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

by Alex Sayf Cummings

  By the 1990s, mixtapes became more than a vehicle for DJs to show off their talents. The genre also became a tool for aspiring rappers to distribute their own work on the streets in the absence of a record deal, or for enterprising DJs to leverage their own personal connections and marketing savvy to act as cultural arbiters within the hip-hop scene. DJ Clue was among the first to distribute “mixtapes” in the form of CDs in the early 1990s, and his knack for delivering the newest, most sought-after music became a model for future mixtapes, as much a showcase for cutting-edge music as for DJing virtuosity. Some artists suspected that Clue maintained his competitive advantage by sneaking a digital audiotape (DAT) device into studios and capturing the music before it was even released. Clue used his connections with sound engineers and industry insiders to get new recordings before anyone else. DJ Kay Slay admitted to finding the “grimiest intern” at a label, who was so underpaid that he would provide Slay access to fresh music in exchange for $75 or $100. “I had one of these at every label,” Slay said in 2005.81 DJs like Clue and Slay followed in the footsteps of 1960s bootleggers, who tried every method of persuasion, including bribery, to obtain unreleased recordings from stars like Johnny Cash and Leonard Cohen.

  Such tactics violated copyright law, since DJs rarely cleared the use of sound samples on the tapes with the owners of the recordings, but in time, successful DJs like Funkmaster Flex began releasing official mixtapes through established labels. Flex’s 1995 The Mix Tape: 60 Minutes of Funk was among the first DJ compilations released as a legal mainstream product, consisting entirely of borrowed sounds from other rappers. The recording resembled the sonic pastiche he furiously constructed on air for Hot 97, a New York radio station, including freestyle raps by Erick Sermon and Busta Rhymes alongside a single by Yvette Michelle, a singer whose career was cultivated by Flex.82 The DJ was partly a promoter, plugging himself and pushing new artists like Michelle. He also served a kind of variety-show host, appearing occasionally to comment on the proceedings and introduce artists, who praised the master of ceremonies in their lyrics: “1996 in your ass, Funkmaster Flex, compilation freestyle album, in your ass, we got lyrics for years for all you fuckin’ peers,” Redman and Method Man free-associated on one track. “Who’s that nigga smokin’ buddha on the A train? It’s the Funkmaster Spock rock the spot.”83

  Kid Capri, Funkmaster Flex, and others began producing legally acceptable recordings like The Tape and 60 Minutes of Funk in the 1990s, but DJs continued to release mixtapes in the same informal fashion as ever. Many rappers coveted a spot on a popular DJ’s tapes, freely volunteering their work in order to reach a large audience. Mixtapes also offered an alternative path of distribution and promotion for artists without record label deals. Jadakiss remembered being in awe of DJ Clue’s prestige: “We used to sit around the house and listen to Clue tapes and be like, ‘He’ll call us one day.’ So we sat and sat and sat and waited. Eventually he called.” Both DJ Clue and Jadakiss’s group, the LOX, vaulted to mainstream success on the strength of their mixtape fame. As Shaheem Reid notes, the popular rapper 50 Cent’s “debut” Get Rich or Die Tryin’ was probably his twentieth album in circulation when Aftermath Records released it in 2003. Cent had already put out numerous mixtapes with titles like 50 Cent Is the Future on the street, striving to build his reputation. He even inked a deal with Columbia Records in 2001, but the label stopped returning his calls when it learned that he had been shot nine times. He then turned to the informal arena of the streets to make his comeback and land another deal. He stood outside radio stations with business partner Sha Money XL, trying to get their mixtapes played on the air, and in time they were.84

  Soon after, 50 Cent became one of the most commercially successful recording artists of the early twenty-first century, a clear example of the trajectory from mixtape obscurity to mainstream fame. No less an arbiter of conventional wisdom than USA Today declared in 2006 that 50 Cent helped bring mixtapes to the attention of the mainstream. “The often unlicensed and frequently bootlegged collections of exclusive advance tracks, hot street jams, diss songs and freestyles—available for sale via the Internet, small retail shops and street vendors, or as free downloads and file swaps—aren’t just for hardcore fans anymore,” Steve Jones reported.85 Though technically infringing copyright, the bustling trade in bootleg sound collage served as a useful complement to the official record industry—a sort of disorganized minor leagues for cultivating talent. “You run the mixtape game, you have a chance at the mainstream industry,” the rapper Jedi observed in 2005.86 The medium provided an alternative network for new performers to introduce themselves to listeners and build their reputations, forming what media scholar Jared Ball calls “an African American underground communication and press.”87 As Ball points out, mixtapes occupied a peculiar place in the music industry, perceived as a threat by record labels that also stood to benefit from the artists who emerged from the mixtape scene.88

  In the new millennium, hip-hop continued to be a participatory medium, a stratified market, and an arena for unpunished piracy. When Ball spoke of mixtapes as an “underground press” he perhaps consciously evoked the political rapper Chuck D’s 1990 description of rap music as “a CNN that black kids never had.”89 Similarly, DJ Red Alert referred to mixtapes as “underground radio on tape” in 1994.90 Anyone with a tape deck or CD burner could become a de facto record label, and the recording industry found ways to take advantage of this spontaneous activity, in much the same way that major labels learned to pluck the most successful rock bands from independent labels.91 While police sometimes raided stores that sold mixtapes, the RIAA considered outright piracy a much higher priority. “We try to focus most of our attention at the higher levels of distribution before it gets to retail,” the group’s antipiracy czar said in 2006. “We leave it for the most part to local police to enforce state laws.… We have trained police in terms of what to look for.”92

  In a way, the exuberance of the mixtape culture in the 1990s and early 2000s pushed back against the legal regulation of mainstream hip-hop. Siva Vaidhyanathan decried the effect of copyright enforcement on rap music in his 2001 book Copyrights and Copywrongs, documenting how the threat of litigation forced rappers and their labels to obtain costly copyright clearances from rights owners for the sound samples they used in constructing new tracks. “The legal implications of sampling has created a subsidiary industry within rap, fattening the pockets of lawyers, older artists, defunct labels, and sample clearinghouses, who conduct the actual busywork of acquiring rights and negotiating fees,” journalist S. H. Fernando observed in 1994. “It has also meant that, in the studio, artists do not have the carte blanche to create as freely as they once did.”93 The formerly freewheeling collage and pastiche of hip-hop ran up against a high wall of rents paid to the established industry when rappers signed to major labels and reached mainstream audiences, but DJs in the informal mixtape market blithely disregarded the procedures of copyright compliance, slapping together old beats with the words of new artists and disavowing involvement in the commercial reproduction of their creations.94

  But the meaning of the DJ’s work as a cultural impresario remained open to interpretation. As a gatekeeper to commercial success, a well-regarded DJ wielded power not unlike that of a record company; like a record executive, DJs profited from music recorded by others, exploiting everyone from the much-sampled funk musician James Brown to the aspiring rapper who wanted to have his music exploited. A hip-hop producer could make a career out of collating and rearranging recorded sounds, winning awards, ad revenue, jobs on the radio, and prestige.95 He became like the curator at a famous museum; in this way, his work mirrored the appropriation art of Richard Prince and others, who rose to prominence in the 1970s and 1980s by collecting things—photos from biker magazines, cigarette ads, pulp magazine covers—and simply putting them on display.96

  The musician and theorist Ian Svenonius argues that, like the appropriation artist, the DJ’s skill was not
making a new expression but simply choosing among goods, in this case recordings. His work resembled “the new role of the bourgeoisie as stockbroker/trader/designator-of-worth and handler-of-commodities,” Svenonius declared in his 2006 polemic The Psychic Soviet.97 For Svenonius, the traditional recording artist was the counterpart of the industrial worker, an iconic figure of the twentieth century who superseded the individual craft of the painter or sculptor through the power of mass production. By the end of the century, he suggested, the DJ was pushing out the rock star or singing sensation by removing labor from the equation entirely. He became the ideological and artistic equivalent of the financier, the reigning king of a deindustrialized America: “Like the rulers on Wall Street, he has no actual talent except to play with other people’s labor. His talent is his impeccable taste and his ability to turn junk into gold, like his stockbroking masters.”98

  The DJ’s defenders would no doubt agree—the young people who first assembled the bricolage of hip-hop in the Bronx did indeed “turn junk into gold.” As apartment buildings burned and drugs, poverty, and violence wrecked lives, New Yorkers of the 1970s seized on whatever tools were available to create a billion-dollar industry. At the same time, hip-hop reflects a broader aesthetic of appropriation that characterized American culture in the late twentieth century, from the exhibitions of the Museum of Modern Art down to the derivative remakes of films, TV shows, and comic books that stream out of Hollywood. The question here is how an unregulated, informal aspect of that culture—bootlegging—related to the whole. Constructing a mixtape required more creative input than recording a rock concert or making identical copies of commercially released albums, since the DJ cleverly selected and juxtaposed parts of different recordings in the mix, creating a new kind of composition. They put a personal stamp on what they assembled, to a greater extent than the rock or jazz bootlegger who designed the packaging of a live recording. On the other hand, producing and selling a mix of other people’s sounds was far less permissible under American copyright law than recording and trading tapes of the Grateful Dead, even though some rappers wanted their music to be bootlegged, as did the Dead.

  The partial tolerance of jamband tape trading and the mixtape market suggests a modus vivendi could exist among artists, fans, pirates, and the record industry. So long as it did not directly cross the path of the established labels, music copying was a peripheral—sometimes even helpful—nuisance. Record companies had looked on with indifference when the Hot Record Society copied and distributed out-of-print jazz recordings in the 1930s, yet the greater popularity of Jolly Roger and other labels elicited legal retaliation in the early 1950s. Likewise, mixtapes have served as a practical adjunct to the official industry, at least until the trade gets too big. Concert bootlegs and mixtapes can stimulate sales of officially released products for rock bands, rappers, and their labels. Devoted fans with disposable income will buy the “real” CD, concert tickets, and merchandise while illegally downloading unreleased tracks or buying a DJ’s remix on the street.

  The mainstream industry reaped the benefits of the buzz generated by mixtapes for its artists, but it did not hesitate to crush competition from petty capitalists like DJ Drama, who was arrested in Atlanta on racketeering charges for selling his Gangsta Grillz mixtapes in 2005. At the time, the trade publication Billboard Biz acknowledged the industry’s dilemma in a throwaway line, noting that the arrest “calls into question whether major labels will continue to utilize mixtapes as promotional tools.”99 The mainstream record companies could not decide whether mixtape DJs were their competitors or informal partners. When Def Jam and other labels leaked MP3s of vocal and instrumental tracks before an album’s release, they implicitly encouraged DJs to circulate the music. The labels also benefited from DJs doing the work of their own artist and repertoire (A&R) agents, who traditionally found and signed promising new talent. Mixtape success signaled which rappers and DJs would be successful in the mainstream. As one rapper put it, for music to succeed, “You gotta get some opinion from the streets.”100 The mixtape trade thus became a valuable source of the “collective intelligence” described by Italian autonomist thinkers such as Franco “Bifo” Berardi and Tiziana Terranova, because companies could exploit street buzz as a type of market research.101

  Although the industry still turned often enough to the copyright cudgels it had won since the 1970s, some artists and businesses accepted unauthorized reproduction as a fact of life, especially where profit could be made from the publicity generated by a popular mixtape, file sharing, or word-of-mouth. Spell My Name Right, the title of a 2008 official release by the rapper Statik Selektah, an alum of numerous mixtapes, hinted at the underlying principle, evoking a classic saying by Broadway impresario George M. Cohan: “I don’t care what you say about me, as long as you say something about me, and as long as you spell my name right.”102 Distributing mixtapes was not unlike plugging in the early twentieth century music industry, when song publishers wanted their tunes to be widely and freely performed in public to drive up sales of sheet music.103

  Such a model does not work so well when piracy in developing countries is concerned. With a few exceptions, American artists and businesses cannot expect to piggyback profitably on the unauthorized copying of their products abroad. Poor consumers who buy bootleg CDs and DVDs in Asia do not necessarily have the ability or the opportunity to buy a concert ticket or officially licensed merchandise; they buy the recording at a price they can afford, perhaps a tenth of the price charged in the United States. Global piracy served as the latest intellectual property panic in the 1980s and 1990s, presenting an adversary that seemed even more intractable and potentially fatal for America’s entertainment, fashion, and technology industries than the homegrown pirate.

  || 7 ||

  The Global War on Piracy

  Reporter: What do you think of secret recordings?

  Cynthia Hawkins: It’s a theft, a rape. I despise them.

  —Diva (1981)

  A celebrated opera singer, Cynthia Hawkins was notorious for her refusal to allow herself to be recorded. “Music comes and goes,” she told a gaggle of reporters. “You don’t try to keep it.… Commerce should adapt to art.” However, commerce was about to force the artist to adapt instead. An earnest young fan, Jules, managed to sneak a tape recorder into Hawkins’s Paris performance, creating a bootleg for his own personal pleasure, but a shadowy syndicate of Taiwanese record pirates was bent on obtaining the tape. They planned to use it to blackmail Hawkins into signing an exclusive recording contract; otherwise, they would pirate the performance and break the singer’s career-long embargo against the market. Hawkins’s manager, Mr. Weinstadt, had tolerated the unusual path she had chosen to take in her career, but his patience was running out. Since Taiwan had not signed on to international copyright agreements, there was nothing Hawkins could do to stop them. “They have us by the throat,” Weinstadt said. “They use the recording to print a record in their country. They flood the market, with no guarantees on the quality and no profits for us.” He understood her “scruples,” but he also demanded that she act like a “responsible artist” and start recording.1

  Though fictional, the story of Jean-Jacques Beineix’s 1981 film Diva perfectly encapsulates the conflicts of art, technology, law, and commerce that characterized the world economy in the early 1980s. Hawkins stood against the forces of new media, clinging to the conviction that a performer should be able to set the terms of how her work was experienced. She refused to let any record company, bootlegging fan, or pirate take advantage of her voice, yet the film suggests that such control was nearly impossible.

  Beineix presented a world in which almost any cultural good was free for the taking, and he contrasted various types of theft to make the point. In one scene, a young woman slips an LP into her art portfolio and evades the watchful eye of a record store clerk. Later, she gives Jules a pilfered Rolex watch, prompting him to ask, “Do you steal a lot?”—even as the bootleg re
cording that he, in a sense, stole from Hawkins plays in the background. Is taking an LP from the record store shelf worse than taking the singer’s voice from the concert hall without her permission? Given the technological capabilities of tape recorders and personal computers, is there any way to prevent someone on the other side of the world from copying one’s work, and is there any limit to the amount of that work in circulation? As Weinstadt suggested, the market resisted any regulation of quality or quantity; it enforced its own will upon artist and listener alike.

  So far, the story of music piracy in the United States has involved a variety of individuals and groups who advanced different rationales for how recorded music ought to be produced and regulated. Record collectors wanted to distribute copies of old and out-of-print recordings, and fans of opera and rock and roll captured concert sounds that otherwise would never have been fixed in a physical form. In decade after decade, record companies lobbied to pay the lowest possible royalties for the songs they recorded, while seeking protection from slippery enterprises that copied and sold their recordings without permission. Meanwhile, those enterprises devised ingenious legal strategies to justify repackaging another company’s sounds as their own—whether Wynant Van Zant Pearce Bradley’s off-brand arias in the early twentieth century or David Heilman’s mixtapes in the 1970s.