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

by Alex Sayf Cummings

  Ringer’s view won out, however. Congress realized that prohibiting people from copying and selling a record was tantamount to giving it copyright, and that lawmakers might as well resolve the issue directly rather than indirectly. The resulting bill, passed in 1962, focused instead on duplication of the packaging of the record, rather the music inside it. “The bill was limited to dealing with what was then the rather pernicious practice of simply duplicating everything, the trade dress, the appearance of the label and album cover,” Ringer recalled in 1971, “so that you could not tell the legitimate record from the counterfeit.”20 She also noted that pirates got around the law simply by forgoing any effort to mimic the original package.

  Taking the Battle to the States

  Congress revisited copyright reform in 1964, shortly after two landmark Supreme Court decisions set a new precedent for limiting property rights.21 In the 1940s and 1950s, courts had zigzagged from Learned Hand’s cautious approach to an expansive view of copyright in Metropolitan Opera v. Wagner Nichols (1940) and Capitol v. Mercury (1955). In Sears and Compco (1964), however, the court held that one company could not be prevented from copying the look of another’s light fixture, since the design was not a unique invention or a work explicitly protected under copyright. Since copyright was the prerogative of Congress, and it had specifically listed what items could be protected, state governments and the courts had no power to create additional property rights. Such “quasi-property rights” not only impinged on the supremacy of Congress but also opened up potentially unlimited rights that, under copyright law, would have been limited to a fixed number of years. Kaminstein warned that the industry could end up with stronger rights if Congress neglected to provide clear guidelines for sound recording, and Ringer echoed this concern. “In the absence of Federal legislation,” she said, “performers and record producers have what amounts to a complete monopoly under state law.”22

  In yet another turn, though, virtually every subsequent court ruled that Sears and Compco did not permit the copying of sound recordings. They determined that the rulings could not extend all the way from the design of a lighting fixture to a record, in which much time and money had been invested. According to this view, the two decisions permitted copying or imitating someone else’s work but not directly appropriating it through piracy.23 The distinction is fine but significant: “copying” referred only to imitating the look or sound of another product, while “appropriating” meant taking the product itself—in this case, a recorded performance—and selling it as one’s own. Just months after Sears and Compco, in the case Capitol Records v. Greatest Records, the New York Supreme Court enjoined Greatest Records from selling two albums and a single by the Beatles that were originally released by Capitol Records.24 The court determined that Sears only concerned the “copying of an idea,” while pirating a Beatles record amounted to taking and profiting from someone else’s actual product.25

  Five years after the Greatest case, the California Court of Appeals agreed that reproducing a sound recording amounted to outright theft.26 A company called Phoenix sold tape copies of recordings by the Lettermen, taking care to remind consumers on the packaging that they were in no way affiliated with the group’s label, Capitol Records. The difference in design would protect them from prosecution under the 1962 anti-counterfeiting law, Phoenix thought, and the disclaimer would prove that they were not “palming off” their tapes as Capitol’s products—a tactic that had consistently failed since the heyday of Wynant Van Zant Pearce Bradley in 1909. Phoenix had also changed the order of the tracks on the tape, perhaps to show that they were not selling the exact same product. “It is obvious that Phoenix is able to sell the cartridges at such lower price, and still gain substantial profit, because Phoenix circumvents the necessity of expending skill and money in acquiring the artists and recording their performances,” Justice Park Wood wrote for the court. “Thus, Phoenix unfairly appropriates artistic performances produced by Capitol’s efforts, and Phoenix profits thereby to the disadvantage of Capitol.”27

  Phoenix was guilty of unfair competition, having taken advantage of not just the artistic performance acquired by Capitol but also the popularity of the recording. Recall that the doctrine of unfair competition grew out of trademark rulings in the nineteenth century that prohibited a company from taking advantage of the reputation of a competitor by deceiving customers into associating its own products with another firm’s well-regarded name.28 In the twentieth century, this notion gradually expanded to address cases in which a pirate unfairly profited from the popularity of a recording artist by copying his or her works—as when Wagner-Nichols put out recordings of the Metropolitan Opera without the organization’s permission. While Phoenix had not attempted to pass itself off as Capitol, it did sell a hit by the Lettermen that had not become popular by accident. Justice Wood noted that Capitol had spent $10,000,000 producing master recordings since 1965, and over three times as much to advertise them.29

  Record companies enjoyed an unbroken string of successful litigations in the mid to late 1960s, yet several factors suggest that these were Pyrrhic victories. A lawyer who defended tape copiers on numerous occasions won only one such case, when a South Carolina judge declined to grant an injunction against his clients. Even then, the decision was subsequently overturned on appeal. On at least one occasion a judge in North Carolina forbade a defendant only from copying the plaintiff’s records,30 and the defendant went on merrily pirating music by all the other companies. Meanwhile, the record industry told anyone who would listen that the cases were easy to win but costly to pursue and difficult to enforce. Sometimes the penalties imposed by a court barely deterred an especially prosperous pirate. The Recording Industry Association of America (RIAA) complained to Congress that a pirate was fined only $500 in the case Capitol Records v. Frank D. Campoy, Jr., an amount the offender was able to absorb as a “minor, incidental expense.”31

  The industry watched as copyright reform idled in Congress, courts yielded empty successes, and piracy grew more widespread and flagrant in the late 1960s. Its next strategy was to lobby the state legislatures for measures that would be more punitive than the common law of unfair competition. New York, a center of the entertainment industry, was the first state to pass a law against piracy. Governor Nelson Rockefeller signed the bill, which went into effect on August 2, 1966.32 California caught up with New York by passing its own far more stringent law in 1968. No further state laws appeared until 1971, when Arkansas, Florida, Pennsylvania, Tennessee, and Texas outlawed unauthorized reproduction.33 Of these, only Tennessee and Texas could be described as having a homegrown music industry, and Tennessee’s Governor Winfield Dunn signed the bill in a photo-op, flanked by Nashville music stars.34 The New York law that started it all was among the weakest, at least in its first iteration. Whereas Tennessee threatened pirates with a $25,000 fine and between one and three years in prison for the first offense, New York mandated a $100 fine and up to a year in prison.35 Both forbade “transferring” sounds without the consent of the owner, as well as distributing and selling such sounds.36

  Such a law, of course, presupposes that the owner can be clearly identified. The owner of the sounds could be the performer or the record company, but the state laws seemed to side with the label that produced the original master recording of a performance. During debate over the New York law, the RIAA’s Henry Brief insisted that the record company’s right to its recordings was well established, thanks to the precedents set in the Metropolitan, Capitol v. Mercury and Fonotipia decisions.37 The court in Metropolitan had ruled that Wagner-Nichols had interfered in a contract by making its own records of the Met Opera from radio broadcasts, because the Opera had already arranged with another company to put out recordings of its performances. The Fonotipia decision rested partly on the fact that the public got an inferior product when Wynant Van Zant Pearce Bradley made his own copies of Italian arias originally released by another company.

  It may se
em like a fine distinction, but none of these decisions actually declared that the record company possessed an inviolable right to control how its products were used. Rather, the rulings condemned various instances of copying that were harmful to the public or to the parties in an existing contract, or that otherwise smacked of ill-gotten gains. Though the courts said that one should not reap where one has not sown, they never issued a categorical approval of the notion that the record company, and the company alone, owned the recording. Even if the courts had wished to provide such a right, their ability to do so was constrained by the ambiguity in copyright law. Further, the performers whose sounds were actually contained on the record could also make a persuasive claim for ownership. Indeed, in its report on the bill, the New York legislature’s Committee on Penal Law and Criminal Procedure condemned pirates for failing to pay the proper dues to “the performer or issuing company,” leaving open the possibility that either party could be the owner of the recording.38

  By lobbying for the New York law, the RIAA aimed to have the state legislature decisively endorse its own claim about ownership, which was based on its investment in the product. “Many hours of planning and work and the investment of much capital go into the production of a phonograph record,” Brief argued. “The end result is a combination of artistic skill and mechanical ingenuity.”39 The right to ownership, it seemed, lay in the combination of creativity and capital, courtesy of management. “The master recordings are carried as assets by recording firms,” the lobbyist went on to say. “They have a dollar value, and the rights to use them have been sold, leased, traded and exchanged both domestically and on an international basis.”40 In other words, record companies wanted their de facto property to be recognized as de jure.

  The industry had the labor movement and consumer advocates on its side in this campaign. Max Arons of the American Federation of Musicians expressed his support for the bill to the governor, commenting that his union’s members had been harmed by the growth of piracy.41 Meanwhile, state attorney general Louis Lefkowitz and his staff pushed hard for the bill. His Bureau of Consumer Frauds investigated illicit copies in New York’s record stores and found that some recordings listed a different performer or performance than was actually contained on the disc or tape. In the Bureau’s view, piracy was a problem chiefly because the consumer was deceived into purchasing a low-quality imitation of the official record company product.42

  Opposition to the bill came from two sources: broadcasters, who feared that the ban on unauthorized copies would outlaw the practice of making temporary copies of music to be played on the air, and collectors, who made the perennial argument in favor of copying out-of-print records. In a telegram to the governor, NBC president Thomas E. Ervin warned that making temporary copies of sound recordings was necessary for the everyday functioning of radio and television stations.43 Ervin avowed his opposition to commercial piracy of recordings but urged Rockefeller to veto the bill, unless a provision permitting ephemeral copies was allowed for broadcasters. He maintained that the record industry supported such an exception. Radio disc jockeys sometimes taped programs that blended their own words and sounds with musical recordings to air at a later time, and the broadcasters argued that this practice was harmless compared to the copy and sale of pirate recordings.44

  Record collectors, in contrast, appealed to the ideal of preserving scarce recordings. Representatives from ABC and NBC based their arguments on the practical needs of broadcasting, while the collectors made a broader claim that the public’s right to its cultural heritage overruled whatever ownership that a legislature might permit a record company to enjoy. Like Dante Bollettino in the early 1950s, the New York lawyer and archivist Payson Clark believed that the public should not be denied access to a recording because the company that originally produced it no longer found it profitable.45 “Properties which are gravely affected with the public interest, in which society has artistic and cultural rights of enormous significance (although no one has yet found them materially rewarding to reproduce) are being locked away from posterity out of a misdirected zeal to keep ‘The Beatles’ recording royalties from being diluted,” Clark wrote to Governor Rockefeller.46 “Let us defend The Beatles right to riches, if that pleases the Legislature, but not by forever suppressing the immortal recordings of America’s creative musicians of the 1920’s and ‘30’s whose playing has been felt and heard around the globe.”47

  Clark sounded an alarm that other critics would ring in the years to come, as the scope of property rights inched ever outward. He noted that the ban on copying records conferred on record companies an open-ended right of ownership, whereas federal copyright could only last for a limited amount of time. (The term was a maximum of 56 years in 1966.) “No nation, to my knowledge, confers a PERPETUAL proprietary right in the author or inventor, but rather fixes a reasonable term (sometimes with a renewal privilege which is similarly limited in duration) at the expiration of which the work enters the public domain,” Clark observed. “The grave danger in this proposed New York statute is that it employs criminal sanctions to confer a unique form of aural or audio copyright which is vested in perpetuity in a manner greatly inimical to the public interest.”48

  Several non–New Yorkers also wrote to urge Governor Rockefeller not to sign the bill. A New Orleans lawyer who collected old jazz records, Harry Souchon, apologized for intruding on the internal affairs of another state. He commented on the law, however, because he suspected that “whatever action is taken by the State of New York may well influence similar action in other states.” Souchon commended the intent of the bill—to curb piracy—but said the bill as it was written would be “very detrimental to record collectors in all fields.”49 The collectors argued that the world of the antiquarian had nothing to do with the market for popular music, and that scholars had no interest in profit when they copied and exchanged “obscurities out of the ancient past.”50

  This quest for an exception in the law might have been noble enough, but none of the collectors explained how the state could allow small-scale copying of old records while forbidding commercial piracy. If bootleg labels copied truly obscure music for the most esoteric tastes, would the state or the record companies bother to penalize them? Naturally, the collectors did not want to have their activities classified as illegal, even if they were not actively suppressed. The case of Jolly Roger in the early 1950s raises the real question. One could imagine a system that permitted copying and distribution of music on a nonprofit basis, keeping in circulation records for which no viable commercial market existed. Or, as James Goodfriend suggested in Stereo Review, the government or the libraries could undertake a custom mail-order service on a noncommercial basis.51

  But what if business got too good? What if Blind Lemon Jefferson or Tampa Red’s Hokum Jug Band experienced a renewed vogue with the public, and the small outfits started selling reissues like hotcakes? Undoubtedly, the record company that first released these performances would seek to prove it had the exclusive right to distribute them, if the original label still existed. People could be allowed to copy only those out-of-print records that had been produced by defunct companies, for which no legal claim could be made or copyright holder found—so-called “orphan works.”52 However, the performing artist or his descendants would still have to be considered. Devising a workable system that would satisfy collectors while forbidding commercial exploitation posed many logistical problems, and no one at the time tried to lay out a plan.

  In any case, Henry Brief roundly rejected the arguments of Clark, Souchon, and others. “Mr. Clark charges the record industry with a conspiracy to keep consumers from obtaining out-of-print recordings for their collections,” he wrote to Rockefeller. Record labels were making a good faith effort to provide the public with reissues of old recordings, and Brief insisted that they would sell records if demand for them existed.53 However, if there were no market for such goods, then how could piecemeal reproduction threaten the industry? Cl
ark argued that it was precisely these tiny demographic groups whose desires either could not or would not be met by regular record companies. “The fact remains that the greater number of ancient phonograph recordings can never be made economically available by the few companies dominating the industry today,” Clark proposed. “The demand is too infinitesimal, and the profit is non-existent.”54

  In the end, the legislature disregarded the collectors and placated the broadcasters. Clark and Souchon’s legislative influence was ultimately as inconsequential as they claimed their economic impact to be. Meanwhile, Lefkowitz assured broadcasters that the bill would not interfere with their normal operations.55 The New York bill paved the way for subsequent state legislation, but, more importantly, it established the first clear-cut legal precedent that record companies owned their recordings. Congress had retreated from this position during its consideration of the 1962 anti-counterfeiting bill, preferring to forbid only the mimickry of packaging rather than the copying of the sounds contained on a record. The 1966 law can be seen as a model for the historic act passed by Congress in 1971, which would put to rest the long-running debate over ownership with the force of federal supremacy.

  The Long-Awaited Copyright Reform of 1971

  Despite several close brushes with accomplishment, Congress continued to postpone and procrastinate throughout the late 1960s. The House of Representatives managed to pass a copyright reform bill on April 11, 1967, but the legislation bogged down in the Senate over questions about the new medium of cable television. Senator McClellan (D-AR) kept the bill alive as the Judiciary Committee kept deferring it through the next several sessions of Congress.56 A comprehensive reform still had to wait until 1976. In the meantime, growing awareness of music piracy prompted Congress to separate the issue of sound recordings from many other thorny problems, such as the legal status of cable TV or the price level of the compulsory license for songs. What had been a sluggish and halting legislative process was about to pick up pace in the early 1970s.