OF THE HIGH Cs
music industry is aghast: anyone can reproduce their product for free
and they appear powerless to stop it. Sounds familiar, except the decade
is the 1890s and the problem isnt unauthorized digital duplication
and file sharing, its record piracy.
Record piracy was a widespread and recognized, if not necessarily honorable,
profession. It was practiced by entrepreneurs large and small, by local
dealers whose names will be forever unknown who stole from big companies
like Edison and Columbia, as well as by big companies like Edison and
Columbia who stole from each other.
It was easy and profitable. And at least until 1909 it was very much a
gray area of the law. The copyright act of 1870 said nothing about who
owned the rights to a recording, because in 1870 there was no such thing
as a recording. The copyright office continually refused to register copyrights
on records, on the grounds that records were not a writing within the
terms of the copyright law.
The aggrieved party might have had some remedies under common law, but
they were largely ineffectual. He had to prove a sort of unbroken chain
of piracy -- not simple when, say, the matrix numbers and all other identification
had been rubbed off the record.
There hadnt been any piracy problem with the tinfoil machine, because
the records fell apart when removed from the mandrel, and, anyway, the
dismal sound quality was suitable only as a novelty. The dilemma began
when Bell and Tainter introduced the wax record, and Edison followed with
his own version.
The early brown wax records were made up to nine or ten at a time, the
musicians blasting into a set of recording horns. Some records might sound
better than others because of their placement in the studio or the way
in which the recording engineer adjusted the recording stylus, but the
records were all originals. Columbia advertised that one popular title
had been recorded 38,000 times.
Musicians were paid by the round --there was no concept of royalties.
(The tenor Francesco Tamagno was the first to receive royalties in 1903.)
Why piracy began
In the early 90s all the phonograph companies were consolidated in a trust
nominally owned by a businessman named Jesse Lippincott, and regional
territories were established by analogy to the telephone company. It quickly
became evident that the phonograph was not appropriate for business purposes
as the founders of the trust had conceived, but also that the demand for
records as entertainment in coin-in-the-slot machines was insatiable,
greater than anyone had dreamed.
Lippincott had thought to retain the right to manufacture musical records
but hadnt done so. It wouldnt have mattered. Edison couldnt
output records fast enough to keep up with demand. And so of necessity
the regional companies began to make records, acquiring thereby all the
attendant technical expertise and machinery.
A mechanical way to duplicate records had to be devised, and it first
appeared around 1891. It was also the only weapon that the record pirate
would need in his arsenal: the pantographic machine.
The first pantographic machines were probably made in company machine
shops. You couldnt order a duplicating machine out of a catalogue,
or buy one at any price. It was a zealously guarded trade secret. Edison
removed his from his factory to a separate building, because he feared
the secret would be spilled within two weeks. The Chicago territory kept
its behind an iron chain, in a locked room with a skull and crossbones
upon the door!
tinkering with the duplicator. This pantograph was patented by
Bettini himself. (Courtesy Allen Koenigsber)
Big companies like Columbia bought up the patents to duplicating machines
and attempted to confiscate machines used in prohibited activity. Sometimes
they would lease back rights, as they did to the Chicago territorys
Leon Douglass, inventor of one of the first pantographic machines. Douglass
pantograph was not much more than a vacuum hose connecting two phonographs,
but the factories might have banks of machines driven by pulleys from
Duplicates were felt by the public to be of lower quality. They were often
marked as duplicates in the catalogues and sold for less, around 75 cents
or a dollar, around half the price of an original.
The temptation to make unauthorized duplicates must have been irresistible,
the economics overwhelming. In the 1890s Edison calculated the cost of
making a record --the cost of a blank, the cost of the musicians, the
cost of heat in the studio--at around 34 cents. The retail cost of a blank
was around 25 cents.
Blanks were easily obtained; Edison even sold his to Columbia. Or you
could make your own. As early as 1891 Edisons spy Joseph McCoy caught
Isaac Norcross duplicating records, melting down old cylinders and adding
Ivory soap to the brew!
A Golden Age of piracy
Any small businessman could sit one machine in front of another and record,
and probably did, but there is no record of such subterranean activities,
which were probably quieted by the threat of a lawsuit. The regional companies
unabashedly stole from each other, while denying it as best they could.
Pirates in this business not only steal ideas, they steal entire
records also, bemoaned the October 1898 Phonoscope. In no
other business is it so difficult to reap the reward received.
The Chicago Central territory was conceded to be the epicenter of the
mischief, a gang whose specialty was the illicit duplication of records.
In 1892 Columbias Edward Easton alleged that Chicago Central was
the most likely originator of bogus Columbia titles. There wasnt
an effective remedy. When some spurious Chicago Central duplicates of
Edison recordings were presented to Edison, all he could do was pooh-pooh
the quality of the sound, and tell the complainant that if he was satisfied
with that quality record, he should buy it directly from Chicago Central.
Edison, too, borrowed from his competitors. In 1892 his agent Walter Mallory
secretly purchased a number of vocal and band titles from Columbia, titles
which thereafter appeared in the Edison catalogue. Edisons secretary,
Tate, secretly ordered titles from the New York and New Jersey regional
Columbia filched music from the United States Phonograph Company and sold
the duplicates as originals. And James Andem, owner of the Ohio territory,
insisted that Columbia was stealing his series of Pat Brady recordings.
Since cylinders were sold in plain pasteboard boxes until 1898 there was
no wrap-around label to serve as a guarantee of the records authenticity.
The voyage of the flat disc record in many ways mirrored the history of
the cylinder record. Almost from the inception, the record brigands attacked.
Record researcher George Paul discovered a series of Zon-o-Phone records
so identical to Berliners records that they appear to have been
pressed from the same matrices.
booty:The title on the right, a replica of the Berliner recording,
may represent the earliest known piracy of the flat disc record.Courtesy George Paul
It would not have been difficult to copy disc records. Anyone in the printing
business would be capable of doing the type of electroplating necessary,
and by 1906 Duranoid and at least five other companies were capable of
pressing the shellac.
Most record buccaneers remained discretely anonymous, few as celebrated
as Bluebeard or Sir Henry Morgan.Two of the most brazen known swashbucklers
were Joseph Jones and William T. Armstrong. Armstrong had been involved
with the Double Bell Wonder machine; Jones as a young man had worked for
Berliner and had stolen Berliners electroplating secrets. Their
Vitaphone label was the scourge of the industry for years.
Another notorious thief was Winant V.P. Bradley. Not an unintelligent
man, he held several patents and had been somehow involved with the piracy
of the early Berliner records. In 1902, along with some Ohio investors
he fathered the Talk-o-Phone company, but when Talk-o-Phone began to turn
sour in 1906 he returned to his earlier vocation of record piracy. The
Leeds and Catlin company had been locked in a long legal battle with Victor
and Columbia over duplicates of recordings pressed outside the United
States. Relying on a court decision that led him to pretend it was permissible
to do the same, Bradley established the Continental label. He was an honest
pirate: each record forthrightly warned that it was a duplicate of another.
Repelling the broadsides
Many strategies-- mostly ineffective--were employed to deter the record
pirates. The announcement was run as close to the music as possible, or
into the music. In Europe, the Recording Angel was embossed between the
grooves, also serving as a form of trademark protection. Berliner, in
Canada, briefly tried the same tactic with an image of Nipper. (Nipper
stood guard for only a few months --perhaps the trademark introduced too
much static into the record.) Columbia tried to buy up all the duplicating
patents and sue for patent violation. The legalese of a lease was printed
on the records--copy the record and break the lease.
In 1903 the issue of piracy of the cylinder record was rendered moot not
by the law but by technology, by Edisons brilliant new gold molded
records. Then in 1906 Victor won an important Federal case. Victor got
the court to say that Vitaphones use of a red label amounted to
unfair competition, confusing the public with Victors prestigious
red label. Both Vitaphone --and later Bradley--were enjoined on the basis
of unfair competition.
Nonetheless the law was still quite murky, until in 1908 a case finally
worked its way to the Supreme Court involving, of all things, the Aeolian
company and perforated piano rolls. The court ruled that a compositions
copyright was not infringed by manufacturing piano rolls.This decision
applied by analogy to records: there could be no copyright of records.
Congress responded by writing the Copyright Act of 1909. For the first
time copyright was granted --not to the record itself but to the composer.
But there was still a problem. Aeolian had been greedily buying up composers
copyrights, attempting to create a monopoly in anticipation of the new
law. So the law was amended so that anyone could pay a royalty to the
composer. It worked so well that the record pirates hardly hoisted the
Jolly Roger for another 90 years.
Paul, George. Mt. Morris, NY. Interview;
Paul, George and Fabrizio, Tim. The Talking Machine, An Illustrated Compendium.
Wile, Raymond. Record Piracy. ARSC Journal, 1985.
Koenigsberg, Allen. The Patent History of the Phonograph.
Feaster, Patrick. American Exhibition Recordings and the Dawn of the Recording
Brown, Glenn Otis. Running For Cover.The New Republic Online, posted 7/21/00.