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

  Democracy of Sound

  Democracy of Sound

  Music Piracy and the Remaking of American

  Copyright in the Twentieth Century

  ALEX SAYF CUMMINGS

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  Library of Congress Cataloging-in-Publication Data

  Cummings, Alex Sayf.

  Democracy of sound : music piracy and the remaking of American copyright in the twentieth century /

  Alex Sayf Cummings.

  pages cm

  Includes bibliographical references and index.

  ISBN 978–0–19–985822–4

  1. Copyright—Music—United States—History—20th century. 2. Piracy (Copyright)—United

  States—History—20th century. I. Title.

  KF3035.C86 2013

  346.7304′82—dc23

  2012041759

  1 3 5 7 9 8 6 4 2

  Printed in the United States of America

  on acid-free paper

  For Sandy, Barbara, and Darrell

  CONTENTS

  Acknowledgments

  Introduction

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

  1. Music, Machines, and Monopoly

  2. Collectors, Con Men, and the Struggle for Property Rights

  3. Piracy and the Rise of New Media

  PART TWO THE LEGAL BACKLASH, 1945–1998

  4. Counterculture, Popular Music, and the Bootleg Boom

  5. The Criminalization of Piracy

  6. Deadheads, Hip-Hop, and the Possibility of Compromise

  7. The Global War on Piracy

  Conclusion: Piracy as Social Media

  Notes

  Index

  ACKNOWLEDGMENTS

  This project has come a long way since Joshua Wright, Antonio Del Toro, and I discussed the possibilities of file sharing and free media in the summer of 2004. For most of our lives, access to knowledge had been largely circumscribed by the ability to pay for it. I remembered how my mother, a single parent on a tight budget, had purchased volumes of an encyclopedia series at the grocery store when I was young, in the hope of providing me with a valuable resource; we only made it through the letter D, but I still spent hours thumbing through the volumes we had and learned a lot about Buddhism anyway. The idea that music, history, science, and so many other things of value and merit could be freely available to almost everyone all the time was a remarkable prospect. Wikipedia represented this new world as much as Napster, the music file-sharing network; to me, learning from a free encyclopedia did not seem so different from downloading free songs. This book is a product of its time, a moment in the early twenty-first century when all the structures of publishing, recording, and broadcasting were in flux. Its strengths belong to the many brilliant people who helped me write it; its shortcomings derive from the limits of my own historical vision.

  Anyone who writes a book, especially a first one, probably feels like it took a cast of thousands to do so. This volume is no exception. First and foremost, Betsy Blackmar contributed to the doctoral thesis with her tirelessly inquisitive nature. She loved to give me “a hard time,” as she put it, and she did so with a smile. Whatever depth or insight this work might possess owes in large part to her. My other mentor was Barbara Fields—a fierce critic, kindred spirit, and valued ally since I first came to New York from Charlotte. I could always turn to her as a fellow Southerner in the big city. Her impatience with pompous, unreflective jargon dissuaded me from the temptation to lean on fuzzy language, while her intellectual honesty and defiance of conventional wisdom will always be an inspiration. The dissertation also benefited from the perceptive input of Sarah Phillips, who encouraged me through the first seminar paper that launched the project, as well as Brian Larkin, Andie Tucher, and Eric Foner. And none of it might have been written if not for the inspiring scholars I encountered at the University of North Carolina at Charlotte, including Julie Hicks, Sam Watson, Jeffrey Meyer, John Flower, Kathleen Donohue, and Cynthia Kierner.

  No historian can succeed without the generosity and good will of numerous archivists, librarians, and other knowledgeable and helpful professionals. Throughout this project, I have turned to the incomparable Dan Morgenstern of the Institute of Jazz Studies in Newark, who regaled me with stories of his rich life experiences with the musicians, collectors, and other colorful characters who populate the history of music in the twentieth century. At Middle Tennessee State University’s Center for Popular Music, I was privileged to receive invaluable assistance from Lucinda Cockrell, Martin Fisher, and Grover Baker, and Mary Lynn Cargill of Columbia University’s Butler Library initiated me into the mysteries of congressional committee reports. The boundless enthusiasm of Bill Schurk led to the discovery of a treasure trove of bootlegs at the Music Library and Sound Recordings Archive of Bowling Green State University, while Susannah Cleveland and the rest of the staff have helped me time and time again.

  I would also like to thank the many institutions that provided material support for my research. Columbia University’s Department of History and Graduate School of Arts and Sciences gave me the opportunity to live in one of the world’s great cities and enjoy access to the finest intellectual resources for five years, and a fellowship from the Consortium for Faculty Diversity allowed me to continue this work for two years as I finished the dissertation. I was fortunate to receive yet another year of support from the American Council of Learned Societies as a postdoctoral fellow, which freed me from the pressures of teaching as I made the most crucial revisions to the manuscript. Several sections of this book have previously appeared in print; I would like to thank the reviewers and editors for their insightful feedback as well as Oxford University Press and the University of Pennsylvania Press for granting permission to reprint them here. Portions of Chapters 1 and 5 appeared in the Journal of American History in a December 2010 essay entit
led “From Monopoly to Intellectual Property: Music Piracy and the Remaking of American Copyright, 1909–1971,” and part of Chapter 2 appeared as “Collectors, Bootleggers, and the Value of Jazz, 1930–1952” in Susan Strasser and David Suisman, eds., Sound in the Age of Mechanical Reproduction (Philadelphia: University of Pennsylvania Press, 2009).

  Finally, a number of individuals have pushed this project from dissertation to book. Siva Vaidhyanathan, Charlie McGovern, and a third reviewer gave rich, suggestive, and enlightening comments on the manuscript, and my editor Susan Ferber has been a terrific partner in the complex and challenging enterprise of publishing a first book. Elaine Rose kindly took time to discuss the life of her father Boris, a fabled yet little-understood figure, and I cannot stress enough how much I appreciate her sharing her stories and records with me. I would also like to extend my thanks to Bill Golden, Francis Pinckney, George Stephanopoulos, and others who enriched this book by sharing their personal experiences. My friends and fellow scholars have contributed enormously by reading the manuscript and offering insightful suggestions; most notably, Ryan Reft and Joel Suarez have been great friends who endured a series of periodic panics and freakouts with good cheer. I owe a debt of gratitude as well to the wonderful coworkers who have advised and guided me through the early stages of my career, particularly Tom Ellman at Vassar College and Rob Baker at Georgia State. Last but far from least are my family—my mother and stepfather, Sandy and Andy Shepherd, and my grandparents, Barbara and Darrell Cummings, who always encouraged learning and creativity from the earliest age and instilled the belief that a working-class kid could go anywhere and accomplish anything. I would also like to thank my father Taher, stepmother Crystal, and brother Jamaal for all their love and support. Saira Mazhar has been my dearest friend since long before this project began to take shape, and her love has sustained both me and the book as life took us from Karachi to Queens and beyond. I hope she some day gets that nictitating membrane she always wanted.

  Democracy of Sound

  Introduction

  Shout out to the bootleggers who supply my shit

  the fans online trying to find my shit

  and to the niggas listening but won’t buy my shit

  and catch me in the street and wanna ride my dick

  y’all niggas is the worst, see me like

  “J. Cole homie, can you sign my burnt CD”

  nigga please, an album ten dollars

  you act like it’s ten g’s

  this food for thought cost the same as 2 number three’s

  so at ease with that broke shit

  we all tryna get a dollar boy, no shit

  —J. Cole, “The Autograph” (2010)

  Like many people, rapper J. Cole is not sure how he feels about music piracy. He praises the bootleggers who copy and sell his mixtapes on the street, but he is impatient with fans who copy his music without paying a dime. As of this writing, “The Autograph” had not been formally put on the market. It was unavailable for sale on iTunes, but one could download it as part of the Friday Night Lights “mixtape,” a set of electronic files available for free on his website; hear it on college radio; and listen to it on YouTube. The people who distribute his music make it possible for fans to hear him, yet Cole is irked by fans who ask for his autograph on discs they copied themselves. Is it just a matter of disrespect?1

  Cole is not the first person to have mixed feelings about piracy. Americans have struggled with the problem of unauthorized reproduction—called “piracy,” “bootlegging,” or “counterfeiting,” among other terms, depending on the circumstances—ever since Thomas Edison etched the first sound waves onto tinfoil in his New Jersey lab. Sound recording opened up a variety of new questions about art, economics, and law. Would a wax cylinder or shellac disc be treated, in legal terms, the same way as a novel or photograph? For much of the last century, the answer was no. Who would own the rights to sound waves—the musicians, singers, or speakers who made the sounds? The producers and engineers who captured the sound and shaped it in the studio? The record label that paid everyone involved? And who was allowed to copy what, and under what circumstances?

  Copyright interests are prone to paint copying as a cut-and-dried matter of morality. The Motion Picture Association of America runs an ad before movies showing how pirates take food out of the mouths of set painters and other working-class members of the film industry. Record labels say that listeners, through their wanton copying and file sharing, threaten to kill the goose that lays the golden eggs—the creative artist. It is not surprising that these arguments resonate with much of the public. Copying evokes cheating, plagiarism, and unoriginality. Many people, familiar with the ordinary injustices of everyday life, see piracy as just another example of someone getting rich off another person’s work. The artist is a worker, “tryna get a dollar,” like anyone else.2

  Such moral convictions may help to explain the hard shift toward stronger copyright laws in America during the last forty years, but they do not account for the many ways in which people copy and use each other’s work every day. American law has long recognized, first informally and later by statute, that a certain degree of copying, categorized as “fair use,” is acceptable. A teacher can make copies of a poem to discuss in class. I can cite a verse from J. Cole in this book, just as a film critic can quote lines from a movie in a review. And, of course, copyright in the United States has never been an immortal right. The public domain makes freely available all works produced before a certain date, although the ever-expanding scope of property rights has begun to threaten the existence of such a commons of creativity from the past.

  The ethics of copying have vexed people since the early days of the printing press. As printing technology spread throughout Europe in the sixteenth century, the possibility of rapidly manufacturing words and images prompted Europeans to develop what would become modern ideas of ownership and authorship. At first, readers did not necessarily link a particular combination of words to a particular author, and printers circulated texts that mutated and evolved through multiple rounds of copying. Soon, however, economics and the politics of censorship intervened. In England, the Crown developed the idea of copyright, granting only the Stationers’ Company, a printers guild, the right to produce texts that were approved by the government. Given the religious and political conflicts then unfolding across Europe, a policy that controlled the proliferation of texts was a good bargain for both the government and the printers. Notably, though, the original copyright did not belong to the author but rather to the printer who published a text. Counterintuitive as it may be, this situation remains familiar to many creative people in today’s world, who often do not own the rights to their work.3

  When Americans began to consider how to run their new country in the 1780s, they looked to the legacy of English copyright for cues. The Constitution made it clear that the federal government had the right to regulate what we would now call “media.” In the language of the eighteenth century, it was in the public interest for Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings.” The key elements of English law were there: copyright was not a permanent right, but one that would encourage authors to publish by offering the prospect of profit “for limited Times.” The first federal copyright law provided only fourteen years of protection, and was limited to books, maps, and charts. Music was not specifically included in the law until 1831.4

  Copyright, in short, has always been the creature of shifting political interests and cultural aspirations—always incomplete, always subject to change. The United States in the nineteenth century resisted the idea of recognizing the copyrights of other nations, being content to make the cultural fare of Europe cheaply available to its citizens. New media such as photography and sound recording had to be fitted into laws that were primarily written to address works produced by the printing press. As pirates cop
ied sheet music and, later, records, businesses lobbied to have laws passed to protect their products from reproduction; typically, they then pushed for the new protections to be more stringently enforced. At the same time, different interests in the same “business”—for example, songwriters, record labels, radio stations, and jukebox operators—all had different opinions about how works such as songs and sound recordings should be regulated.5

  Indeed, sound recording set off conflicts over culture and property that profoundly shaped the course of copyright law in the twentieth century. It introduced a kind of medium that could not be perceived with the naked eye. All previous copyrightable works could be seen, whether words on a page, musical notes, or the lines and colors of a photograph. Sound, however, was mechanized; the listener was separated from the content, which was mediated by the stylus and the Victrola horn. Sound also confounded ideas of ownership by making it possible for the same work, a piece of music or a spoken text, to be produced in multiple versions by multiple artists. A hundred players might perform a Joplin rag in a hundred ways, with different instruments, at different speeds, and in different styles. Was each a distinctive work? Americans wrestled with these questions for almost a century following the invention of recording.6

  Piracy set all these conceptual problems into sharp relief. The early recording industry was perhaps as chaotic as the early days of printing in Europe. Composers clamored to earn income from the recordings made of their music, while competitors in the “talking machine” business copied each other’s products. As recorded music grew into a mass medium in the early twentieth century, a system of major labels that marketed hits to national markets emerged, organized along much the same lines as corporations that manufactured cars or soap. But listeners and collectors experimented with ways of copying recordings, and tiny markets for bootlegs emerged by the 1930s. Americans toyed with different modes of experiencing music, apart from buying a record or listening to one on the radio; they collected, copied, and shared records; bootlegged live performances and radio broadcasts; and sold rare and ephemeral recordings in samizdat fashion.