Democracy of Sound (26 page)

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.
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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.
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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.
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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.
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Both forbade “transferring” sounds without the consent of the owner, as well as distributing and selling such sounds.
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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.
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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 seem 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.
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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.”
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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.”
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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.
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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.
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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.
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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.
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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.
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“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.
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“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.”
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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.”
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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.”
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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.”
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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.
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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.”
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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.
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However, if there were no market for such goods, then how could piecemeal reproduction threaten the industry? Clark 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.”
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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.
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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.
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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.

With the rise of tape copying and countercultural piracy, Congress found the record companies’ familiar cries of suffering much more persuasive. “Anyone working with this on a day-to-day basis cannot fail to be impressed with the enormous growth in [piracy] over the last 5 years or so,” Barbara Ringer told Congress in 1971. She attributed the growth to the “ease of tape duplication” and the “lack of clarity” in the law.
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While lawmakers in Washington squabbled, California had made it a felony to copy someone else’s record, no matter how many years had passed since the work was published. Ironically, Congress’s refusal to extend copyright to recordings resulted in a far greater property right at the local level. Court rulings on unfair competition were similarly open-ended. “These are not limited in time,” Ringer observed. “There are no formalities. They don’t have to put a copyright notice on them. They do not have to register or deposit anything. They just sue and win.”
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