Such steps remained tentative in the early twentieth century, though. Copyright was still constrained by doubts about monopoly and the uncertainty that surrounded evolving technological and cultural forms. Decisions like INS reflected a Progressive Era predilection for limiting the control of information. In his dissent, Justice Louis Brandeis voiced these concerns. “The creation or recognition by courts of a new private right may work serious injury to the general public,” he wrote, “unless the boundaries of the right are definitely established and wisely guarded.”93
The coming decades would provide numerous opportunities for songwriters, musicians, entrepreneurs, and listeners to argue about how best to bound and guard those rights. How much should a company’s investment be protected? How far could courts extend the ownership of expression before straying into Congress’s territory? Although the Fonotipia ruling condemned copiers who put out an inferior product, shady dealers continued to furnish secondhand records in the shadows. The rise of a collecting culture among music fans led to the copying and exchange of records that were out-of-print or otherwise unavailable, and the emergence of radio as a medium threatened the revenue of music publishers and record companies even as it furnished the public with a new source of “free” sound.
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Collectors, Con Men, and the Struggle for Property Rights
The boundaries between legitimate and illegitimate, real and fake, original and copied continued to be fuzzy at times. Congressional reform had denied record companies copyright protection for their products, yet the Fonotipia decision seemed to condemn unauthorized copying of recordings. Into this legal confusion a whole host of characters made their moves—industry wheeler-dealers, record collectors, radio stations, musicians’ unions, bootleggers, even the Mafia—all with their own ideas about how sound recordings ought to be produced and exchanged. Collectors believed the public had a legitimate interest in keeping recorded music in circulation, and bootleggers stood ready to supply the demand if the major labels failed to do so. Meanwhile, radio posed a new set of challenges; unions believed that musicians should own the rights to the recordings they produced, or at least benefit from royalties when the records were played on the radio. Record companies could not decide whether broadcasters unlawfully reproduced their products or helped promote them, as some stations sold bootleg disks of the performances they aired.1 The legal status of recorded sound remained in flux.
The career of Eli Oberstein reveals how some in the music business played fast and loose with recorded sound in the mid-twentieth century. Oberstein had been a colorful producer and executive at RCA Victor in the 1930s, helping to launch the recording careers of Artie Shaw and Glenn Miller.2 Upon his abrupt departure in 1939, Oberstein started his own company, the US Record Corporation, which sold cheap recordings under the Varsity label. Oberstein’s ambition to bring numerous artists along from RCA Victor faltered, but he still managed to get records on the shelves by reissuing old recordings from labels such as Crown, Gennett, and Paramount, seemingly by copying from commercial recordings rather than the original masters.3
Scholars disagree over whether Oberstein obtained the proper legal permissions to sell the records, but the murky origin of many such bargain-bin discs only exemplifies the career of an entrepreneur known for working along the edges of the law. Howls of “bootlegging” arose when Oberstein mysteriously managed to keep churning out records during a major strike by the American Federation of Musicians (AFM) in 1942, though the records were credited to unknowns like Johnny Jones. “It’s very simple,” Oberstein said, “I pick up any tune I like, and the records just come in.”4 Oberstein claimed that he dodged the restrictions of the strike by recording in Mexico, although many suspected that he was, in fact, recording in New York hotel rooms with amateur musicians and willing strikebreakers. In this context, “bootlegging” meant defying the strike by making new recordings, rather than copying other people’s records.5
Oberstein’s tactics continued to stir controversy in the industry until his death in 1960. In some cases, Oberstein relabeled a recording with the name of a made-up artist, attributing a blues tune to “Sally Sad” or “Big Richard.” Although the names can be dismissed as inane, the tactic reveals a certain sense of humor.6 Between 1940 and 1942, Oberstein’s Top Hat label released a series of “party records,” which featured mild sexual innuendo and sometimes carried a label stating that they were meant only for home use, as at a party.7 (“We have now reached the double-entendre era,” Oberstein wryly told Time in 1940.)8 The flip side of these risqué records often featured a copy of a performance recorded for one of Oberstein’s earlier record label ventures, although the performance was attributed to a pseudonym.9 His record of “She Tried It Last Night” features no performer’s name at all.10 Oberstein later aroused the ire of opera singer Regina Resnik, when in 1954 he recorded and sold copies of her radio performance of Wagner’s Ring cycle under a different name. He also sparked controversy in 1959 when a German court prohibited distribution of a record, Songs and Speeches of Nazi Germany, which Oberstein had supposedly released—an accusation he bitterly denied until his death the following year.11
Unlike Wynant Van Zant Pearce Bradley, Oberstein did not seek to exploit the popularity of another company by counterfeiting its recordings or repackaging them. The use of a pseudonym like “Sally Sad” suggests that, in the obscurity of the bargain bin, music might be an anonymous product and not the distinctive work of an esteemed and promoted artist. Indeed, Oberstein’s copying and reissuing recalled the techniques of music publishing pirates earlier in the twentieth century, who would reproduce hymns and other tunes but make up different names for them to avoid notice. The cases of Bradley and Oberstein show how muddled ideas about ownership and authorship remained well into the twentieth century. An inferior knock-off of an Italian aria or a disguised blues number suggested that recorded sounds might not be tied tightly to any particular company or performer. Sound could be a sort of anonymous fodder for entertainment, like the motion picture reels that pioneering studios once sold by the foot; such films lacked credits because the companies worried that actors could gain greater bargaining power if their identities were known and they became popular with the public.12
However, like movies, musical recordings became vehicles for star performers and their perceived talents in the early twentieth century. A recording was not merely a “mechanical reproduction” of a song, like the holes punched into a paper piano roll. Listeners attributed a distinctive quality to a particular artist’s performance of a song—a value that could be appropriated, rightly or wrongly, through copying. A pirate record with a mistaken title and no artist attribution made little sense if the public sought familiar songs by well-known performers. The status of recordings as valuable artistic works solidified as listeners began to curate the growing body of recorded music in the 1920s and 1930s; in the process, they laid the groundwork for a new bootleg market, as well as the subsequent legal backlash that permitted record companies to begin asserting rights of ownership to their recordings.
Despite numerous attempts, the recording industry did not secure federal copyright protection for its products until 1971. Recordings were technically uncopyrightable for decades, and various pirates seized on the apparent loophole in federal law to copy works without seeking permission. Beginning in the 1930s, some bootleggers reproduced out-of-print works that had been abandoned by the major record labels without incurring any legal reaction. However, disputes over the legitimate use of recordings did arise throughout this period, producing a variety of contradictory legal opinions. In particular, two decisions by courts in New York—RCA v. Whiteman (1940) and Metropolitan Opera v. Wagner-Nichols (1950)—epitomized the contrary claims of ownership and creativity that drove this long-running debate. Although the courts split on the question of whether they could constrain piracy in the absence of federal copyright, leaving the status of sound uncertain, the outlines of a new justification f
or property rights began to take shape. When a court determined that the Metropolitan Opera had a right to reap the value of its popularity and reputation, it created a rationale of ownership that would powerfully reshape copyright in the 1960s and 1970s.
The Emergence of Collecting Culture
In the late 1920s a new breed of listener entered the scene of American popular culture—the jazz record collector, who appreciated jazz as an art form and sought to hoard the artifacts of its early evolution. Many of the recordings these fans collected had been produced in low numbers by small or unstable companies. The records they loved best had been targeted largely at African American consumers, who played the discs until they were nearly rubbed raw. “Your sole consolation was that early jazz was like folk music, a people’s music,” collector Charles Edward Smith reflected years later, “and the grooves were sometimes all but gone, only because people who had loved it had listened to the records again and again.”13
In any case, the early recordings of jazz were fragile and few in number. Major companies like RCA Victor and Columbia did not see much to be gained by keeping obscure records in print. “The large mass-distribution organizations can handle, to their own satisfaction, only those large-selling items which have mass appeal,” collector Wilder Hobson observed in 1951, when the movement for collecting and preservation that he and his colleagues had started years before was bringing music copying to a head as a legal issue. “The pirate may be ethical or unethical, as you choose, but he is frequently engaged in offering time-tested, out-of-print works of art which the big recording interests have not felt it worthwhile to issue.”14
Devotees like Hobson had discovered how scarce the relics of Bix Beiderbecke and other collector favorites really were, and they duplicated these records for their friends. Then, in the late 1930s, collectors began the Hot Record Society to reissue classic recordings as an indifferent music industry looked the other way, establishing a precedent for record copiers who catered to jazz enthusiasts after World War II. In the process, the spirit of collecting collided with the dubious ethics of copying. Collectors gathered up things that were valuable because they were rare, whereas copiers made rare goods less so. Although bootlegging may seem to contradict collecting, in this sense, the two practices often coincided, meeting on one side of the law and then the other.
Record collectors and copiers reinterpreted the economic, legal, and social meaning of sound, offering their own answer to the question of how to deal with the accumulating backlog of recorded music. Working with wax and vinyl, they prefigured consumers who copied, compiled, and shared recordings through such media as magnetic tape and computer networks later in the twentieth century. Bootleggers highlighted the potential for recorded sound to have long-term commercial value at a time when the music industry still treated recordings as products of the moment, aimed at contemporary markets and abandoned as consumer tastes shifted.15
Collectors insisted that performances of the past ought to remain available, and if large companies could not make a profit by keeping such recordings in circulation, individual fans and entrepreneurs would copy and distribute the music themselves. By buying, selling, and copying the out-of-print discs of yesteryear, collectors showed that recordings did have an enduring value that the original producers—artists and record companies—would have an incentive to protect. In the process, bootleggers tested the limits of how listeners could legitimately use the products of modern culture industries, while provoking a reconsideration of the meaning of recorded sound as both art and property.
Intellectuals began to reevaluate jazz during the 1930s, at a moment when the public was embracing swing as popular music. Primarily white readers and writers developed a critical discourse about jazz in magazines such as Down Beat, and some on the Left embraced it as a people’s music opposed to the values of fascism.16 In 1934, France’s Hugues Panassié broke ground on theorizing an aesthetics of jazz, and his countryman Charles Delaunay soon inaugurated the project of cataloguing jazz recordings. Americans took note and began publishing “the little jazz reviews,” according to folklorist Alan Lomax, who remembered “frightfully serious and sophisticated jazz critics” descending on Jelly Roll Morton at the Jungle Inn, a club in Washington, DC. Morton saw his early innovations like “The Pearls” and “Wolverine Blues” played on the jukebox.17 Jazz magazines sprouted up in the late 1930s in response to the growing public interest in swing music.
The new craze prompted the emergence of a breed of connoisseurs who preferred small group improvisation and badmouthed the tastes of the mainstream.18 Some critics believed that popular swing was compromised by commercialism and that earlier and less popular forms of jazz were more authentic or artistic. Some perceived jazz as an earthy “folk” genre, while others envisioned it as a high art that could compete with European classical music.19 Whatever their vision, such jazz aficionados in the 1930s and 1940s disdained swing as artless pop music; their journals resemble the tiny, self-published zines of the late twentieth century, which frequently favored independent or avant garde subcultures.20 These small jazz journals cultivated a market for rarities, with the value of a recording determined by the number of copies that had come into the hands of collectors.
Affluent white collectors described searching for the scattered remnants of early jazz as if they were anthropologists doing exotic field research. Often enough, the field consisted of the homes and neighborhoods of black Americans, who made up much of the initial audience for the music. “Many of the collectors’ items were originally issued purely for Negro consumption,” collector Steve Smith wrote in 1939, “and consequently were sold only in sections of the country which had a demand for them.” White men canvassed black neighborhoods in Philadelphia, Chicago, and Kansas City, often going door to door. One collector in New York abandoned this method and just left his card “with all the janitors in Harlem,” who would contact him when they came across an item of interest.21
Collector Dick Rieber described one such excursion in an early jazz fanzine. His article “First Thrills in Beulah Land” described a Philadelphia neighborhood that proved to be a “collector’s Eden” because the residents were willing to part with their records for much less than their potential value. The local children followed Rieber through the streets and directed him to homes where records could be found.22 The Beulah of his title could not understand what he wanted with all the old records. Her collection included sermons, washboard bands, blues, jazz, and much more. Rieber paid $5 for sixty of her records, even though he knew one of the discs to be worth $2 by itself. “Beulah, though she didn’t know it, was giving me one of my biggest collecting thrills,” he wrote. Rieber did not clarify whether it was the joy of discovering unexpected treasures or the thrill of buying someone’s possessions for drastically less than they were worth that excited him so much. In any case, the story is a familiar one. He managed to buy up records from several of Beulah’s visitors, too, who had heard that a white man was looking for the blues. (“And old blues at that!” he added.) He even claimed to find Bessie Smith’s sister living nearby, but she would part with none of her records.23
Observing the jazz scene in 1939, music writer Steve Smith gently mocked the devotees of genuine, original recordings with their “little black books” full of recording dates and master numbers. “I sometimes wonder when there is time for listening to the music,” he wrote.24 If two such collectors were sitting in a club, he said, they would be so wrapped up in competitively comparing notes that they would pay little attention to the music performed around them. Smith credited collectors with contributing to the storehouse of knowledge about the music, but he saw little point in memorizing data or keeping a record just because Louis Armstrong was known to have been in the room when it was made. Similarly, some fans frantically pursued any little trace of their single favorite musician. “These fanatics are the loneliest people in the world,” Smith wrote, “shunned by other collectors who regard them as not fit to
talk to.” Rather than having a genuine love of the music, whoever might be playing it, they only paid attention when their idol began plucking, tapping, or blowing away. Worst of all, Smith thought, were the collectors who only got into the game because they heard that old jazz records were increasing in value. They hoped to catch a windfall and did not care for the music much at all. At least the fanatic and the know-it-all listened to jazz.25
Some fans focused on history and authenticity, and would only accept original recordings. A diehard follower of a particular performer such as Bix Beiderbecke, on the other hand, might settle for any reproduction of an unheard recording, no matter what it looked like. For his part, Smith defined mainstream collectors in contrast to both these kinds of men of narrower motivations. “The majority of hot collectors are quite normal human beings who do not go to extremes,” he wrote. “They look mainly for the classics of hot, for the thrill of possession and enjoyment. They, too, keep up the search for rare records, but solely in the hope of finding something satisfying to the ear, as well as something they consider to be of historical significance.”26 Here, Smith identified a mix of reasons behind the movement: aesthetic appreciation, historical preservation, and the fetish of possession all drove him and his fellows to collect.
Although some collectors did insist on having the original disc, the small-scale copying of records in the 1930s suggests that others would accept a copy.27 “There are those who will have nothing but the original label,” Smith observed, “and who will turn down a clean copy of a record in preference to [the original] in bad condition because the latter has what is known to be an earlier label.” However, fans who cherished a record not only for its historical character but also for the sound it contained would settle for unofficial copies of rare works. “One often had acetates made from discs owned by a fellow collector,” according to Charles Edward Smith. “These were called ‘dubs’ and were brought out on display apologetically, like fish bought in the market instead of caught properly with rod and reel.”28 The word “dub” originated in the late 1920s, meaning to “double” an object. The term connotes a practice of making individual copies, doubling an item one copy at a time, rather than mass producing it in large batches.29 The verb was fittingly used by those pragmatic collectors who made copies of rare records for each other. Speaking of the music of Sidney Bechet, George Hoefer wrote, “The original record is so rare that it is almost impossible to even find a copy from which to dub an acetate.”30 The collector, critic, and producer John Hammond once had to seek out the Chicago musician Meade Lux Lewis in person because he could not find a Lewis record of good enough quality to copy.31
Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century Page 6