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

by Alex Sayf Cummings

  To understand the rise of classical bootlegging in the 1950s requires understanding why people felt the need to record. Some copycats held to the documentary ethos of recording and looked at their work as a kind of craft. Like the high-fidelity hobbyists who used many of the same products, these bootleggers aimed to capture an experience in the clearest way, though they may have emphasized the music itself more than some of the technology-obsessed audiophiles did. One opera pirate said that he and his partner bootlegged “as a labor of love. We work slowly and produce few albums. Quality is what we strive for, and it’s often hard to achieve with some of these old tapes. We do what we can to correct fluctuations of pitch and drops in volume, but we never doctor a sour note if the singer sang it that way. We want to document what really happened.”72 A man who went by the name Roland Ernest released numerous bootlegs of performances at Carnegie Hall, including what Clinton Heylin called “the most famous opera bootleg of them all,” the breakthrough 1965 performance of Spanish soprano Monserrat Cabellé in Lucrezia Borgia. RCA claimed that Ernest sold 30,000 copies of the performance, which he denied. Some of his releases were so esoteric they sold fewer than 100 copies apiece, and Ernest had to drive a cab to support his activities.73

  Akin to the pirates of contemporary opera were the “private labels,” which specialized in out-of-print and nearly extinct recordings dating back to the earliest years of the music industry. Some items were recorded from cylinders and deteriorated discs that had nearly stopped functioning. Borrowing from collectors, privateers used acetate air checks—temporary discs produced by radio networks—to make new copies of music from the 1930s and 1940s. These labels often sold their goods through mail-order catalogs that were distributed to members of a small circle, and they managed to keep such a low profile that record companies rarely took legal action against them.74

  Figure 3.2 This detail from a Boris Rose catalog features mostly live recordings of jazz performers, released on “labels” such as Beppo and Big Molly. Source: Reprinted by permission of Elaine Rose.

  Boris Rose, for example, offered everything from antique ragtime to comedy records, as well as movie soundtracks, broadcasts of Charlie Parker and Cannonball Adderley, and nostalgia items from the heyday of radio.75 In this fashion, Rose invented a different label for almost every record he released, starting such companies as Bamboo Industries—Records for Most Jazz Ears, Jung Cat Records, Kasha King, and Lee Bee Discs. He signed the liner notes with pseudonyms like “Kentwood P. Axtor” and “Astyanax Schwartz.” Some of his records, preserved at the Institute of Jazz Studies in Newark, New Jersey, featured homemade Xeroxed covers, while others possessed plain white sleeves much like the Great White Wonder bootleg of Bob Dylan that would draw so much attention in 1969. In effect, obscure operators like Rose maintained their own private versions of the government archive that Goodfriend had proposed. Rose was able to maintain such a vast catalog because he only copied discs on demand, when someone sent him a nominal sum ($1.50 or $2.00) to cover the cost of production.76

  “I’m sure he did make money at times because he reinvested it in the music,” Rose’s daughter Elaine recalls. “He never let money really sit in the bank.” She credits his experience of poverty during the Depression for his compulsive desire to collect—stockpile might be a better word—almost anything, from records to exercise bikes to stuffed animals. Rose also possessed the same zeal for documentation that gripped Gould, Goodfriend, and others. With the advent of the video home system (VHS) tape in the 1970s, he filled countless boxes with recordings of television programs. “Because so many people don’t save anything, in that era my father was like ‘well, we have to save this—it’s going to be good for history,’” Elaine says. “He was always into preserving things for knowledge. And he was right in that sense. He was afraid that no one would be saving this.”77

  Figure 3.3 A CD compilation of recordings by professional farter Joseph Pujol, also known as Le Pétomane, reveals Boris Rose’s wide ranging taste as well as his penchant for rescuing music from obscurity. On the back of the sleeve, the London Taxi News is quoted as asking, “How could anyone seriously dislike an artiste who could blow out a candle from a distance of a foot, or the generation who applauded him?” Source: Reprinted by permission of Elaine Rose.

  Although Rose and other privateers mostly evaded litigation, the legal status of sound recordings remained in flux throughout the 1950s and into the early 1960s. The 1955 decision in Capitol Records v. Mercury forced the Second Circuit Appeals court to revisit the questions raised earlier by RCA v. Whiteman (1940) and Metropolitan v. Wagner-Nichols (1950).78 The convoluted case involved recordings by the German company Telefunken, which had licensed Mercury to sell certain records in Czechoslovakia but gave Capitol the rights to sell in the United States. Capitol wanted to prevent Mercury from issuing the records stateside, while Mercury insisted it was free to sell the records; the recordings were not copyrightable under federal law, and Capitol had given away any possible common law copyright when the works were pressed and sold to the public. (Creators could retain a common law copyright for various kinds of work as long as they were unpublished.) The compositions involved were in the public domain, meaning the question was whether Capitol retained any kind of property right in the recordings themselves.79

  The court struggled with the implications for copyright law, but still came down on the side of Capitol. In his opinion, Judge Edward Dimock determined that sound recordings were not copyrightable, pointing out that congressional committee reports from the Copyright Act of 1909 showed that Congress did not intend “to extend the right of copyright to the mechanical reproductions themselves.”80 He also observed that Whiteman reinforced this principle, but in the next breath said that the 1940 precedent was not, in fact, the law of New York. He instead raised Metropolitan as an example, and held that copying and selling someone else’s performances without permission was illegal. Why? Because permitting that behavior “could not have been the intention of the New York courts.”81 Curiously, the Second Circuit Appeals Court concluded that manufacturing and selling records to the public did not constitute “publication,” allowing Capitol to hold a common law copyright for the works even though Congress and previous courts had chosen not to protect sound recordings.82

  In 1955, it may have seemed that American law had decisively swerved toward granting protection to works that were not technically covered by federal copyright law, but Americans continued to struggle over how much and what kinds of copying were fair. Two Supreme Court rulings in 1964 threw the whole debate into doubt by endorsing the notion that people were free to exploit any works that were eligible neither for copyright nor patent. The cases, Sears, Roebuck & Co. v. Stiffel and Compco Corp. v. Day-Brite Lighting, both dealt with lighting fixtures.83 Although few would see a direct relationship between a lamp and a sound recording, these decisions directly bore upon how works outside the scope of copyright law ought to be regulated. Lighting designs did not pass the test of originality to qualify for patent, nor did they fall into any of the categories defined in the copyright act, which dealt with books, pictures, musical compositions, and other creative works. Thus, the distinctive grooves on a lighting fixture were no more protected by federal law than the grooves on a particular recording of the song “Hound Dog.” The Supreme Court concluded in both Sears and Compco that state rulings in favor of a plaintiff who complained that a competitor copied its fixture design strayed too far into federal territory. If Congress chose not to protect a certain kind of creative object, the court concluded, then lawmakers probably meant to leave it open to free use.

  In other words, copyright law by any other name was still the province of federal power. The reasoning derived from a belief in the supremacy of national authority, as well as a bent for leaving as many ideas and expressions in the public domain as possible. The liberal Supreme Court of Earl Warren belonged to an American tradition that distrusted monopolies, as did Learned Hand and Progressi
ve lawmakers in earlier years. Inventing new rights for any kind of creativity, whether the design of a lamp or a musical performance, could be anticompetitive, limiting how others could express themselves and compete in the marketplace.84 As with the unnamed but numerous freedoms covered by the Ninth Amendment to the Constitution, citizens enjoyed a “federal right to copy” all things not specifically limited.85 The justices of the Supreme Court affirmed this right just as the Beatles were first invading America and changes in the technology of magnetic recording were about to unleash copying on a much wider scale.

  Jets, Cars, and Cassettes

  In the 1950s, magnetic tape was a high-dollar hobby and a collector’s craft, as well as a technology that served practical ends in business and industry. In the 1960s it became a vehicle of popular amusement, carried into rock concerts in jean pockets and humming from a Thunderbird dashboard. The high-fidelity enthusiasts were the early adopters of the technology, and their willingness to spend large sums on a prestigious diversion enabled corporations to cultivate magnetic recording as a consumer good, albeit an upmarket one. The medium followed the path of television, which started out as an expensive and bulky product and became ever smaller and cheaper as it evolved.

  The invention of a workable transistor in 1947 dovetailed with simultaneous leaps in the development of television and sound recording after World War II. The device was yet another spin-off from wartime research, derived from studies of the conductive properties of silicon and germanium at Bell Telephone Laboratories. Bell scientists discovered that a combination of germanium, plastic, and gold foil could greatly augment an electric current.86 Engineers replaced large vacuum tubes with tiny transistors that amplified currents enough to power complex electronic devices, allowing the behemoth models of early television sets to shrink and radios to fit into a pocket. Manufacturers could also produce the components in large quantities and achieve immense economies of scale, reducing the cost of electronic goods. Masaru Ibuka, a founder of the Japanese electronics giant Sony, paid $25,000 for permission to use the transistor when he learned during a visit to the United States in 1952 that Bell was licensing the patent. Three years later, Sony unveiled one of the first low-price “pocket radios,” though the company had to make shirts with extra-large pockets for its salesmen to wear when pushing the product.87

  As Dana Andrews noted, a massive battery of speakers, tape heads, and turntables could overpower the living room of any hi-fi fetishist with money to burn. The pocket radio held out a prospect of cheapness and smallness that could help the consumer who had less space or money make use of magnetic tape technology. In the late 1950s, several companies tried shrinking the tape reel and putting it into a plastic box. RCA Victor developed a four-track tape cartridge in 1958, with little success.88 In a similar effort to make recorded music more mobile, Chrysler had tried in 1956 and 1960 to install a disc record player under the dashboard of its cars. Understandably, few buyers chose the option, which could be cumbersome and even dangerous to operate on the road. Later innovators sought ways to make tape cartridges easy for a motorist to insert and remove from a player while driving.89

  It was an eccentric car salesman who first initiated the fusion of cars and magnetic tape. Based first in Chicago and later in Glendale, California, Earl “Madman” Muntz managed to make a fortune selling cars during the Depression and the postwar recession by squeezing prices and promoting sales through wild antics. For example, Muntz would advertise a “special of the day”—a car that had to be sold immediately or he would smash it to bits on camera by nighttime. “Muntz is generally credited with starting the ‘this guy’s insane, come take advantage of his crazy prices’ school of salesmanship,” the tape collector Abigail Lavine says.90 He got into the TV business right after World War II, searching for an angle that would allow him to compete with RCA, Zenith, and the other big companies. He constructed a barebones TV set that would sell cheaply in urban areas; the contraption would not pick up a signal from very far away, but Muntz figured that consumers in big cities like New York and Los Angeles would settle for the cheapest TV possible if the broadcasting antenna were nearby. His design philosophy came to be known as “Muntzing,” which meant hacking away any components that were not absolutely necessary for the device to function.91 Bill Golden, an engineer, recalled that the company’s $99 TV was known in the industry as the “gutless wonder” in the 1950s because it had so few parts.92

  While still in high school, Golden installed four-track players in cars in his west Texas hometown for several years before moving to California to work with Muntz. He had gotten his own four-track player from a local wholesaler in 1964, and, seeing an opportunity, asked for three thousand dollars’ worth of tapes and players on consignment. Soon his driveway was full of cars every Saturday, while he and a friend installed players and sold tapes from a rack in the trunk of his car. “Everybody wanted one, you know, it was a ‘thing’ then,” Golden recalled in 2007. “I guess it was kind of like iPods are now.… For a teenager at that time, [the car] was really a domain, and because of that it was a product that people would spend money on and put in their cars.”93 The two young men were making money hand over fist, and by 1967, Muntz had noticed that the four-track trade was unusually brisk for a Texas town of 50,000 people. Golden was then a senior in high school, and Muntz offered to bring him out to Van Nuys to work in his company when he graduated. Although Golden spent his first month on the assembly line, he said, “they moved me to Engineering when they found out I knew something about the product.”94

  Muntz needed a young man with a knack for electronics to help improve the four-track cartridge, which faced heavy competition from other formats by 1967. A chance meeting in early 1963 brought the Madman in touch with another tinkerer who contributed to the development of magnetic recording as a mass medium. Muntz’s son loaned a Lincoln Continental to Shanda Lear, the teenage daughter of Bill Lear, the aviation pioneer, so she could pick her father up at the Santa Monica Airport. Noticing the four-track tape on the Lincoln’s dashboard, Shanda saw an opportunity for her father, who had experimented with wire recording and car radios early in his career. Her business sense was correct; Bill Lear went straight to Muntz’s house and worked out a deal to distribute the Stereo Pak four-track tape in the Midwest.95

  Lear and Muntz were two of a kind. Both were entrepreneurs and inventors who enjoyed a challenge, refused to take no for an answer, and had worked their way up from the bottom with flinty determination. Both also saddled their daughters with eccentric names—Shanda Lear and Tee Vee “Tina” Muntz. (Both women aspired to be singers.) Lear had a reputation for cutting staff as much as Muntz liked to hack away superfluous parts from a prototype, and they both had a penchant for imprinting their personal marks on everything they touched.96 Muntz went for white clothes, white décor, and a white Lincoln Continental, at least when he was not wearing red tights and a Napoleon hat to sell cars. Golden never forgot the white pool table he saw at the Muntz mansion. As their business partnership turned into a war of formats, the men showed what can happen when two ambitious and inventive control freaks collide.

  Lear and his engineer Sam Auld first aimed to tweak the four-track model, dismantling and reconstructing the cartridge over numerous long nights, before deciding to start over from scratch. Lear considered recording eight tracks of sound on a single band of tape, and ran his ideas past Alexander Pontitoff, the founder of Ampex, a pioneer in the magnetic tape field. “I tried to put eight tracks on a quarter-inch tape,” Pontitoff told him. “You can’t do it. Just can’t squeeze that much information on it.” Emboldened by the apparent challenge, Lear invented just such a tape, the Stereo Eight, and began installing the players on his Learstar corporate jets. He also lobbied the automobile companies to offer the eight-track as an option on their new car lines.97

  Magnetic tape, then, was popularized by outsiders who prodded an ambivalent music industry to adopt the new technology as a recording medium. Muntz was k
nown for his cars and televisions, and Lear for his planes. The Madman conceived of his tape player as an add-on for cars. RCA only signed on to provide music after Lear pitched a hard sell to Ford, arranging for Lear Jet to make the cartridges, and Motorola, the car stereo equipment.98 The other record companies were hesitant at first. “The remaining three of the Big Four in recorded music (Columbia, Decca, Capitol) have made no big move yet,” Business Week reported in 1965, “but all are watching with interest.”99 Three years later, labels looked with fear and suspicion on yet another new format—Philips’s compact cassette—much as it had the tape cartridge before it.100 Golden, for one, believes that the record industry was indifferent. “Muntz was able to license so many duplication deals from record companies during the early sixties at unbelievable prices because they … said that consumer tapes were a passing fancy and that nothing would ever replace vinyl records,” he wrote. “So much for corporate forecasters.”101

  In any case, Ford, Lear, and Motorola brought the first effective, user-friendly tape cartridge to a mass audience. To persuade Henry Ford II, Auld installed a tape player into the executive’s Lincoln Continental.102 At a Detroit auto show in 1965, Ford showed off a car with a tape player and radio combo that fit into a conventional radio slot, eight inches wide, three inches high, and six and a half inches deep. Consumers could also get the tape player attached underneath the dashboard. The tapes—rectangular, plastic, and palm-sized—played eighty minutes of music, and Lear had tapered the end of the cartridge so motorists could tell which way to insert the tape without looking. The company planned to install as many as 100,000 players in 1966.103 That year, car buyers could order a sedan, wagon, Mustang, Thunderbird, Mercury, or Lincoln with an eight-track player built-in. The option cost $128.49. Lear built the tape cartridge, Motorola manufactured the radio and stereo speaker components, and RCA sold prerecorded tapes for prices starting at $4.95.104