How do you feel about record piracy?

[Christiern]

38 years ago, when I spent several weeks occupying John Hammond's chair at Columbia, George Braithe completed an album that he had worked hard on for over a year. I was asked to tell George that Columbia didn't wish to release it. It struck me that a record company should not have the right to sit on and essentially suppress any artist's work. I spoke to Clive Davis about it, suggesting that artists like George Braithe ought to be given an option to purchase and shop around—at the cost of production—any work that through no fault of their own was simply being put into the vault. Clive listened to me, nodded his head, and said he would look into that idea. Nothing was done, perhaps because Columbia—facing serious legal problems—soon thereafter used Clive as a scapegoat and fired him.

I wrote the following article 10 years later, so it is in many ways outdated (the internet alone has cast a new light on the issue), but I think the moral question still exists. It has perhaps been compounded by a recent twist that has unscrupulous, strictly-for-profit record pirates stealing from nobly motivated producers who have put a lot of work and money into vital reissue projects. Of course the whole issue was muddles by the disparity between European and U.S. copyright laws. Anyway, what do you think? Where do we draw the line—is it alright to break the law if the purpose is a noble one that benefits the music and its makers?

BENIGN PIRACY

Stereo Review

, October 1980 - “The Pop Beat”

In perusing your favorite newspaper lately, you may have come across a story of an FBI raid on a record and tape bootlegging operation. In fact, there is a good chance that one or more bootlegged items are—unbeknownst to you—in your own collection, counterfeit merchandise so expertly copied that even the record companies have found it difficult to discern whether it is their own product or not.

It is, of course, a matter of semantics, but in regard to recordings the term “bootleg” usually applies more to counterfeiting than to the unauthorized use of material. A counterfeiter will concentrate on current hit items, duplicate them in toto, and represent them as the original product; the profit margin is wide, for he pays neither production costs nor royalties, and all advertising is handled by the victimized label. A “pirate,” on the other hand, simply releases someone else’s recorded material on his own label or with no label at all. Rock concerts and complete opera performances have been covertly recorded from the audience or off the air and sold to connoisseurs in unmarked albums, but the most common pirate records are those assembled by people we used to call “moldy figs,” dyed-in-the-wool collectors of vintage jazz whose “piratical” efforts are often motivated simply by a desire to make available performances that might otherwise remain forever secreted in some record company’s vaults. Though such releases usually make some profit, the return one can expect from sales of, say,

Louisville Lou

by Ladd’s Black Aces (to take an actual example) won’t soon buy a house in Malibu. I don’t condone the practice, but were it not for the so-called “pirate labels,” a thick slice of American music would be known today only to a handful of collectors lucky enough to get their hands on the now-rare original 78s.

Limited space precludes my delving here into the ethics involved, but when a company keeps an artist’s work off the market by neither issuing it nor allowing anyone else to do so, that work is, in fact, being suppressed. Record companies ought to be obliged, as a matter of artistic and cultural conscience, to make all recorded material available, if not in their own catalogs, then at least—through licensing—in those of other interested companies. Such an arrangement would be welcomed by many small labels now operating more or less covertly, and there is at least one precedent: Biograph, the legitimate offspring of Historical (a pirate label), made a unique arrangement with Columbia to issue some of the big company’s closeted treasures a few years back. Regrettably, the licensing fee proved to be unrealistically high for the long run, so the deal died after the release of only a handful of albums. But it was a step in the right direction, and Biograph has since blossomed on its own through leasing or buying masters from other, smaller companies. That pirate jazz labels want to go straight is evidenced by the fact that several of them have channeled their shadily acquired profits into legitimate ventures.

One such company is Stash, a label that until recently was best known for its thematic albums of “borrowed” vintage jazz (“Reefer Songs.” “AC-DC Blues,” etc.) but now boasts seven releases (with two more in the can) of its very own studio sessions featuring such established jazz names as Slam Stewart, Grady Tate, Jon Faddis, Hank Jones, and Milt Hinton, The most recent Stash release features nobody you are likely to recognize unless you already have the Widespread Depression Orchestra’s first album for the label, “Downtown Uproar” (ST-203). But if you like moderately large bands playing in a style that would not have seemed odd or out of place at Roseland some forty years ago, the WDO’s “Boogie in the Barnyard” (ST-206), a collection of fairly obscure Swing Era tunes, ought to cheer you up. Many bands like the WDO would remain unrecorded were it not for such small labels as Aviva, Biograph, Stash, and Blue Goose, all of which are pirates gone legit.

There isn’t much money to be made from pirating old jazz material, but if the big labels feel uncomfortable about having their past efforts put back on the market by unlicensed vendors, they can do one of two things to regularize the practice: lease the recordings to others or reissue them themselves. —

Chris Albertson

BTW: Stash ultimately tanked due to Bernie Brightman's failure to pay collected sales tax.

[Chuck Nessa]

I thought Stash failed because Bernie never paid any publishing royalties.

[Christiern]

That, too, probably.

Come to think of it, you're right, the Harry Fox people were after him.

Edited November 10, 2008 by Christiern

[Ken Dryden]

Chris:

That is a thought-provoking article, still relevant today. I agree that an artist out to be able to acquire unissued sessions after a certain period of time for production costs. I would add that sessions that lapse from print out to revert to the artists after an agreed time. Just because a label is too lazy, cheap or dense to keep music in print, the artist could surely put it out himself. Perhaps that is a negotiating point that should be considered before agreeing to a contract in the first place.

It always burns me when a writer lists CDs by one of those European labels that specialize in stealing music (claiming its copyright is expired in Europe) in a top ten list. Why give extra publicity to these crooks, with all of the legit releases available?

I talked to Phil Woods years ago about his quintet's studio meeting with Dizzy Gillespie that appeared on Timeless. His response was, "It was recorded in France for another label. The master was stolen and it ended up in Wim Wigt's hands. I'm suing the son-of-a-bitch." Knowing how difficult and expensive it is to try to sue someone on another continent, I doubt Phil ever earned any money from that release.

[Jazzmoose]

Where do we draw the line—is it alright to break the law if the purpose is a noble one that benefits the music and its makers?

The question of whether or not to break any law is solely up to each individual, but there may be consequences.

This is Captain Obvious, signing off...

[papsrus]

Where do we draw the line—is it alright to break the law if the purpose is a noble one that benefits the music and its makers?

The question of whether or not to break any law is solely up to each individual, but there may be consequences.

This is Captain Obvious, signing off...

[Christiern]

Where do we draw the line—is it alright to break the law if the purpose is a noble one that benefits the music and its makers?

The question of whether or not to break any law is solely up to each individual, but there may be consequences.

This is Captain Obvious, signing off...

When do we ever do anything that does not potentially have consequences?

Captain Obvious, indeed.

[papsrus]

I guess the argument goes: You do what you feel is right and let the consequences (intended or unintended) play out as they will.