Democracy of Sound (8 page)

Corporations had secured ground for their ownership of news and sound recordings, or at least for some of their qualities. At a time when companies were building large, complex organizations to report wartime news or to manufacture and distribute recordings around the world, these decisions opened a path for businesses to own information outside of copyright law. More important, these decisions meant corporations could own something more abstract: the “hotness” of news, or the bankability of a star performer. Struggles over sound recording and copyright broke out at precisely the moment when nascent media giants like Victor were staking out territory in the public sphere through advertising. Victor, in particular, became known as one of the most aggressive pioneers in the use of modern advertising.
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The reputation of its highbrow Red Seal line of records or its stable of opera stars was expensive to create yet cheap for others to exploit, just like the value of news gathered by the AP in Europe. The legal successes of these companies anticipated later high-stakes conflicts between those who made everything from records and phonebooks to lampshades and video games, and others who would copy them.
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Such steps remained tentative in the early twentieth century, though. Copyright was still constrained by doubts about monopoly and the uncertainty that surrounded evolving technological and cultural forms. Decisions like
INS
reflected a Progressive Era predilection for limiting the control of information. In his dissent, Justice Louis Brandeis voiced these concerns. “The creation or
recognition by courts of a new private right may work serious injury to the general public,” he wrote, “unless the boundaries of the right are definitely established and wisely guarded.”
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The coming decades would provide numerous opportunities for songwriters, musicians, entrepreneurs, and listeners to argue about how best to bound and guard those rights. How much should a company’s investment be protected? How far could courts extend the ownership of expression before straying into Congress’s territory? Although the
Fonotipia
ruling condemned copiers who put out an inferior product, shady dealers continued to furnish secondhand records in the shadows. The rise of a collecting culture among music fans led to the copying and exchange of records that were out-of-print or otherwise unavailable, and the emergence of radio as a medium threatened the revenue of music publishers and record companies even as it furnished the public with a new source of “free” sound.

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Collectors, Con Men, and the Struggle for Property Rights

The boundaries between legitimate and illegitimate, real and fake, original and copied continued to be fuzzy at times. Congressional reform had denied record companies copyright protection for their products, yet the
Fonotipia
decision seemed to condemn unauthorized copying of recordings. Into this legal confusion a whole host of characters made their moves—industry wheeler-dealers, record collectors, radio stations, musicians’ unions, bootleggers, even the Mafia—all with their own ideas about how sound recordings ought to be produced and exchanged. Collectors believed the public had a legitimate interest in keeping recorded music in circulation, and bootleggers stood ready to supply the demand if the major labels failed to do so. Meanwhile, radio posed a new set of challenges; unions believed that musicians should own the rights to the recordings they produced, or at least benefit from royalties when the records were played on the radio. Record companies could not decide whether broadcasters unlawfully reproduced their products or helped promote them, as some stations sold bootleg disks of the performances they aired.
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The legal status of recorded sound remained in flux.

The career of Eli Oberstein reveals how some in the music business played fast and loose with recorded sound in the mid-twentieth century. Oberstein had been a colorful producer and executive at RCA Victor in the 1930s, helping to launch the recording careers of Artie Shaw and Glenn Miller.
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Upon his abrupt departure in 1939, Oberstein started his own company, the US Record Corporation, which sold cheap recordings under the Varsity label. Oberstein’s ambition to bring numerous artists along from RCA Victor faltered, but he still managed to get records on the shelves by reissuing old recordings from labels such as Crown, Gennett, and Paramount, seemingly by copying from commercial recordings rather than the original masters.
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Scholars disagree over whether Oberstein obtained the proper legal permissions to sell the records, but the murky origin of many such bargain-bin discs
only exemplifies the career of an entrepreneur known for working along the edges of the law. Howls of “bootlegging” arose when Oberstein mysteriously managed to keep churning out records during a major strike by the American Federation of Musicians (AFM) in 1942, though the records were credited to unknowns like Johnny Jones. “It’s very simple,” Oberstein said, “I pick up any tune I like, and the records just come in.”
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Oberstein claimed that he dodged the restrictions of the strike by recording in Mexico, although many suspected that he was, in fact, recording in New York hotel rooms with amateur musicians and willing strikebreakers. In this context, “bootlegging” meant defying the strike by making new recordings, rather than copying other people’s records.
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Oberstein’s tactics continued to stir controversy in the industry until his death in 1960. In some cases, Oberstein relabeled a recording with the name of a made-up artist, attributing a blues tune to “Sally Sad” or “Big Richard.” Although the names can be dismissed as inane, the tactic reveals a certain sense of humor.
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Between 1940 and 1942, Oberstein’s Top Hat label released a series of “party records,” which featured mild sexual innuendo and sometimes carried a label stating that they were meant only for home use, as at a party.
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(“We have now reached the double-entendre era,” Oberstein wryly told
Time
in 1940.)
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The flip side of these risqué records often featured a copy of a performance recorded for one of Oberstein’s earlier record label ventures, although the performance was attributed to a pseudonym.
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His record of “She Tried It Last Night” features no performer’s name at all.
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Oberstein later aroused the ire of opera singer Regina Resnik, when in 1954 he recorded and sold copies of her radio performance of Wagner’s
Ring
cycle under a different name. He also sparked controversy in 1959 when a German court prohibited distribution of a record,
Songs and Speeches of Nazi Germany
, which Oberstein had supposedly released—an accusation he bitterly denied until his death the following year.
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Unlike Wynant Van Zant Pearce Bradley, Oberstein did not seek to exploit the popularity of another company by counterfeiting its recordings or repackaging them. The use of a pseudonym like “Sally Sad” suggests that, in the obscurity of the bargain bin, music might be an anonymous product and not the distinctive work of an esteemed and promoted artist. Indeed, Oberstein’s copying and reissuing recalled the techniques of music publishing pirates earlier in the twentieth century, who would reproduce hymns and other tunes but make up different names for them to avoid notice. The cases of Bradley and Oberstein show how muddled ideas about ownership and authorship remained well into the twentieth century. An inferior knock-off of an Italian aria or a disguised blues number suggested that recorded sounds might not be tied tightly to any particular company or performer. Sound could be a sort of anonymous fodder for entertainment, like the motion picture reels that pioneering studios once sold by the foot; such films lacked credits because the companies worried that actors could gain
greater bargaining power if their identities were known and they became popular with the public.
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However, like movies, musical recordings became vehicles for star performers and their perceived talents in the early twentieth century. A recording was not merely a “mechanical reproduction” of a song, like the holes punched into a paper piano roll. Listeners attributed a distinctive quality to a particular artist’s performance of a song—a value that could be appropriated, rightly or wrongly, through copying. A pirate record with a mistaken title and no artist attribution made little sense if the public sought familiar songs by well-known performers. The status of recordings as valuable artistic works solidified as listeners began to curate the growing body of recorded music in the 1920s and 1930s; in the process, they laid the groundwork for a new bootleg market, as well as the subsequent legal backlash that permitted record companies to begin asserting rights of ownership to their recordings.

Despite numerous attempts, the recording industry did not secure federal copyright protection for its products until 1971. Recordings were technically uncopyrightable for decades, and various pirates seized on the apparent loophole in federal law to copy works without seeking permission. Beginning in the 1930s, some bootleggers reproduced out-of-print works that had been abandoned by the major record labels without incurring any legal reaction. However, disputes over the legitimate use of recordings did arise throughout this period, producing a variety of contradictory legal opinions. In particular, two decisions by courts in New York—
RCA v. Whiteman
(1940) and
Metropolitan Opera v. Wagner-Nichols
(1950)—epitomized the contrary claims of ownership and creativity that drove this long-running debate. Although the courts split on the question of whether they could constrain piracy in the absence of federal copyright, leaving the status of sound uncertain, the outlines of a new justification for property rights began to take shape. When a court determined that the Metropolitan Opera had a right to reap the value of its popularity and reputation, it created a rationale of ownership that would powerfully reshape copyright in the 1960s and 1970s.

The Emergence of Collecting Culture

In the late 1920s a new breed of listener entered the scene of American popular culture—the jazz record collector, who appreciated jazz as an art form and sought to hoard the artifacts of its early evolution. Many of the recordings these fans collected had been produced in low numbers by small or unstable companies. The records they loved best had been targeted largely at African American consumers, who played the discs until they were nearly rubbed raw. “Your sole consolation was that early jazz was like folk music, a people’s music,” collector
Charles Edward Smith reflected years later, “and the grooves were sometimes all but gone, only because people who had loved it had listened to the records again and again.”
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In any case, the early recordings of jazz were fragile and few in number. Major companies like RCA Victor and Columbia did not see much to be gained by keeping obscure records in print. “The large mass-distribution organizations can handle, to their own satisfaction, only those large-selling items which have mass appeal,” collector Wilder Hobson observed in 1951, when the movement for collecting and preservation that he and his colleagues had started years before was bringing music copying to a head as a legal issue. “The pirate may be ethical or unethical, as you choose, but he is frequently engaged in offering time-tested, out-of-print works of art which the big recording interests have not felt it worthwhile to issue.”
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Devotees like Hobson had discovered how scarce the relics of Bix Beiderbecke and other collector favorites really were, and they duplicated these records for their friends. Then, in the late 1930s, collectors began the Hot Record Society to reissue classic recordings as an indifferent music industry looked the other way, establishing a precedent for record copiers who catered to jazz enthusiasts after World War II. In the process, the spirit of collecting collided with the dubious ethics of copying. Collectors gathered up things that were valuable because they were rare, whereas copiers made rare goods less so. Although bootlegging may seem to contradict collecting, in this sense, the two practices often coincided, meeting on one side of the law and then the other.

Record collectors and copiers reinterpreted the economic, legal, and social meaning of sound, offering their own answer to the question of how to deal with the accumulating backlog of recorded music. Working with wax and vinyl, they prefigured consumers who copied, compiled, and shared recordings through such media as magnetic tape and computer networks later in the twentieth century. Bootleggers highlighted the potential for recorded sound to have long-term commercial value at a time when the music industry still treated recordings as products of the moment, aimed at contemporary markets and abandoned as consumer tastes shifted.
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Collectors insisted that performances of the past ought to remain available, and if large companies could not make a profit by keeping such recordings in circulation, individual fans and entrepreneurs would copy and distribute the music themselves. By buying, selling, and copying the out-of-print discs of yesteryear, collectors showed that recordings did have an enduring value that the original producers—artists and record companies—would have an incentive to protect. In the process, bootleggers tested the limits of how listeners could legitimately use the products of modern culture industries, while provoking a reconsideration of the meaning of recorded sound as both art and property.