail and put out of business’ not only the operators of bootleg labels but also those processing and pressing plants that serve them (apparently considering the latter as guilty as the former).”92

  The bootleggers’ chutzpah had pushed their activities into the open. Dante Bollettino, a young jazz enthusiast, had run Jolly Roger’s parent company, Paradox Industries, for three years prior to his run-in with the law in 1951. Prior to Jolly Roger, his Pax label had released elegant reissues of musicians such as Cripple Clarence Lofton, the Chicago boogie woogie pioneer who influenced the likes of Meade Lux Lewis and Jimmy Yancey.93 The back covers of Pax records featured detailed liner notes by Bollettino and jazz writers such as George Hoefer, which described the historical significance of the music and, in many cases, told of when and where the performances were recorded.94 The label, based in Union City, New Jersey, promised “Records for the connoisseur,” compiling anthologies like New Orleans Stylings and Americans Abroad: Jazztime in Paris, which culled the best of lesser-known artists.95

  Jolly Roger, in contrast, dared to go further. There was the swagger of the name, and the fact that Bollettino had marched right into enemy territory to have his records made. “They [RCA] apparently did not react at all when confronted with a label that every schoolboy would know meant, by definition, ‘a pirate flag,’” marveled the editors of the Record Changer. “Record bootlegging is just as often referred to as record piracy … catch on, Victor?”96 The label also reproduced fare that was not quite as obscure as Pax’s. A Jolly Roger catalog from the early 1950s lists one Frank Sinatra, two Bessie Smiths, and seven different Louis Armstrong records.97 While some of the performances were out-of-print, names like Armstrong and Sinatra were bound to raise some eyebrows eventually. Jolly Roger records featured the same style of starkly colorful and iconic covers as Pax records had, but they lacked the liner notes and other identifying features. Their back covers were blank.98 Perhaps Bollettino realized that the Jolly Roger venture might elicit more attention and wanted to minimize his own mark on the records.

  In any case, he had gone too far. Armstrong and Columbia sued Paradox in February 1952, and the story made headlines in Business Week and Newsweek. Seeking an injunction, the plaintiffs cited the Metropolitan decision of two years prior.99 “This marked the record industry’s first major reaction to the bootlegging problem,” Business Week noted.100 Facing the legal might of the music business, Bollettino decided to settle out of court. “My lawyer insisted that we had a good case and could win, but I knew the record companies would feel they couldn’t afford to lose and would throw in everything they had,” he reflected in 1970, sitting in a fabric shop he had opened in Greenwich Village. “I was only twenty-three and didn’t have the money for a long expensive court case … But afterwards the big companies began to reissue more jazz records, so maybe I accomplished something after all.”101 For Bollettino, the bigger goal was to ensure that at least some of the music he copied would continue to be available to the public.

  Perhaps Bollettino and his fellow pirates simply drew too much attention. They proved the viability of a market that the big record labels had left fallow and, in fact, relinquished to collectors for years. “Disk bootleggers, who have been coining considerable profit from their operation of selling dubs of cut-out jazz sides, are being rapidly squeezed out of business,” Variety declared, as the major labels started their own reissue programs.102 However, Bollettino shot back at the industry. “Columbia and the ‘majors’ have failed to make or keep jazz records available to the public,” he told the press. “Their few reissue programs have started out with a big hullabaloo and fizzled out simply because it is not profitable to try to sell a few thousand copies of a record … Only a small firm with low overhead can profitably reissue such records.”103

  Though torn, the jazz writers echoed this criticism of the major labels, saying that the companies had failed to honor their responsibilities as custodians of culture. Some of the majors had tried reissues, but “usually it only served to emphasize the gap between ‘their’ standards and ‘ours,’” the editors of Record Changer opined. “There is much more to jazz than Armstrong and Goodman and a scattering of sides by a few other people, although obviously you can come closer to breaking even or showing a profit with those names.”104 An obscure Bix Beiderbecke record was not worth the time and money of a promotional machine that was accustomed to manufacturing records en masse and hyping them nationwide. Regardless, Record Changer’s publisher Bill Grauer, the jazz writer John Hammond, and the bootlegger Sam Meltzer all claimed to have been rebuffed when they sought to reissue old recordings legally by obtaining licenses from the major labels. In doing so, these critics maintained, the companies denied the public a portion of its heritage. “It involves a moral and artistic burden that they automatically took on when they first decided to make their money in part by the commercial recording and distribution of material that ‘belongs’ (by virtue of its cultural significance) to the people as a whole,” a Record Changer editorial argued.105 Elsewhere, the editors wrote, “We are not so naïve as to believe that all, or even many, bootleggers are motivated solely, or even partly, by noble impulses.” Still, their activities served the public when scarce music was preserved and perpetuated.106

  Numerous bootleggers scrambled to get out of the business after the public demise of Jolly Roger, but piracy persisted. In some instances organized crime sought to take advantage of the ephemeral popularity of a hit single by dumping its own copies of 45s on the market. In 1960 Robert Arkin of the Bronx and Milton Richman of Queens were charged with copying Cameo singles of rock and roller Bobby Rydell’s “Ding-A-ling” and “Wild One.” Operating out of Fort Lee, New Jersey, their Bonus Platta-Pak company worked with an accomplice in Hollywood named Brad Atwood.107 In October seven men were arrested in Los Angeles, including Atwood. “More than half the shelf stock in [Los Angeles] county of one particular recording were bogus reproductions,” the Los Angeles Times reported. “Undercover agents wormed their way into the ring and were actually helping load records purchased by two other agents of the district attorney when yesterday’s raids were made. [District Attorney] McKesson said the bootleggers were making their reproductions using facilities of legitimate record manufacturing firms at night and on weekends.”108

  Figure 2.5 Balt Yanez of the Los Angeles District Attorney’s Office examines boxes of bootleg records confiscated in an elaborate sting against a pirate network that linked North Hollywood to Bergen County, New Jersey. Source: “Fake Record Ring Broken; 7 Men Held,” Los Angeles Times, October 3, 1960, 2–3. Reprinted by permission of Los Angeles Times.

  More persistent were the small entrepreneurs who copied records that the major labels had no interest in reissuing. In the 1960s, many bootlegs ent
ered the United States from abroad. Pirate Records of Sweden made available the likes of Barbecue Bob and Blind Lemon Jefferson, blues singers of the 1920s and 1930s. The label pressed records in batches of 100 and requested correspondence in English or French.109 Swaggie, based in Melbourne, Australia, reprinted records from as far back as 1917, including well-known performers like Sidney Bechet and lesser-known acts from the 1920s, such as Tampa Red’s Hokum Jug Band. The Swaggie catalog plainly listed which labels had originally released the material, and label head Nevill L. Sherburn wherever possible pursued licensing agreements with artists and record companies to reissue their work.110 In 1966, the manager of Fats Waller’s estate even asked Steve Sholes at RCA Victor if the label would work with Swaggie in releasing some lost recordings Waller had made while working for Victor:

  Can something be arranged for Swaggie on the V Discs made by Fats on that memorable session, when Old Granddad flowed fluently … as Fats would remark … and all concerned had a ball.… “Eat, drink and be merry, for tomorrow we die.” That was Fats’ motto thruout his short lifetime and that date on September 23, 1943 … turned out to be “fini” at Victor. I sincerely hope that something can be arranged [to] get these records on the market, for they contain numbers from the musical “Early to Bed” … Fats’ Broadway musical which was never recorded because of the musicians strike.111

  Ed Kirkeby’s request did not find a sympathetic ear. The letter ended up in the files of RCA’s Brad McCuen, who since 1964 had investigated labels such as Folkways for allegedly reissuing Victor’s old blues, folk, and jazz records.112 During his research, McCuen learned of the Jolly Roger incident and the surge of piracy in the early 1950s. Writing to Sholes, he compared the new wave of copiers to the Blue Aces and Jazz Panoramas of old. “There are now at least a dozen labels openly offering for sale our masters without permission,” McCuen wrote. “Included are the labels Palm Club, Swaggie, OFC, Historic Jazz, Limited Editions, Pirate (Sweden), etc. I feel we should discuss making a stand against these illegal labels if for no other reason than to protect our Vintage futures.”113 McCuen’s goal was to protect his employers’ long-term corporate interest in securing exclusive control of their recordings, even if the company did not necessarily intend to produce and sell them. The prevalence of firms like Swaggie indicated that the desire for old records had not slackened, as entrepreneurs moved to fulfill the demand formerly met by the likes of Hot Record Society and Jolly Roger.

  Table 2.1 RCA’s List of Suspected Pirate Labels in the Mid-1960s

  Name

  Details

  1. Swaggie Records

  Box 125, South Yarra, Melbourne Australia. Probable owner: Nevill L. Sherburn

  2. RFW Records

  Box 746, San Fernando, California 91340. Fats Waller

  3. Palm Club Records

  V-Discs, E.T.S

  4. Testament Records

  Library of Congress

  5. RBF Records

  Subsidiary of Folkways Records

  6. Historical Jazz

  Box 4204, Bergen Station, Jersey City, New Jersey 07304

  7. Roy Morser

  Box 225, Gracie Station, NYC 10028. Duplicators.

  8. Pirate Records

  Box 11063, Stockholm, 11, Sweden

  9. Old Timey Records

  Box 5073, Berkeley, California. Subsidiary of Arhoolie Records. Owner: Chris Strachwitz. Specialized in country & western

  10. Blues Classics Records

  Blues and jug bands

  11. Origin Records

  Blues

  12. County Records

  Country & western

  13. Max Abrams

  1108 Celis Street, San Fernando, California. Duplicator

  14. OFC Records

  Probably European import

  15. Folkways Records

  165 W. 46 Street, NY, NY 10036. Owner: Moe Asch. Jazz and folk.

  16. Melodeon Records

  Spottswood Music Company, 3323 14 Street N.E. Washington, DC, 20017. Owner: Richard Spottswood

  17. FDC Records

  Probably of European origin. Jazz

  18. Jazz Panorama

  19. Jazz Society Records

  Sold through John Norris, Box 87, Toronto 6, Ontario, Canada.

  Source: “Labels,” Brad McCuen Collection—Piracy 1969, 97-023, box 18, folder 9, MTSUCPM.

  The ultimate question remained: who should be the stewards of the ever-growing legacy of recorded music? Should the companies that originally recorded and marketed the music decide whether it would remain available to the public, beyond the worn-out relics hoarded by collectors? Should music lovers be able to keep copies of old recordings in circulation despite the industry’s disinterest or active opposition? Given the up-front costs involved in recording, advertising, and distributing an original recording, large firms such as RCA Victor could maximize their profits by selling large numbers of a few popular releases, rather than offering the public a wide range of records that each sold fewer copies.114 A reissue of an obscure Sidney Bechet side, catering to perhaps a few hundred avid collectors, seemed a waste of RCA’s sales staff and productive capacity.

  Since the means of production—record-pressing plants—remained concentrated in the hands of a few major labels in the 1950s, those firms could exercise a wide degree of discretion about what music was available to the public. The American music industry of the 1940s and early 1950s was highly consolidated in a few firms, who sought to vertically integrate production and to deter competitors from entering the market.115 And as legal scholar James Boyle has stressed, the vast majority of works go out of print in a few years. In many cases the actual owner of the work is difficult to determine (so-called “orphan works”), and even when the owners can be identified, they hold the power to decide whether to reproduce it or license the rights. Given these conditions, collectors and bootleggers alike feared that countless items of recorded music would become scarce and inaccessible as they receded into the past.116

  The Jolly Roger case shows that entrepreneurs who wanted to market recordings to smaller, niche markets had to turn to the custom-pressing services of companies like RCA to have their records made, drawing on the infrastructure of the major labels to copy records that those firms no longer had an interest in selling. The persistence of outfits such as Swaggie and Pirate Records suggests that the mainstream industry’s efforts to satisfy the demand for such music, once they recognized it, with reissue programs failed to provide the full range of out-of-print recordings desired by fans and collectors. Confusion about the ownership of recorded music left unclear who should decide whether a record would remain in circulation, and the Jolly Roger flap marked the beginning of the industry’s effort to protect a newly understood value in recorded sound from the encroachment of unauthorized reproduction—a campaign that would bear fruit with the provision of copyright for sound recordings in 1971. Until then, the labels sought to deter anyone from copying the records that they no longer wanted to sell, with the aim of keeping such music unavailable until the established firms saw fit to reissue it.

  This struggle only occurred because bootlegging showed the labels that their back catalog might be worth something—that recorded music retained meaning and significance in which the public had an interest long after it stopped being worthwhile for companies to keep in circulation. Collectors insisted that there was something uniquely valuable about each record, each variation, which copyright law had treated as incidental to the essence of the work. It was collecting that led to bootlegging, and bootlegging that led to legal suppression and, eventually, to an expansion of copyright restrictions that would make collecting more difficult. The primacy of performance and interpretation in jazz helped prompt this reconsideration of copyright. Some elements of creativity could not be captured in musical notation—the characteristic playing of an instrument with its own timbre, for instance—although American copyright law did not recognize them until the early 1970s. The wave of succes
sful anti-bootlegging litigation in the 1950s followed a spike in the popularity of jazz bootlegs that jolted the record companies into action. But the industry’s victory over Jolly Roger was short-lived. In the 1950s and 1960s, new media such as magnetic tape made recording cheaper and easier than before, and lovers of opera and other less-than-profitable genres argued that their copying served a wholesome purpose by capturing and preserving music that would otherwise sink in the commercial marketplace. And in the late 1960s, not long after McCuen hunted the copiers of folk and jazz, bootleggers turned to rock and roll, provoking a bigger legal battle than seen in the skirmishes of the 1950s.

  || 3 ||

  Piracy and the Rise of New Media

  The corrupt police captain Hank Quinlan sat in the parlor of his old flame Tanya, after a drunken bender took him south of the Rio Grande. Bleary-eyed and exhausted, Quinlan was comforted by the tinny sound of an antique player piano. “The customers go for it,” Tanya said. “It’s so old, it’s new.” Outside, the Mexican official Miguel Vargas waited with a tape recorder, hoping to capture evidence of Quinlan’s dishonesty that could clear the good name of Vargas’s wife, who had been framed for murder. Throughout the climactic scenes of Orson Welles’s 1958 film Touch of Evil, Vargas lurks in the shadows, following close behind the police chief and his erstwhile sidekick Menzies, who wears a wire. Meanwhile, the staccato ragtime of the player piano plods along in the background.1

  The juxtaposition of an old medium—one of the earliest ways of mechanizing music—and the new technology of the magnetic tape recorder paralleled the difference between Vargas and Quinlan. The former was a young, progressive law enforcement official, while the latter was a bloated, racist “good old boy” who ruled the American side of the border as his own personal fiefdom. In due time, the old guard was done in by the cleverness and diligence of the new. Touch of Evil reflects the emergence of new media in the 1950s, a decade when the use of magnetic recording spread beyond the military and industry and into the consumer marketplace in the United States. The transformation of this long-dormant technology into a medium that was accessible to large numbers of people challenged property rights by enabling new ways of using sound that had not been known to the jazz copiers of the 1930s and 1940s.