Clinton Heylin: Bootleg: The Secret History of the Other Recording Industry (1996, St. Martin's Griffin)
It’s been a while since I’ve updated you on what I’ve been reading, but the winter lull in punk gigs has me tearing through books. Right now I’m reading one about John Peel that has me listening to recordings of his old radio programs (this book also introduced me to the John Peel wiki, an amazing resource), and perhaps I’ll have more to say about that in a future installment. For now, though, I wanted to share some thoughts on this book about the bootleg record industry I read a few weeks ago.
As someone who was a teenage music fanatic when Napster et al. completely upended the record industry in the late 90s, I’ve long been interested in intellectual property and copyright. I learned more about the topic during my years in academia, where I studied the 18th century Anglophone world. The rapid expansion of printing technology during this period prompted some of the first attempts to articulate and codify intellectual property law. Also, part of my duties as a first-year English teacher included giving students lessons on the basic principles of copyright. Of course, running Sorry State I also bump against this topic with some frequency, and it continues to interest me. I wasn’t sure what to expect from this book, but I dove in with some eagerness.
Right off the bat, Heylin’s book brought several aspects of the bootleg world into clearer focus for me. He distinguishes between three different manifestations of the bootleg trade: counterfeit releases (unauthorized reproductions meant to pass for, or at least closely mimic, the original item), proper bootlegs (collections of live material and/or unreleased studio sessions, compiled and sold by independent manufacturers), and “protection gap” releases (which I’ll get into below). Heylin spends relatively little time on the counterfeit release trade, for a couple of reasons. First, he’s very interested in the quasi-artistic choices bootleggers make as part of their process (sourcing and compiling material, creating artwork and packaging, etc.), while counterfeiters merely seek to mirror another release as closely as possible. Second, from what Heylin says, the counterfeit record industry in the United States was (is?) controlled almost entirely by the mafia, which limits his access to the key players. Certainly no mobster worth their salt is going to squeal to some nobody music writer.
Heylin does, however, gain access to many of the 70s’ and 80s’ most prolific and notorious bootlegers, most of whom agree to go on the record (albeit under pseudonyms). As one might expect, many folks involved in this illicit trade are real characters, and their shenanigans make for great stories. There are plenty of entertaining anecdotes about sourcing studio outtakes from on-the-take record company and recording studio execs, getting corrupt sound guys to wire recording devices straight into the soundboard, and how the bootleggers got their wares manufactured without ringing any alarm bells. Speaking of the latter, there’s a great story about one enterprising bootlegger who, during a crackdown at the LA pressing plants, repurposed a bunch of old farm equipment into a DIY record pressing machine. The jockeying for position among the bootleggers is an interesting tale, mostly because it was a free-for-all with no rules. If someone came out with a successful title, others would rip it off within a matter of weeks, if not days. Often they’d mix and match previously released material from older bootlegs with things they’d source themselves, creating a dense knot of provenance that no fan hoping to find the best version of their favorite artist’s studio outtakes or live set could hope to unwind. When one bootlegger came up with an interesting marketing idea like distinctive artwork or a label name and logo, their competition made sure it didn’t remain an advantage for long. One of the most visible and notorious bootleg labels was called “Trade Mark of Quality,” but so many people used the name and logo that it was anything but.
One thing that surprised me about Heylin’s book is that most of the bootleggers insist what they were doing was perfectly legal. Certainly there’s an element of feigned innocence here, but on many occasions these issues were litigated in the courts, and sometimes the bootleggers came out on top. Part of this is because of the intricacies of copyright law. Even in the United States, which has the most stringent intellectual property laws in the world, the ability to copyright an audio recording was not definitively established until very late in the 1970s. Before that, U.S. copyright law recognized the copyright on a musical composition (lyrics and music / melody), but not an individual recording of that music. (A couple of months ago I was reading Joey Ramone’s brother Mickey Leigh’s book, and there’s a story about the band hiring him to transcribe the music on the first Ramones album for the copyright office… of course none of the actual Ramones could read and write music.) I found the US’s late adoption of recording copyrights shocking, but other countries lagged much further behind, making way for the protection gap releases I referred to above.
Before a few different international conventions solidified international copyright law in the 60s and 70s, each country had its own unique approach to copyright law. Even when countries signed on to these international copyright treaties (which most European nations did), works that predated the treaty weren’t automatically grandfathered in, meaning they were still subjected to the older laws. For instance, in Germany a recording was only eligible for copyright protection if the performer was German or the performance took place in Germany, so a recording of a Pink Floyd show in the US or the UK fair game for German bootleggers. Each country implemented their laws in different ways, so you had a situation where it might be perfectly legal to commercially release a live concert recording in one country, but not in another. Bootleggers were quick to exploit this loophole (the “protection gap”), manufacturing their releases in countries like Germany and Italy that had looser copyright restrictions and (legally) importing the finished product to markets like the UK and the US. Of course, the recording industry worked tirelessly to close these loopholes, but as the iron curtain became more permeable through the 80s, plants in countries like Yugoslavia and Hungary operated completely outside the umbrella of western copyright law. When that line dried up, the bootleggers found manufacturers in Asia. It’s been a decades-long game of cat and mouse.
Heylin, like the bootleggers themselves, is skeptical the law affords record companies the level of control they seek over products relating to their artists, and reading this book made me realize that many of what I took as basic assumptions of music copyright are not as intuitive as I thought. Why should a record company own the copyright on a live concert recording that I made using my equipment at an event that I paid to attend? As Heylin explains, the record companies would have us believe they own that recording and the rights to reproduce it, but the legal reasoning they rely on is shaky, and there are many examples of it not holding up in court.
By the way, I should note this book came out in 1996, so it’s quite out of date in some respects. Heylin does a lot of hand-wringing about how the CD changed the bootleg industry, but the file-sharing revolution that happened just a year or two later totally changed the terms of that debate. Still, Heylin’s examination of the history of copyright law and the bootleg trade is well-researched and authoritative.
If you’re interested in bootlegs and/or copyright, this is a great read. Heylin’s book is dense but lively, and I’ve hardly scratched the surface of all it offers here. It also got me spinning punk’s most infamous and notorious bootleg, the Sex Pistols’ Spunk. Sadly, I don’t have Spunk on vinyl (shame!), but you shouldn’t be surprised to see me do a thorough analysis of it in a future installment.