Pop Song Piracy

Disobedient Music Distribution since 1929

Barry Kernfeld

• Publisher: University of Chicago Press
• Year: 2011
• ISBN:
  9780226431840
• Topic: Medios de comunicación y artes escénicas
• Subtopic: Música

The music industry's ongoing battle against digital piracy is just the latest skirmish in a long conflict over who has the right to distribute music. Starting with music publishers' efforts to stamp out bootleg compilations of lyric sheets in 1929, Barry Kernfeld's Pop Song Piracy details nearly a century of disobedient music distribution from song sheets to MP3s. In the 1940s and '50s, Kernfeld reveals, song sheets were succeeded by fake books, unofficial volumes of melodies and lyrics for popular songs that were a key tool for musicians. Music publishers attempted to wipe out fake books, but after their efforts proved unsuccessful they published their own. Pop Song Piracy shows that this pattern of disobedience, prohibition, and assimilation recurred in each conflict over unauthorized music distribution, from European pirate radio stations to bootlegged live shows. Beneath this pattern, Kernfeld argues, there exists a complex give and take between distribution methods that merely copy existing songs (such as counterfeit CDs) and ones that transform songs into new products (such as file sharing). Ultimately, he contends, it was the music industry's persistent lagging behind in creating innovative products that led to the very piracy it sought to eliminate.

PART I

Printed Music

1 Tin Pan Alley’s Near-Perfect Distribution System

In early to mid-1929, when song-sheet bootlegging began, the American popular song industry—or more generally, the American music industry—or still more generally, the American entertainment industry—was operating a distribution system that was as perfectly controlled as it could possibly be, horizontally and vertically, from creation of the goods to their distribution to consumers, nationwide. It was, for a fleeting moment, the musical analogue of Standard Oil.

That moment of near complete control followed upon several decades in which the development of musical recordings, music broadcasting, and musical films challenged the preeminence of music publishing. During this period, the normal state of affairs was conflict and continuous corporate upheaval, not calm and a maintenance of control. But that upheaval was always situated on legitimate grounds and did not involve any prominent criminal or disobedient activities. The Viennese scholar Peter Tschmuck catalogues a seemingly endless succession of these legitimate industrial conflicts, stretching from the 1880s to the current day, in his international survey, published in English translation as Creativity and Innovation in the Music Industry. Tschmuck surveys disconnections between inventors and their products when an invention came to be used in a new unintended way; clever or questionable challenges to and adaptations of patents; the consolidation of small firms into large firms following upon some grand success; and the disintegration of firms, large or small, following upon the saturation of a market or some grand misjudgment of a new product. It is important to recognize that the story of song-sheet bootlegging is in the big picture just another one of the endless disputes and disruptions that characterize the history of the American music industry—the international entertainment industry—any modern industry?—and certainly not the largest dispute. What distinguishes song sheets and the other stories in this book, is their development outside of authorized channels.¹

At that fleeting moment of a perfect distribution system achieved in 1929, the principal players were the Tin Pan Alley songwriting industry, comprising the song owners—variously composers, lyricists, and music publishers—and their sales representatives; the manufacturers and distributors of popular songs and song products, including vaudeville performance circuits, the recording industry, radio networks, and the movie industry; and private and public agencies overseeing distribution, including the American Society of Composers, Authors and Publishers (ASCAP), the Music Publishers Protective Association (MPPA), and the federal government. What follows is an overview of the development of their interrelationships and interdependence.

Tin Pan Alley and the vaudeville circuits. In the 1890s the American songwriting industry came to be tightly focused on formulaic but highly creative products emanating from composers, lyricists, publishers, and song pluggers working in “Tin Pan Alley,” which was situated in the area of East Fourteenth Street in Manhattan. In the twentieth century the center of activities relocated first to West Twenty-Eighth Street and then, in 1920, to the Brill Building and other nearby buildings on or in the vicinity of Broadway at Fiftieth Street. Through these years and continuing until the advent of rock and roll in the mid-1950s, the products of Tin Pan Alley would define mainstream American popular song. Since that time, the stature of its finest writers—Irving Berlin, Jerome Kern, George and Ira Gershwin, Cole Porter, Oscar Hammerstein II, Richard Rodgers, and so forth—has only grown, as the “classic” and enduring sense of their achievement has come to be recognized and appreciated.

Tin Pan Alley controlled the paper segment of the industry. Its composers and lyricists wrote the songs. From 1914, when these individuals organized ASCAP, the potential for complete control took on a new facet, in that membership in ASCAP was not open-ended, but restricted by number and by admission procedures.

The publishers of Tin Pan Alley purchased songs outright or entered into royalty agreements with the creators, and then distributed their songs as sheet music. Sales agents for the publishers “plugged” new material not only to outlets for sheet music, but just as importantly to new media for the promotion of sheet music, first recordings, then radio, then film. These agents utilized categories of bribery both modest—giving out promotional copies of sheet music—and immodest—giving out cash payments or a share of sales revenue in exchange for endorsements and performances by well-known artists, either in their public appearances or, increasingly as the years went by, through their recordings. Many of the public appearances were coordinated and controlled through the offices of two organizations: the Vaudeville Managers Association for the eastern states and the Orpheum Circuit for the nation from Chicago westward.

To my knowledge, there is no industry-wide data on sheet-music sales for this era. Publishers were self-reporting, and reports were individualized. Articles on sheet-music sales routinely give specific figures for some specific time period or segment of the industry, but overall trends are undocumented. Only in 1954 did the Music Publishers Association (MPA) trumpet a new survey representing “the first time that an accurate estimate has been made of this end of the music business,” which they placed at $30 million annually, which is presumably a substantial decline from the golden years of sheet-music sales. By this time sheet music was already completely overshadowed by recordings and broadcasting in the bid for national audiences. Consequently, it is difficult to know just how well sheet music fared before the development of these new media and in the early years of coexistence and competition with these new media (discussed below). Contextual comments and the longstanding prominence of the MPPA suggest that music publishers maintained considerable clout in the industry for many years.²

Copyright, phonograph records, and song licensing. Between 1891 and 1909, hand-in-hand with the first wave of consolidation of American popular songwriting into the offices of Tin Pan Alley, the U.S. Congress passed a series of copyright bills containing incremental changes pertaining to music. The bill of 1891 allowed music printed outside of the United States to be registered for copyright in the United States, in spite of arguments from American publishers that foreign competitors would offer cheaper labor and thus lower prices, undercutting American jobs. In 1897 “musical compositions,” that is, operas, cantatas, masses, musical theater, musical comedies, and so forth, were incorporated in the categories of dramatic compositions for which an earlier law, a statute of 1856, required permission from the copyright owner in order to give a performance in public; this requirement would have an enormous impact. The act of 1897 also toughened the government’s stance against music piracy, although by comparison with the impact of the licensing provision, discussed below, the stand on piracy was rather impotent: copyright infringement was only a misdemeanor, and it would remain so until a modification in 1974 of the 1909 bill opened the possibility of a felony conviction for especially egregious instances of record piracy, while leaving all other categories of infringement as misdemeanors.³

Concurrently, and as has been the case ever after, the capabilities of American technology in the late nineteenth to early twentieth centuries were surging ahead of attempts at controlling these capabilities through American law. Thomas Edison invented the phonograph in 1878, and in the early to mid-1880s Chichester Bell (the cousin of Alexander Graham Bell) and Charles Tainter came up with their own version, calling it a graphophone. Both machines recorded sound onto a fragile and cumbersome medium, the cylinder, and both aimed at the office-supplies marketplace. The creators conceived of their inventions primarily as new means for recording dictation in office work and for replacing stenographic machines in government and legal circles, with secondary uses in the archival preservation of speech. These aims failed. The process was far too unwieldy, especially at this early stage of development, when a separate machine was required for the making of each and every copy. In effect, there were no copies. Every recording was an original.

As the office application was failing, Edison felt that a proposed alternative use of the phonograph—for recording music—would trivialize his invention, making it nothing but a toy. So early on he was already fighting two battles, with Bell and Tainter over patents, and with the world at large, over usage. He lost both. Jesse Lippincott, who formed the Columbia Phonograph Company in 1889, agreed with Edison’s focus on office applications and quickly led it into bankruptcy, from which it was rescued, ironically, by Edison. Meanwhile, the Pacific Phonograph Company found success with a five-cents-per-play forerunner of the jukebox, and in the early 1890s Columbia began to bring in unexpectedly large profits from issues of recordings of waltzes, polkas, marches, national anthems, opera excerpts, and diverse songs, as well as dramatic recitations and foreign language instruction.

From the late 1880s onward, with an eye specifically toward music recording, Emile Berliner and Eldridge Johnson made significant improvements in the recording medium, experimenting with different approaches and materials that eventually yielded a flat disk (rather than a cylinder) and a reliable crank-based motor, both of which could be mass produced. A lengthy period of development and industrial infighting led to the founding, in October 1901, of the Victor Talking Machine Company, which then entered into further patents disputes with a Graphophone-Columbia conglomerate over the question of disk versus cylinder. By the advent of World War I, following further and continuing international adjustments in the interrelationships of corporations, the major American companies were Columbia and Victor for two segments of the distribution chain: phonograph records and phonograph machines. Record sales reached a pre-Depression peak of $106 million in 1921.

Following upon the 1897 bill that linked copyright permission to public performance, the Copyright Act of 1909 included a compulsory licensing provision of immense importance for the music industry. Sanjek explains its implications in his chronicle of the music business: “For the first time in American history, the peacetime bargaining process between a supplier and a user was regulated by the federal government, and the price for use of private property fixed by national law. A royalty of 2 cents for each piano roll, phonograph record, or cylinder manufactured was to be paid to the copyright owner.”⁴ Later in the book, in chapters on record, tape, and compact-disc piracy, I will take up this regulatory aspect of recording in much greater detail.

ASCAP and the MPPA. ASCAP formed in 1914 to enforce these licensing provisions of the Copyright Act of 1909, both for the public performance of music, and for recorded music. An oft-quoted Supreme Court ruling of 1915, regarding live performance in a New York restaurant, validated the authority of ASCAP in these two realms. ASCAP was to a considerable extent a Tin Pan Alley agency, and this newfound authority extended the reach of Tin Pan Alley beyond the realm of paper, by collecting income from “external” sources—public performance and recording—and then distributing that external income to individual members in the field of sheet music, whether songwriters or publishers. It was thus perfectly natural that as one of its lesser duties during the following decades, ASCAP would take a stand against song-sheet bootlegging, an activity that threatened to cut in on its members’ income. In 1929, as bootleg song sheets appeared and before the stock market crashed, record sales were $77 million. Such a figure presented a serious challenge to the preeminence of sheet music, but this was OK, because a nearly perfect distribution system was in place: authorized songwriters and music publishers had their fingers in all three slices of these distribution pies, gaining income from sheet-music sales, from live performance in commercial venues, and from licensing fees on phonograph records.

The MPPA formed in 1917, three years after ASCAP. This organization should not be confused with its contemporary, the National Music Publishers Association (NMPA), which will figure prominently later in the book, in investigations into record piracy, and it should not be confused with a later organization, the MPA, quoted above for its mid-century survey of sheet-music sales. Ostensibly the specific purpose of the MPPA was to fight Tin Pan Alley’s corrupt and ubiquitous practice of song plugging, as, for example, in promoting a song by bribing vaudeville stars to perform it. But this was far too incestuous a relationship to possibly succeed, having publishers police publishers. Indeed, the MPPA’s initial platform died almost immediately, and song plugging continued as a standard practice in which MPPA members participated fully. But the MPPA did not fold. Instead, its principal role became that of a business trust, endeavoring to maintain standard prices for mechanical licensing and for the sale of printed music, including sheet-music versions of pop songs. Hence, together with ASCAP, the MPPA would become concerned with bootleg song sheets, which threatened the stability of MPPA financial systems.⁵

Radio and film. Meanwhile, as record companies and sheet-music publishers developed a co-relationship under the watchful eye of the songwriter and publishing associations, radio emerged as a powerful force in the distribution of songs. Guglielmo Marconi invented radio in London at the turn of the twentieth century. The new medium blossomed in England before the Great War, initially in competition with and soon thereafter in collaboration with the German company Telefunken. After World War I, as an element of a negotiated settlement demanded by President Woodrow Wilson, the newly formed Radio Corporation of America (RCA) acquired European radio technology and gained control of national broadcasting. Its constituent members were AT&T, General Electric, and Westinghouse, which manufactured transmitters and radios. Six years later, in 1926, RCA organized its radio stations into a network, the National Broadcasting Company (NBC). In the course of these developments, inventions in the realm of radio led to a new technology for capturing sound through electrical me...