Ringer had good reason to be surprised that it all came together in the end. After all, when her career in the Copyright Office began in 1949, a copyright for sound recordings remained an implausible proposition.149 State and federal statutes did not yet provide long-lasting or open-ended property rights for the ownership of creative works, but the antipiracy law of California, the Supreme Court’s Goldstein decision, and the Copyright Act of 1976 cast aside the cautious tradition of limiting copyright protection in the public interest. The political ground had shifted toward an embrace of copyright in the early 1970s; however, the apparent ineffectiveness of antipiracy enforcement, combined with continued anxiety over the nation’s economic health, led to the pursuit of ever-stronger and more sweeping copyright measures, of which the 1976 act was only the most prominent.
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Deadheads, Hip-Hop, and the Possibility of Compromise
In 1978, the Doobie Brothers paid a visit to the Watts high school attended by three of their biggest fans—Raj, Dwayne, and Rerun. The three youngsters were dying to get tickets to the show, a fundraiser for their school’s music program. Unfortunately, Rerun’s perennial weakness for hamburgers distracted him on the way to the ticket line, and by the time he arrived the seats were sold out. The only way the boys would get to hear the Doobies now, Raj told his friends, was by popping a quarter in the jukebox. Music had to be paid for.
There was, however, another way. A seedy gentleman and his muscle-bound friend overheard the boys’ conversation. The men offered to give Rerun and his friends tickets if they agreed to tape the show, and Rerun naively accepted. (As part of the deal, he even got “a professional soundman’s pay for a day”—four dollars!) Later that day, Rerun and his friends managed to finagle an interview with the band. “What’s your biggest problem?” Raj asked. “What gets you the craziest?” The Doobies did not hesitate to answer—bootlegging. In perfect afterschool-special style, they went on to explain to the boys what the word means. “That’s where someone illegally records our concerts and sells it to the public,” bassist Tiran Porter said. “Yeah, what happens is the record company doesn’t make any money, we don’t make any money, and the public gets a pretty bad recording,” said another member. Also, they added, the bootlegger ran the risk of going to jail “for a long time.”1
Rerun was understandably terrified. The boys tried to back out of their deal, but the thuggish bootlegger threatened them. Through a series of comic shenanigans, Rerun’s tape recorder was exposed during the concert, and the Doobies confronted the boys. It turned out that the bootlegger was Al Dunbar, a “low-life” serial pirate who had been taping the band’s shows across the country. The Doobies proceeded to ambush the venal bootlegger, who lived such a lavish existence that he tried to order a filet mignon and a shrimp cocktail at the local soda shop moments before their arrival. In a final irony, the tape Rerun recorded was revealed to consist almost entirely of crunching sounds. Rerun’s appetite got the better of him again. “You mean to tell me I’m going to jail for a long time,” Dunbar lamented, echoing the Doobies, “and all I have to show for it is a tape of a fat kid eating popcorn?” The police took him away. The band and their fans cheered, and there were high fives all around.
Airing in February 1978, this episode of What’s Happening!! was as much a long commercial for the Doobies’ new album as it was a public service announcement about the evils of piracy. As an allegory, the episode portrays both consumers and artists as the victims of a parasitic con man. It casts the bootlegger in the mold of a pimp or drug pusher—an entrepreneur who operates in the shadows, fulfilling a demand in the marketplace that is ultimately harmful to everyone but himself.
The reality of bootlegging in the aftermath of 1970s copyright reform was often less sleazy. Even as the record industry won one new protection after another, people continued to reproduce recordings in a variety of different ways. Some may have been two-bit con artists who dined on filet mignon as they robbed artists and defrauded the public, but many others were simply sharing tapes with friends and like-minded members of underground music scenes. The novelist Nick Hornby, punk musician Thurston Moore, and many others have mused on the cultural significance of personal mixtapes, the individualized assortments of songs recorded on cassettes and shared among a small circle of friends. The word “mixtape” took on a different meaning in the 1970s and 1980s, when hip-hop DJs combined sounds from various records to create a new type of sound collage that gradually became an underground commodity and a vital part of the hip-hop music industry in New York, Atlanta, and elsewhere. Meanwhile, collectors and entrepreneurs continued to bootleg live and unreleased tracks by rock artists, albeit in a less showy fashion than predecessors such as Rubber Dubber.2
Bootleggers raised legitimate questions about whether such copying and exchange really threatened the survival of the music industry. For every commercial outfit seeking to counterfeit mainstream pop at cut-rate prices, there were numerous examples of fans who copied music that did not directly compete with the offerings of record labels. Cassettes were a key means by which punk rock reached new audiences, a medium that allowed an aspiring band to put out its own recordings on the cheap and its followers to spread the word through unauthorized reproduction. Followers of artists as different as Kraut, the Grateful Dead, and Brucie Bee became part of a new distribution structure for music; in the case of hip-hop mixtapes, the artists themselves often pushed records that incorporated their own words and music with sounds borrowed from others, outside the normal conduits of the record business. In doing so, these listeners and artists showed how the industry might accommodate itself to a degree of copying, especially if it could profit from this unpaid promotion. Such a model called into question the necessity of the antipiracy laws that labels and their copyright allies had fought so hard to obtain. Piracy may have persisted in spite of the reforms, but the law still put power in the hands of rights holders. Like the Doobie Brothers, they could decide how vigorously they wanted to pursue pirates—or let Rerun off the hook.3
Tape Trading among the Dead
As in the past, pirates and bootleggers evolved to fit the new legal conditions and persisted in the face of criminal prosecution. The 1962 anti-counterfeiting law led pirates to wrap their copied recordings in new packaging to avoid allegations of “palming off” their knock-offs as the originals. Ten years later, the inclusion of sound recordings in copyright law encouraged pirates to go deeper underground, distributing their goods in less-regulated sites such as gas stations and independent record stores. The 1976 Copyright Act reinforced the effects of the 1971 law, imposing stiffer penalties and giving pirates greater incentives to cover their tracks, but it fell far short of stamping out piracy altogether. While large corporate retailers became more vigilant about keeping counterfeits off their shelves, independent record stores continued to stock bootlegs, and counterfeiting of cassettes continued apace.4
The bootlegging of the 1970s shifted away from the radical sensibilities of Rubber Dubber and Trade Mark of Quality, resembling more the cautious, low-profile copiers of jazz and classical music in the 1950s. Legal scholar Louis Holscher described a “secondary market” of record conventions, mail-order catalogs, and swap meets that catered to collectors and largely evaded the attention of state and federal law enforcement.5 This group of consumers resembled the earlier generation of collectors who recorded and traded copies of hard-to-find jazz records and opera performances within the limits of a small subculture. Greg Shaw, collector, critic, and impresario of the seventies rock magazine Bomp!, remembered a period of interpretation and archiving not unlike the effort led by jazz critics in the 1930s. “The early ’70s was a formative lull in pop culture, a depressing hangover after the previous decade’s wild party, but also a time when the fan network of true music lovers began taking shape, largely via magazines like Bomp,” Shaw recalled. “Esoterica that’s now widely known thanks to garage-psych compilations started to be discovered and classified.�
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Of course, the collectors of this period did not focus purely on the esoteric and obscure. The devotees of Bob Dylan and Bruce Springsteen shared a key quality with the countercultural pirates who flourished in the late 1960s and early 1970s: they trafficked in recordings by popular, bankable stars, and the established music industry still viewed them as a greater nuisance than the jazz aficionados who copied long out-of-print recordings by artists who were lesser known to the public at large. In short, the rock bootleggers of the 1970s combined the aesthetic and musical tastes of the fading counterculture with the business model of the old-fashioned collectors’ market.
Pirates like Jerry Pettus and Julius Kessler, seduced by the easy money offered by a tape deck and a hit record, had come under serious scrutiny by the authorities, but the collector-oriented bootleggers also had their own share of run-ins with the law. Many labels, such as Rubber Dubber, got out of the business before the federal government criminalized their activities in 1972. Numerous others, such as Dittolino Discs, Immaculate Conception Records, Kustom Records, Phonygraf, and Pig’s Eye were also defunct by the late 1970s. The FBI shut down two significant outfits, Wizardo and Hoffman Avenue Records, in late 1976. Wizardo swung back into operation in 1977 but again ran afoul of the law.7 “Legal hassles have been few since our last edition,” the editor of Hot Wacks, a bootleg guide based in Ontario, reported in 1979. “While there were major busts on the east coast for counterfeit records, bootlegs came only under minor attack.”8 The most recent busts rounded up 500 copies of a Beach Boys record called The Hawthorne Hot Shots in California, while the FBI raided a “bootleg warehouse” in New York. Bomp! magazine reported that the Amazing Kornyfone Record Label had folded, but the organization had in fact adopted a common tactic of bootleggers, periodically changing the name on its products to avoid notice. The fact that Kornyfone shed its name—one of the best-known “brands” in the seventies bootleg scene—suggests that it had come under renewed legal scrutiny.9
Publications such as Hot Wacks (founded 1975) and Goldmine (1974) developed a discourse among collectors and bootleggers that mirrored the ideas of their predecessors in Stereo Review and the Hot Record Society’s Rag. One bootlegger, calling himself Harry the Bastard, voiced the traditional complaint of collectors that the industry was trying to prevent them from capturing sounds for posterity. “In the Middle Ages, the church controlled all the artists,” Harry said. “If some work of art didn’t fit in with their religious doctrines, the church would put it away or destroy it. That’s what record companies are doing—destroying history.”10 The writers and readers of these periodicals viewed collecting as a way of documenting the past and honoring the output of the artists they revered. While not all agreed on the legitimacy of bootlegging—“Ban Bootlegs From Record Shows!” declared Goldmine in 1991—the illicit market made rare and unreleased recordings available to fans who did not believe they were hurting the artist by purchasing them.11
Supporters of bootlegging always drew a bright line between their activities and the profit-seeking efforts of pirates. “Collectors often suffer the injustice of having all illegal recordings labeled as ‘bootleg,’ but this fails to take account of crucial differences of production and consumption within the sphere of ‘piracy,’” says Lee Marshall, a scholar who has written extensively on the culture of bootlegging. Pirates and counterfeiters copy popular recordings to take advantage of the music industry’s business, while bootleggers, he argues, do not directly compete with the products sold by record labels. “The vast majority of this officially unreleased material contains either recordings of live concerts or ‘outtakes’ (studio recordings of songs which did not make it onto finished albums, or alternative versions of songs that were released),” Marshall says.12 Similarly, Hot Wacks maintained that bootlegs were different from pirate or counterfeit records, since the so-called “underground record” documented such ephemera as concerts and radio and television performances.13
Bootleggers, then, claimed that they made more music available to the public without impinging on the music industry’s bottom line. Hot Wacks chose the soundtrack of The Sound of Music—a massive hit that sold over ten million official copies—as its example of a counterfeit, highlighting the distinction between a pirated mainstream product and the alternative fare preferred by bootleggers. Such counterfeits directly hurt the established companies by fooling consumers into purchasing a nearly identical knock-off instead of the official release. Most importantly, Hot Wacks argued that bootlegging did not contribute substantially to the $200 million a year in losses claimed by the RIAA in the late 1970s: “Bootleg records, with an average run of 2,000 copies, should not even be included in this figure as the record labels do not lose revenue on a record which is not their catalog.”14 The economists Alireza Jay Naghavi and Günther G. Schulze lend tentative confirmation to these claims in their study of the economic impact of bootlegging, suggesting that bootlegs are not substitutes for officially released albums. “It is neither clear that they are cheaper,” the economists suggest, “nor that they crowd out official sales.”15 According to this view, the typical purchaser of a bootleg is a fan who also buys all the official releases by his favorite artist, thus causing no direct financial damage to the performer or the record company.
Some musicians considered recording by fans to be harmless. The trading of concert tapes helped spread the word about many musicians in the punk movement of the 1970s, lifting the fortunes of Patti Smith and the band Television in particular.16 British punks the Buzzcocks reportedly knew of the Times Up bootleg and even owned a copy; they did not inform the authorities, but the British Phonographic Industry trade association took action against the pirates. “I’d like to have some kind of royalty from bootleggers,” the manager of singer-songwriter Elvis Costello conceded in the late 1970s. “100 albums wouldn’t be a lot to ask. But it’s the record companies who stand to lose most out of it—which tells you something interesting about the whole record industry.”17
Figure 6.1 This mid-1970s recording consists of live performances by the punk artist Patti Smith. Released on the label Ze Anonym Plattenspieler, it illustrates how bootlegging persisted after the passage of federal copyright protection for sound recordings in 1971. Source: Courtesy of Music Library and Sound Recordings Archive, Bowling Green State University.
Most notoriously, Bruce Springsteen openly endorsed bootlegging early in his career. For example, when “the Boss” became entangled in a contractual dispute that prevented him from making new recordings, he took to the stage to deliver his music to the public. He arranged to have five concerts aired on the radio in 1978, in hopes that the music would be recorded and circulated among his fans nationwide. On stage, Springsteen celebrated “the magic of bootlegging” for making his music available to fans, and one night he even called out, “Bootleggers, roll your tapes, this is gonna be a hot one!”18
Springsteen initially viewed concert recordings as a matter of fans’ devotion. “You find out most of the time that, number one, they’re fans,” he told an interviewer in 1978. “I’ve had bootleggers write me letters saying, ‘listen, we’re just fans,’ that’s their story.” At this stage in his career, he also subscribed to the theory that bootlegs did not reduce overall sales because they appealed primarily to fans who would buy his official recordings: “The kids who buy the bootlegs buy the real records too, so it doesn’t really bother me. I think the amount of money made on it isn’t very substantial. It’s more like a labor of love.”19 Springsteen was a fair-weather friend of the bootleggers, though, eventually coming to resent the appropriation of his work. Just a year later, Springsteen and his label sued Vicky Vinyl, a legendary bootlegger in California, for copyright infringement and a host of other offenses, including illegally using his name and likeness.20 He later told Rolling Stone that “in some way, the song is bein’ stolen,” expressing indignation at bootleggers who made big profits from albums with poor sound quality. His staff continued to work
with the RIAA and legal authorities to pursue charges of copyright infringement in the 1980s and 1990s.21
The Grateful Dead provides perhaps the best-known example of a popular group that accepted bootlegging and even incorporated it into its way of doing business, much as Springsteen attempted to harness unauthorized reproduction with his radio shows of 1978. The “Deadheads” who followed this quintessential jamband around the world devoted themselves to capturing every trace of the group’s meandering improvisations, night after night. Their zeal for documentation recalls the classical copiers of the 1950s and 1960s, who yearned to record the subtle nuances of each unique performance of a beloved opera singer, just as jazz fans valued every iteration of a composition by a virtuoso musician as worthy of preservation. “The Dead … is a compilation, every night, of every show that went before,” taper Dan Hupert averred. “Without a tape, what they played in Laguna in ‘68 is nothing more than past history.… If you see two shows a year, or five, or seven, they are individual concert experiences. If you see twenty-five and listen to tapes of most of the others, it is no longer an individual experience or a set of them. It is a continuing process.”22 This mode of perceiving the band’s work—hearing it live, listening to and comparing the tapes—would be impossible without the creation of an ongoing record of the music.
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