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Bootlegging Built Jazz

Mises Daily: Wednesday, November 09, 2011 by

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[Libertarian Review, 1975]

I am sitting here breaking the law, sort of. I'm listening to a bootleg recording of Benny Goodman playing in the Manhattan Room of New York's old Hotel Pennsylvania on October 1937. How come I don't feel guilty?

As the record business boomed in the 1960s, record piracy boomed right along with it. It's no great trick to pirate a record, and even easier when you pirate it on tape or cassette. So free enterprise flourished — really free enterprise, since the pirates paid nobody.

They were taking advantage of a loophole in the outdated copyright law of 1909, which gave no protection to recordings. The record companies, with their enormous royalties and selling costs and overhead, found themselves undersold by parasites who simply copied every hit record. Artists and composers got no royalties. Correcting a manifest injustice, Congress made record bootlegging a criminal offense in 1972.

But, perhaps because of inhibitions about ex post facto justice, Congress applied no sanction to copiers of pre-1972 records. Subsequent legal decisions seem to open the door to prosecution of the latter, but the situation is fluid at the moment. Up until now, it hasn't deterred the pre-1972 pirates.

While pop and rock hits were attracting pirates who peddled albums and tapes in the hundreds of thousands, the same methods were available to, and used by, aficionados of opera, and classical, jazz, and show music. Though the profit motive was hardly absent from their reckoning (despite the pretensions of a few who are always prepared to nominate themselves as Altruists of the Month), devotion to a favorite kind of music figured prominently in their motivations. More to the point, their bootlegging filled a need. Why not, they reasoned, turn a profit for providing a service — and, not so incidentally, for taking some risks, financial and otherwise?

So another brand of record bootlegging has emerged over the past decade, and it poses tricky legal and ethical questions. Since I'll be dealing with jazz records in this column, many of them bootleg, It might be interesting to LR readers to explore why the bootleggers now dominate jazz issues of the 1920s through the '50s — in my judgment, the golden age.

A bit of history will help explain what gave the bootleggers their opportunity. Record companies mushroomed after World War I. Then the Depression and the rise of radio staggered the industry. Only three companies survived the shakeout: RCA, Columbia, and Brunswick, the last two merging in the mid-1930s. Decca, launched in 1934 and now absorbed by MCA, soon established itself as one of the Big Three. Thus, three labels took care of virtually all recording from the early '30s until the mid-'40s — essentially, the classic period of jazz and dance music.

Note that this was also the era when you heard the big bands on late-night radio over all four networks — every night, as regular as the 11 o'clock news today. At the same time, home recording appeared: not tape, but discs on which you could cut radio broadcasts, or even family arguments. This, in fact, was the source of Benny Goodman's famous Carnegie Hall concert album. The results were usually listenable but sometimes atrocious; I have more than a few on which an eloquent sax solo gets interrupted by a blast of static. Two selections from the Goodman concert recorded so badly that they had to be left out of the Columbia album.

RCA, Columbia, and Decca thus own most of the popular recordings from the golden age. Individuals own the airchecks they laboriously recorded on their primitive home equipment. All but a handful of the recordings have long since vanished from the catalogs of the Big Three, victims of changing tastes and the "latest-hits" plague. Are these records to be lost forever, save to the dwindling band who collect old 78s? The thought offends: we are talking about the golden era of the most creative popular music the world has ever known (unless, perhaps, you count opera in its creative years as popular music).

So think the bootleggers, and their customers. It still isn't a big business. It's a crew of entrepreneurs with offices in their basements. As the business grows, if it grows much more, it may become big enough to attract lawsuits calculated to discourage all but the manically litigious.

Are we talking about a nonissue, a few intrepid Robin Hoods ripping off big bad General Motors? Not quite. First of all, I can't buy the notion that big bad General Motors, or RCA, is fair game. Moreover, the musicians and composers may also be getting shortchanged. The composers are easily disposed of. Most of the best are organized as the American Society of Composers, Authors and Publishers (ASCAP), the rest as Broadcast Music, Inc. (BMI). These groups negotiate performance fees with broadcasters, record companies, and such for the use of compositions by their members. Some bootleggers pay these fees. Those who don't, should. The matter of bandleaders and sidemen is more complicated. Where leaders were paid a flat fee for a record, there's no problem. They sold all rights to the record company. Where they had a royalty deal, surely the bootleggers have an obligation to honor it.

The sidemen are no problem as regards record dates. They were paid for them. But what about the rash of aircheck LPs? These were originally broadcasts, for which the musicians were paid. Nobody dreamed they would one day be issued as records.

The nabobs at the musicians' union have no doubts on this issue. They say that every musician must be paid union scale for these airchecks, just as if the sidemen had gathered in a recording studio last week. Not only that, but they want the boys paid at today's scale. The rate for a three-hour session, once $30, is now up around $100. The union allows four tunes per session. For a typical album of 12 songs, that's $300 per man: for a big band, $4,000 to $5,000.

Can you picture some little guy who bootlegs a pressing of maybe 500, even 5,000 records contemplating artists' fees of that size? They are formidable enough to discourage even the industry giants from issuing airchecks of anyone more obscure than Glenn Miller. A classic case of union greed killing the goose that lays the golden egg. Union rates make it all but impossible for the visible companies, those vulnerable to union reprisal, to issue aircheck albums. Result: the albums are bootlegged, and musicians get — zilch.

The plot thickens. We now come to the cultural dimension. Should the Big Three be allowed to sit on perhaps 99 percent of the material they recorded during the golden years? They are not interested in reissuing most of it (or find it unprofitable, which comes to the same thing). Ah, you say, why don't they license the little guys to do these reissues? Why indeed. I've tried to get licensed. Friends of mine have tried. You're lucky if they talk to you long enough to say no. (I have a theory about why this happens, and it may be worth a footnote in The Organization Man. The big boys make little or nothing on jazz reissues, what with their big overhead and all. They are budgeted for blockbusters. But if they license the humble 500–10,000 sellers, and a little guy does modestly well with them, somebody upstairs is sure to ask why the hell they are "giving away the company product." So they don't "give" it away. In a perverse way, the frightened organization men probably prefer bootlegging to licensing. Bootlegging spares them the anguish of Making Decisions.)

Is this, then, a classic confrontation between property rights — those of the Big Three — and what might be called, ever so loosely, the cultural rights of society? So it seems, at first. But I think the union and the Big Three have boxed themselves into a false dilemma.

The union, quite simply, shouldn't be so greedy. It should accept a simple royalty payment for the musicians on aircheck albums, a modest cost that the entrepreneur can figure into his price and work off as he sells his albums. In other words, the consumer would pay. And should.

The record companies might adopt the rights provisions that are conventional in book publishing. When an author signs over book rights to a publisher, the contract provides that the author may recover his rights if his book goes out of print for longer than, typically, six months or a year. Surely this is fair all around. If a publisher (record company) wants to retain rights to a book (record), he owes it to the author (artist) to keep it in print. Why should RCA retain rights to thousands of recordings they haven't made available for 30 or 40 or 50 years? Does an entrepreneur have the right to suppress a significant part of a cultural heritage?

Whatever the answer, there is no prospect for a solution that makes any effort to reconcile the several interests. The music business, never a haven for the ethically sensitive, is reverting to the jungle; and to pursue the metaphor, I would cast the musicians' union as the wild boars. All of which leads to a logjam of snarling selfishness — which, predictably, the free market rushes in to break. People want this music, and if they can't buy it from legitimate companies they'll buy from bootleggers.

Every now and then, however, one of the giants bestirs itself. RCA did, about five years ago, with its splendid Vintage series. It ran about a year, yielded maybe 50 albums, then dried up. Now RCA has started another reissue program.

Remember the old Bluebird label? Launched by RCA in 1933 to compete with the cheap dime-store labels then flourishing, it was the home of most of the better Artie Shaw and Glenn Miller records, not to mention hundreds of pop, jazz, hillbilly, and blues artists of every sort. Now it's back, the vehicle of the most ambitious reissue program ever undertaken by any label. Item: They're promising the complete 1935–39 Benny Goodman corpus — the "King of Swing" years. Item: They're promising Glenn Miller from 1939 through 1942 — complete except for a score of early records that are more curiosities than musical achievements. Item: They're even doing dance music. George Hall and His Taft Hotel Orchestra 1933–1937 is already out, a pleasant, unpretentious period piece featuring then-famous vocalist Dolly Dawn and her little-known, more-interesting predecessor Loretta Lee.

Producer Frank Driggs has made other wise decisions as well. Every album is a double and sells for a tempting $7.98. Every album comes with a full battery of discographical and personnel data and informed liner notes. Every selection is programmed in chronological order — valuable for tracing an artist's development.

The new line debuted with a blockbuster, Willy Bryant and Jimmie Lunceford and Their Orchestras 1930–1936. Why combine the two bands? It was an imaginative response to a numerical problem. Bryant recorded 22 songs for RCA, Lunceford 10. It works out just right for two LPs.

Willie Bryant's band is all but forgotten today, but it provides an example of a generalization I'm willing to defend across the board: even the minor Harlem bands of the 1930s swing. They are, in fact, a revelation, especially when compared to what came after. They almost never took themselves seriously. They were low-key. Whether playing jazz or pops (and no decade yielded more and better pop tunes than the '30s), they played for dancers or for one another, not for the galleries.

Something else. These records were all issued as 78s. That is, the artists were limited to not much more than three minutes per song. This made for economy, and I suggest that economy and discipline are hallmarks of superior art. The arrangers had to fashion a three-minute cameo. The soloists had to say it all in 8, 16, at most 32 bars. Contrast the self-indulgence of the typical LP: the solos go on and on, until the soloist is exhausted. (The listener has usually arrived at that point long since.)

The Bryant sides are a fair cross-section of what a second-rank band recorded in these years — a band that had to settle for mostly second-rank songs. There are jazz originals and standards, pop tunes, novelties. Especially the latter. Bryant was mainly an entertainer.

But whatever the genre, bright arrangements and convincing jazz solos abound. Teddy Wilson, just before he joined the Benny Goodman Trio, is featured on piano on six tracks, as tasty then as now. Famed tenor saxophonist Ben Webster blows five of his earliest solos, not ponderously as in his later work. Most of the soloists, however, are little known — and the more interesting for bringing us the delights of discovery. Note especially trumpeters Richard Clark and Otis Johnson, tenor saxist Johnny Russell, trombonists R.H. Horton and Johnny Haughton, alto saxist Stan Paque.

If the Bryant tracks are good, some of Lunceford's are classics. "This band was the bridge," observed the band's arranger-trumpeter Sy Oliver recently: the bridge that brought Negro bands to the attention of white audiences. So it was. Sure, whites were aware of Cab Calloway — for his novelty songs — and Duke Ellington — for his pop songs. The Lunceford band captivated white and black alike.

It deserved to. These records, among the rarest he ever recorded, capture the band when it was just finding the style that made it the most influential big band in history (save perhaps for Fletcher Henderson, Benny Goodman, or Count Basie). How to describe the style? Its main feature was a unique approach to the four-to-the-bar jazz beat. It was two-beat, but not Dixieland two-beat. It was much lighter, more subtle, easier, looser than the Dixie beat. Credit arranger-pianist Ed Wilcox, arranger Oliver, bassist Moses Allen, above all drummer Jimmy Crawford.

Another Lunceford trademark was its careful treatment of pops. Other bands played pops perfunctorily. Never Lunceford. Two obscure tunes here are small miracles of song and performance. May this album rescue from undeserved obscurity "Leaving Me" (by Fats Waller and Andy Razaf) and "Remember When" (by Will Hudson and Eddie DeLange — remember the old Hudson — DeLange band?). The typical dance band arrangement of 1934 sounds quaint today. These date not a bit; and in their day they opened up new possibilities for dance music. Trombonist Henry Wells renders the lyrics with warmth, understatement, and musicianly phrasing. (My one beef, incidentally, is that Driggs reissued take 1 of "Remember When." It has two clinkers, which he could have avoided simply by reissuing take 2.) "Breakfast Ball" shows how the band could tear into a rhythm tune, this one by Harold Arlen and Ted Koehler from Cotton Club Parade of 1934. Alto saxist Willie Smith, most famous soloist in the band, shines here on vocal and alto. And don't overlook Eddie Tompkins. Here and through the 1930s he plays most of the jazz trumpet with the band. I can think of no defensible reason why he was never given his due.

The first thing that strikes you about the band is its brilliant section work. The brass could roar and soar, but they kept it light and buoyant (at least until the 1940s). None of your Kentonesque walls of sound. The reeds, led by Smith and anchored by baritone saxist Earl Carruthers, were voiced wide and contrived to sound at once light and gutsy, and always swinging. A consensus of informed opinion would probably call this the greatest sax section of them all.

Did you think I had forgotten Lunceford's flag wavers, "White Heat" and "Jazznocracy"? They're both here. A white band, Glen Gray and the Casa Loma Orchestra, pioneered breakneck tempos. It remained for Lunceford to marry speed and power. These pieces may not bowl you over in the post-Kenton, post–Herman Herd era; in 1934 they were awesome. Not the band at its musical best, they became two of its most popular jazz efforts. Ironically for those Crow Jim critics who reflexively assign white jazzmen the role of copycat, both are the work of ofay composer-arranger Will Hudson. (Reality tends to disappoint ideologues.)

To sum up, the Bryant sides are good, and may introduce you to an abiding pleasure in the jazz experience, the minor Negro bands of the 1930s. As for the Lunceford tracks, most are indispensable. And if you need another reason for buying the album, your purchase will encourage RCA to liberate more treasures from the vaults.