Democracy of Sound (3 page)

The flamboyance of the bootleggers, though, came at a price. States and then the federal government granted unprecedented protections to recordings, as composers, musicians, and labels united against the common foe of rampant piracy, a battle that unfolds in
chapter 5
. The Supreme Court offered its endorsement of the new property rights, which in many cases went well beyond anything previously passed and arguably impinged on the limitations of copyright set out in the Constitution.
Chapters 6
and
7
bring the story into the 1970s and 1980s, as pirates in the United States adapted to a newly hostile legal climate, developing new networks of production and exchange. New genres such as jam music and hip-hop challenged ideas of ownership, and piracy reached epic proportions in the developing world.

The reaction was both predictable and paradoxical. “Intellectual property,” a relatively novel term in the 1970s, became the subject of organized political pressure, as the Reagan and Clinton administrations embraced copyright as an issue in trade negotiations. Laws became more punitive, yet piracy remained nearly as pervasive as ever, even as new technologies (such as the compact disc) were introduced to stem the problem. People continued to tape, pirate, and exchange. The advent of widespread Internet access paved the way for the compressed audio file (most prominently, the MP3) in 1993 and a new era of unconstrained panic and lawlessness with the rapid rise of the file-sharing network Napster.

In the early twenty-first century the public continues to flout the demands of copyright interests to control how their products are produced and distributed, but new businesses have emerged that attempt to reconcile the yen for free
culture with property rights. YouTube, for instance, permits users to circulate a recording of the same Jimi Hendrix concert that a bootlegger might have sold in the early 1970s—at least until a record company or other media conglomerate asks that the clip be removed. A great deal of music and video ends up available online anyway, allowing for a degree of unauthorized reproduction to occur within a for-profit context. Rights owners get to exercise a veto on their work being reproduced; fans get to share work that may not be available anywhere else, such as an old TV clip from the 1970s; and Google, the site’s owner, makes money off both the music and the efforts of the fans who upload, remix, and mash up the material. The model is not without its critics, of course. Media conglomerate Viacom sued YouTube in 2007, for example, accusing the service of enabling flagrant and widespread copying of its television shows, movies, and music.
¹⁴

YouTube may herald a new era in which companies like its parent Google replace record labels as the intermediaries who profit from artists’ work. If so, it might be a case of “new boss, same as the old boss”—or even “worse than the old boss,” as musician David Lowery warned in 2012.
¹⁵
Regardless, media like YouTube and Facebook domesticate an impulse to share and use music that Napster once harnessed, that bootleggers have catered to since the 1890s, and that copyright interests have fought almost as long. This communal element of culture—the part that says, “this is here for everyone,” not for the artist, not for business, not for myself—is visible in the captions of videos on YouTube:

“taliban song”—toby keith God bless our troops! do not own any of the material. made for the enjoyment of others.
¹⁶

Bonus track on the Whatever and Ever Amen album by Ben Folds Five. I like the feel of this song, so enjoy. (No copyright infringement intended, whatsoever)
¹⁷

Toby Keith and Ben Folds Five recorded songs in a studio, which fans have now uploaded to YouTube with only a still image to accompany them. Essentially, the upload is a copy of the sound recording and nothing else. The sounds are distributed online and issue from potentially millions of computer speakers, but “no copyright infringement [is] intended, whatsoever.” The contradiction between this desire and the rights of artists and businesses lies at the heart of this ongoing history.

PART ONE
THE BIRTH AND GROWTH OF PIRACY, 1877–1955

|| 1 ||
Music, Machines, and Monopoly

Music lends itself to reproduction. A musician composes a song by fumbling for the right chords, and then transcribes the sequence of sounds as notes and words on paper. The written composition is of little use unless someone brings it to life. The performance is then captured as a sound recording, which can be reproduced on a massive scale and replayed again and again. Other performers cover the song made famous by the original artist, making their own copies of the underlying musical script. Later on, musicians take fragments of the recorded performance and incorporate these samples into new electronic works. When I download the song from an online file-sharing network, my computer makes a new copy of the recording in a folder for the music player iTunes, as well as a separate copy in the “shared” folder that provides access to the file for other searchers online. As a music publisher complained early in the twentieth century, “Cheap music is more easily copied than a book or any other work of literature.”
¹

At each step, a new and different version of the original music is created, whether a performer’s recording of a composition, a cover artist’s reinterpretation of another recording, or the digital file extracted from a compact disc. The fact that one piece of music can be split into written symbols, mechanical sounds, and multiple interpretations has caused many headaches for those who have tried to figure out who owns the scripts and vibrations. Consumers, entrepreneurs, lawmakers, and musicians grappled with this conundrum, as the technological means of reproducing music grew increasingly numerous and complex over the course of the twentieth century. From the first mechanical reproductions of music in the 1870s to media as different as magnetic tape and the Internet, locating the author of a musical creation—or the owner of a musical commodity—has proven difficult.

What counts as music, and who should be able to control it? Is it the idea of a melody, the written composition, the live performance, or the inscription of a performance on vinyl, tape, or disc? Should the songwriter, performer, or record
company have the exclusive right to control the production of a sound recording and benefit from selling copies of it? For much of the twentieth century, legal authorities could not answer these questions, and federal copyright law actually held that no one owned the recording itself once it was published. Under a system established by Congress in 1909, the songwriter (or the publisher who held the rights to a song) could choose to license the first mechanical use of a composition, but any subsequent renditions were beyond the copyright holder’s control. The composer would receive a flat royalty for each copy made of a recording of the song, but that was all. And, until 1972, the producers of mechanical copies of music, such as long-playing (LP) vinyl records, piano rolls, or wax cylinders, could not copyright their products.

Throughout this period, Americans weighed musicians’ and companies’ interest in controlling the products they created against the public’s interest in having uninhibited access to music. During the Progressive Era, Congress feared that the recording industry would be consumed by monopoly and favored protecting the public domain over strengthening property rights. Courts subsequently wrestled with the dilemma of how to respect the value that artists and entrepreneurs had invested in recordings, even though lawmakers had explicitly excluded any such consideration. As usual, attention to copyright surged upon the introduction of popular new forms of communication. As media such as the phonograph and radio became familiar to American society in the early twentieth century, judges and legislators had to grapple with the ways various technologies affected the rights of copyright owners. Many of the new gadgets, whether a paper piano roll or a shellac disc, involved the reproduction of sound, and mechanical reproductions provoked some of the most heated debates about the proper assignment of rights. The earliest cases sought to mark the line between the copyrightable music and the machine that conveyed it; once the Copyright Act of 1909 provided an ingenious way of drawing that line, courts faced new questions about whether or not record companies (and, in a related case, a news agency) had any right to prevent others from copying or otherwise exploiting their works.

The Machine That Talks, Sings, and Steals

One year before Edison first etched a sound pattern on tinfoil in his New Jersey lab, the playwright Griffin Hall penned a curious skit called
The Bogus Talking Machine, or the Puzzled Dutchman
. In this 1876 “Negro Farce,” a sly professor named Stanley fools a circus owner named Martello into giving him $5,000 to build a machine that talked. Stanley gets Pete, a black boy, to sit inside a box and talk. The boy is reluctant at first, noticing that the box says COD. “You can’t sell
dis chile for any codfish,” he says.
²
Stanley explains that he will pull one string for the boy to whistle and another for him to holler. Pete wonders why the professor’s head “is like a poor man’s pocket,” but he complies. Both Martello and his servant, the Dutchman, are terrified by the talking box, the latter so much that he cries out for “lager bier und sour krout.” Pete claims to be the devil, as if the machine were possessed by an evil spirit. “Oh! Blease, Mr. Debil, don’t dake me,” the Dutchman implores. “I vill gi you mine frow, mine beer, mine money, mine grout, and mine everytings.”
³

For Griffin Hall, a talking machine would be a machine that mimicked a human being, but the boy in his play merely imitated such a machine. The professor assumed that a machine that could reproduce the sound of human communication, and even interact intelligently with humans, would evoke wonder and fear in others. His talking machine was an agent of deception, a recurrent theme throughout discussions of sound reproduction.

In fact, the early history of the talking machine was full of imitators, copycats, and frauds who reproduced the recordings of others for sale on the disorderly market of the late nineteenth century. The disarray in the industry resulted in part from uncertainty about which recording format would prevail and what uses would be made of multiple new technologies. Would consumers buy a wax cylinder machine to make recordings in their homes and offices, as Thomas Edison predicted? Would they purchase records to listen to stories or music? Like the boy in the box, the sounds inscribed on early phonographs simply provided the aural content for a physical object, engraved on the surface of a wax cylinder only to be wiped away and replaced by the traces of other sounds.
What
the talking machine said mattered less than
that
it spoke and, perhaps, how well it spoke. Record manufacturers tended to emphasize the technical quality of their mechanical reproductions rather than the musical or literary performances contained in them. The bawdy stories, tinny songs, speeches, and jokes were often brazenly appropriated by competitors as the market for recorded music gradually took shape, and phonograph companies—largely consumed by patent battles involving the technology of recording itself—devoted little attention to asserting rights to the performances contained on their products.
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A few firms did move to protect the value of the performances they recorded and sold in the first decade of the twentieth century; Emile Berliner, for instance, sued New York’s Standard Talking Machine Company for violating his patents in 1898 and subsequently sought an injunction when several of the company’s leaders went on to copy Victor recordings through the American Talking Machine Company in 1904.
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The Bogus Talking Machine
is also a reminder that, in the earliest days of recording, the “talking machine” was just that—a vehicle for human speech. Edison initially conceived of his invention as a tool for capturing ordinary voices
as much as singers or musicians; the original impetus for the phonograph had been his desire to record messages sent over the telephone.
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The early avatars for sound recording were characters associated with speech. The most iconic, the little white dog named Nipper, has defined the Victor image up to the present day. Nipper also bequeathed to the world “His Master’s Voice,” a slogan that became synonymous with Victor—even though the phrase has been completely severed from its original context. The image was based on a painting by the brother of Victor pioneer Eldridge Johnson, in which Nipper listens to a wax cylinder recording of his owner’s voice. The dog looks rapt and attentive, as if his master were standing right there. The cylinder, of course, could be recorded on and could indeed have contained a reminder made by the pet’s owner. When Victor adopted the image of the dog, the cylinder was replaced with a disc phonograph, a medium that did not allow consumers to make their own recordings. Unless the dog belonged to a recording artist like Enrico Caruso, it was unlikely to feature the actual voice of his master.
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Soon after, the Ohio Talking Machine Company not only copied Victor’s phonograph patents but also used a wry variation on the company’s trademark image. The outfit at first placed a shaggy dog next to its phonograph, above the slogan “Familiar Voices.” In 1904 the company’s Talk-O-Phone brand swapped the dog for a parrot, an animal better known for talking than singing, and Ohio soon dropped the “Familiar Voices” slogan in favor of “Learning a Few New Ones.”
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Another pirate, Zon-O-Phone, used the slogan “On Speaking Terms,” and pictured a child leaning into a phonograph much like the attentive Nipper.
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Like “His Master’s Voice,” the slogan implied an interpersonal relationship with a machine that did what no other could—talk.