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

by Alex Sayf Cummings

  Like many things with Rubber Dubber, the truth differed from the image. According to Heylin, Dubber’s leader was the scion of a Dallas crime family who wandered away from the family business.85 The evidence suggests that he did not stray very far. Terry Conklin, a Laguna Beach drug dealer, had ponied up funds to get the organization going, and some participants pulled in additional cash from credit card scams. Of course, as Tom said, the group’s leaders could afford to be “very generous, as they never paid for anything.” When Ed Ward asked Rubber Dubber’s leader, “How do you expect to make money?” he responded that they had no need for profits. The group divided up its proceeds equally, and looked after the rent, health insurance, and Social Security of its employees.86 However, the reality was not so communist; the sales staff, for example, worked on commission. Tom insists that the workers never got a share of the profits, nor did the artists ever receive a dime. “It didn’t take long to see through those guys,” he says. “They were only in it for personal gain.”87

  By late 1971 time was already running out. A bill providing federal copyright protection for sound recordings passed Congress in August, and Rubber Dubber rushed to sell off as much of its stock as possible.88 After its Crosby, Stills and Nash bootleg hit the shelves, David Crosby hired detectives to monitor the group, although the investigation turned into a farce. Several gumshoes followed a trail all the way to a school for the deaf in Texas, which Rubber Dubber had led them to believe was a bootleg factory. Meanwhile, in Kansas, another team of detectives banged on the door of a man they were sure was the group’s leader at four in the morning. “After he’d listened to them trying to serve the subpoena on him, he ripped it into shreds and threw them in jail for disturbing the peace,” Ward wrote. “He was the county sheriff.”89 A more serious encounter soon followed. US Marshalls descended on the Dubber headquarters, deep in the warehouse district of East Los Angeles. Kane had to keep the lawmen occupied in the office while Tom and the other employees removed all the contraband from the warehouse and drove away. “It fell apart after the raid and never really recovered,” Tom said. “By that time, the idealists like me had already moved on.”90

  Many of the bootleggers got out of the business after the new copyright law went into effect in February 1972. For example, Rubber Dubber’s leader quit after a few close brushes with the law, although he landed in jail on a murder charge years later. Tom Brown went to Oregon to seek spiritual enlightenment shortly after the US Marshals showed up. Jan Bohusch turned on his former partner and testified about their activities at a public hearing in New York in 1974. Some, like Bohusch’s partner, kept on copying, in part because the 1971 law only banned the reproduction of recordings copyrighted after the statute went into effect. Some used the same tactics as Boris Rose and the Bronx baker, who put out each record on a different label to cover their tracks. For example, one bootleg group in the mid-1970s issued each of its records under names like Hen, Led, and Steel Records.91

  After the law changed and the fervor of the late 1960s faded, rock bootlegging reverted to much the same form as the jazz and classical piracy before it, continuing to provide live performances and other rarities to a devoted fan base. No longer making splashy statements about changing the system, these bootleggers were, in Denisoff and McCaghy’s terms, essentially collectors’ pirates. A countercultural tendency did persist, perceptible in the role of bootlegs in spreading the word about punk rock and hip-hop. Throughout the 1970s, record companies, musicians, and politicians struggled to squelch the growth of unauthorized reproduction through increasingly punitive copyright reform and new kinds of law enforcement; during the same period, piracy endured and evolved in response to legal suppression at the state, federal, and ultimately, international levels.

  || 5 ||

  The Criminalization of Piracy

  Even as war, riots, and rock and roll shook the United States in the 1960s, Congress continued to fiddle with copyright reform. When Great White Wonder appeared in 1969, lawmakers were considering yet another proposal to give the record industry what it had wanted for sixty years: a separate copyright for sound recordings. The numerous legislative false starts of the era forced labels to look elsewhere for help in dealing with the surge of music piracy, first with renewed litigation on the grounds of unfair competition, and then by lobbying state governments to pass their own antipiracy laws. Lawsuits proved costly and ineffective, as pirates found it easy to dodge injunctions and other penalties, often by leaving one state and setting up shop across the border. And state laws raised constitutional questions about whether the states were creating an unlimited quasi-copyright, thus intruding on the federal government’s turf.

  California’s 1968 statute, one of the first and one of the strictest, was challenged at the state and federal level, leaving the debate open until the Supreme Court’s 1973 Goldstein v. California decision.1 By then, Congress had already responded to the bootleg boom by extending copyright to sound recordings. When that reform failed to quash piracy, lawmakers strengthened fines and enforcement and ultimately passed a measure in 1976 that changed the terms of copyright for decades to come.

  Stirrings of Reform, 1955–1964

  Why did Congress decide to take up the issue of copyright again in 1955? Dante Bollettino and other bootleggers had made headlines in the early 1950s by copying rare and out-of-print jazz recordings. Record companies used these incidents to remind lawmakers of the shortcomings of the last major copyright revision, passed in 1909. Indeed, the 1920s and 1930s saw lawmakers attempt to bring US law in line with the Berne Convention, an international agreement signed in 1886, but each effort failed because of discord among publishers, record companies, broadcasters, and other interests. Congress abandoned the revision project in 1940 to handle the more pressing concerns of war.2

  With the return of peace, politicians turned their attention to copyright once more and attempted to assess the role of the media and culture industries in the booming economy. Economic growth meant that consumers had money to spend on nonessential goods, whether a bootleg of New York’s Metropolitan Opera or an old Jelly Roll Morton recording. Pirates could take advantage of consumers’ greater disposable income and the youth market by satisfying a demand unmet by the major record companies. Television and radio provided more material for bootleggers to copy and sell, and advances in recording technology made it easier to do so.

  The first signs of friction over unauthorized reproduction emerged soon after World War II. The entertainment capital of Los Angeles passed the first criminal law forbidding piracy in 1948, and California would be one of the first states (second only to New York) to approve a similar statute in 1968.3 Music labels formed the Recording Industry Association of America in 1952 to protect their interests, which consisted largely of maintaining the compulsory license system (which permitted them to record songs by paying a low fixed royalty) and stopping the illicit reproduction of records. Never known for its celerity, Congress began to reconsider the issue in 1955, funding a series of studies on copyright and related industries; a stopgap measure to provide copyright for sound recordings would arrive sixteen years later, and the long-awaited comprehensive revision came only in 1976.

  Congress passed the first Copyright Act in 1790, and major revisions ensued about every forty years—in 1831, 1870, and 1909. Judging by this pattern, an overhaul was due by the 1950s. Reporting to Congress, economist William Blaisdell calculated that various industries had generated $6.1 billion from the use and sale of their copyrighted products, out of a national income of $299.7 billion. The aggregate of radio stations, newspapers, record stores, and related businesses earned more than banks, mines, or utilities, and slightly less than the auto industry, even in the 1950s heyday of General Motors.4 Blaisdell’s study showed Congress that various media represented a sizable share of the nation’s economic output, but the qualitative changes were at least as significant as the quantitative ones. Radio and television broadcasting did not even exist when the
1909 act was passed, and the film and recording industries were then only beginning to take shape.5

  In 1961 the Register of Copyrights, Abraham Kaminstein, made a series of recommendations that addressed looming controversies in music and publishing, among other industries. He proposed ending the compulsory license for musical compositions, which would allow songwriters to license their work selectively, like any other copyrighted item. Publishers were eager to see the existing system terminated, since they hoped to negotiate higher prices for the use of their songs than the flat rate fixed by Congress. Record companies, on the other hand, wanted to be able to record any song without negotiating deals with individual composers or publishers.6 Kaminstein also hinted at the brewing conflict over “new techniques for reproducing printed matter,” such as the Xerox machine, an increasingly vital tool in labs, libraries, and offices throughout the country. A long and bitter conflict over “fair use” would play out during the 1960s and 1970s, pitting academic publishers against the National Institutes of Health, whose libraries regularly photocopied articles from science journals in large numbers for researchers throughout the country.7 Before the mêlée broke out, the Register recommended that a library be restricted to making a single photocopy of an item in its collection, with specific guidelines to be worked out later. As for music piracy, Kaminstein was cautious: “This report … favors the principle of protecting sound recordings against unauthorized duplication, but makes no specific proposals pending further study.”8

  Indeed, over fifty years of experience failed to yield a solid answer about what to do with recordings. There still was no consensus about whether a mechanical reproduction of music was a “writing” apart from the song on which it was based, or, if it was, then who the writer was. The Constitution allows an author to benefit financially from his writings, but the first Congress included only books, maps, and charts in this category, to which legislators added (written) music in 1831 and photographs in 1865.9 As the Supreme Court noted in its controversial 1908 White-Smith decision, Americans had only attributed copyright to works that were visually perceptible. One could understand letters, musical notes, and images, whether printed, painted, or photographed with the naked eye. To Justice William Day, the grooves on a phonograph disc and the holes in a piano roll were not the same thing. They were more like the gears in a clock than the words in a book. Machines could be patented on the basis of what they did, not what they meant, and patents had to reach a higher standard of novelty than the standard of originality for copyrighting an expression.10 Congress could have decided to take the unprecedented step of recognizing a mechanical application of expression under copyright, but, as we saw in chapter 1, lawmakers chose not to recognize the recorded performance as a copyrightable expression, separate from the song itself.

  Numerous media developments in the first half of the twentieth century undermined this idea that a visual expression was necessary for copyright protection. Film, radio, and television all provided new examples of meaning conveyed by technological means quite distinct from the palpable, visual world of print and paper. Still, lawmakers and judges found ways to square the circle; a movie could be understood as a series of individual images, thus fitting into the precedent of copyright for photographs. Advances in computer technology, especially during and after World War II, posed much thornier dilemmas. For instance, should a string of ones and zeroes or a microchip qualify as a novel mechanical achievement, worthy of patent, or a meaningful cultural expression, deserving copyright?11

  The growing use of media such as magnetic tape added to this confusion. A motion picture can be viewed as a series of individual images, which were already copyrightable, but a recorded performance was fundamentally different and distinct from the written composition on which it was based. Authorities thus found it easier to fit film into the old copyright paradigm than musical recordings; the record possessed elements of creativity that could be found only among its vinyl grooves or magnetic particles, not on the written page. At Congressional hearings in 1962, the American Guild of Authors and Composers (AGAC) argued that “all forms of authorship creation, visual and aural (whether on disk, electronic tape, or otherwise) should be deemed to be copyrightable ‘writings.’” The AGAC went on to note that, with the increasing use of recording technology, the “initial expression” of a work often first occurred in an electronic form—for example, a poet speaking into a tape recorder, or a jazz band improvising in the studio.12

  Such works did not start with written symbols and then get inscribed in an electronic medium. Indeed, legal scholars Harriet Pilpel and Morton Goldberg pointed out that certain types of electronic music could not even be transcribed in any conventional notation, thus denying them any chance for copyright protection.13 Record producer Herbert Kanon explained the problems he faced with his own “sound effect” recordings, which he could only copyright in the form of a book that described the sounds. The AGAC concurred: “Often, the only full of expression of a work—a musical composition as performed or a motion picture—consists of a fixation by such form of recording.”14

  The AGAC’s term “authorship creation” is telling. This vaguely industrial-sounding expression alludes to the creation of something and implies that some kind of authoring occurred, but who authored what is unclear. Although the phrase did not enter general usage, one can assume that the AGAC chose “authorship creation” carefully in preparing its testimony. The author is easy to find when one imagines a literary genius pecking away at a typewriter, but media like radio and film almost always involved the creative contributions of numerous workers. One could say the screenwriter was the author of the Hollywood blockbuster, but countless decisions separated the script’s creator from the final product, the series of images on the screen. Was the gaffer or the key grip an author? What about the cinematographer, the person who actually pointed the camera and determined what the images would look like? By convention the film director has won the honor of a byline in the movie business, but even this person (usually) works for the movie studio, and “works for hire” were owned by whoever put up the money and did the hiring.15

  Not everyone at the hearings, at least in the early 1960s, was convinced that the problem of who authored or owned a recording could be resolved. Organized labor worried that reform would result in a record company, rather than the performers, receiving the copyright. Even songwriters and their publishers were unsure about the revision; the record companies could end up possessing a stronger copyright than the composers, who had limited control over who could record their work and only received a flat rate for each copy of a recording. The Music Publishers Association’s Philip P. Wattenberg explained the problem:

  Music publishers have always been against copyright of records. They have difficulty in understanding just how this can be done. For example, if we take a musical composition “Begin the Beguine,” it has been copyrighted as a composition, which has been published in printed form, assume we now license RCA Victor to make a record of “Begin the Beguine” in exactly the same series of notes that we have in the printed form. In other words, there is no arrangement. If RCA Victor were to try to copyright that record under the title “Begin the Beguine,” in whose name would that copyright be? Certainly it could not be RCA because the basic work is copyrighted in the name of the publisher. This can only lead to confusion and a dilution of the rights of the original copyright owner, which is the publisher.16

  If the recording is merely a note-for-note transcription of the sheet music into sound with little in the way of interpretation, what is the record company’s claim to a copyright? It can only consist of hiring a musician, buying the studio time, and paying for the production and promotion of the record. In other words, it is a monetary and technical investment in this hypothetical scenario, involving almost no degree of interpretation or artistry. The record companies thus wished to obtain a copyright for their capital.

  Wattenberg’s example is an extreme one, but
the possibility that individual interpretations would be unique (and copyrightable) also raised concerns. In 1962, the lawyer Julian Abeles insisted to lawmakers that sound recordings were not sufficiently original to merit copyright. Even if they were, the result would be a logistical nightmare, at least from a legal and economic perspective. “If every time an artist rendered a composition that rendition would be subject to copyright, then we would have innumerable copyrights of every composition, because each artist would claim copyright for his or her purported original rendition,” Abeles said. One performer might sing the song in a particular tone of voice; claiming a copyright for that rendition, he or she might try to stop someone else from recording it a similar style. How the engineer recorded or mixed a performance might be copyrighted as a unique interpretation. Critics of a copyright for recordings wondered how courts could possibly sort out the claims of those who “owned” certain sounds. Technology seemed to open up new avenues for individual expression, but how those expressions would be handled individually was far from clear.17

  Given profundities of this kind, as well as the lack of unity within the music industry on the subject, Congress backed away from providing copyright for sound recordings in the early 1960s. Instead, lawmakers tried to formulate a more limited bill that would make counterfeiting illegal. Support for such a modest step was more forthcoming. “Sound recordings should be protected against physical reproduction, i.e., dubbing, for a limited term comparable to the term of copyright,” the Author’s League allowed. “However, copyright protection is not required for this purpose and, in fact, could cause serious disadvantages. A simple prohibition against dubbing would serve the purpose.”18 In contrast, Barbara Ringer, who worked in the Copyright Office and later became Register of Copyright, believed that any such prohibition would have to be based on copyright law. How else could dubbing be banned except on the grounds that someone else’s creative expression was being unfairly exploited—the purpose of copyright? As introduced in April 1961, the bill forbade anyone from selling and distributing a counterfeit record over state or national lines “without permission of the owner of the master recording.”19