Bootleg recording

The audio cassette greatly increased the distribution of bootleg recordings in the 1980s.

A bootleg recording is an audio or video recording of a performance that was not officially released by the artist or under other legal authority.^[1] The process of making and distributing such recordings is known as bootlegging. A great many such recordings are simply copied and traded among fans of the artist without financial exchange, but some bootleggers are able to sell these rarities for profit, sometimes by adding professional-quality sound engineering and packaging to the raw material.

Bootlegs can consist of recordings of live performances or material created in private or professional recording sessions. Changing technologies have had a great impact on the recording, distribution, and varying profitability of the underground industry. The copyrights for the song and the right to authorize recordings often reside with the artist, according to several international copyright treaties. The recording, trading and sale of bootlegs continues to thrive, however, even as artists and record companies attempt to provide "authorized" alternatives to satisfy the demand.

Definitions

The first ever popular rock bootleg, Bob Dylan's Great White Wonder, released in July 1969

The word "bootleg" originates from the practice of smuggling illicit items in the legs of tall boots, particularly the smuggling of alcohol during the American Prohibition era. The word, over time, has come to refer to any illegal or illicit product. This term has become an umbrella term for illicit, unofficial, or unlicenced recordings, including vinyl LPs, bootleg silver CDs, or any other commercially sold bootlegged media or material.^[2] The alternate terms ROIO or RoIO, an acronym meaning "Recording of Indeterminate Origin", or "Recording of Independent Origin", and VOIO or VoIO, an acronym meaning "Video of Indeterminate Origin", or "Video of Independent Origin", arose among Pink Floyd collectors, to clarify the recording source and copyright status was hard to determine.^[3]

Although unofficial and unlicensed recordings had existed before the 1960s, the very first rock bootlegs came in plain sleeves with the title rubber stamped on it.^[4] However, they quickly developed into more sophisticated packaging, in order to distinguish the manufacturer from inferior competitors. With today's packaging and desktop publishing technology, even the layman can create "official" looking CDs. With the advent of the cassette and CD-R, however, some bootlegs are traded privately with no attempt to be manufactured professionally. This is even more evident with the ability to share bootlegs via the Internet.

Bootlegs should not be confused with counterfeit or pirated recordings, which are merely unauthorised duplicates of officially released recordings, often attempting to resemble the official product as close as possible. Some record companies have considered that any record issued outside of their control, and for which they do not receive payment, to be a counterfeit, which includes bootlegs. However, some bootleggers are keen to stress that the markets for bootleg and counterfeit recordings are different, and a typical consumer for a bootleg will have bought most or all of that artist's official releases anyway.^[5]

Who's Zoo compiled early singles and B-sides by The Who, which had not been commercially released in the U.S. Like several Trademark of Quality bootlegs, it featured cover artwork by William Stout.

Many bootlegs consist of private or professional studio recordings distributed without the artist's involvement, including demos, works-in-progress or discarded material. These might be made from private recordings not meant to be widely shared, or from master recordings stolen or copied from an artist's home, a recording studio or the offices of a record label, or they may be copied from promotional material issued to music publishers or radio stations, but not for commercial release.^[6] A theme of early rock bootlegs was to copy deleted records, such as old singles and B-sides, onto a single LP, as a cheaper alternative to obtaining all the original recordings. Strictly speaking, these were pirated recordings, but because the work required to clear all the copyrights and publishing of every track for an official release was considered to be prohibitively expensive, the bootlegs became popular. Some bootlegs, however, did lead to official releases. The Who's Zoo bootleg, collecting early singles of The Who, inspired the official album Odds And Sods, which beat the bootleggers by issuing unreleased material, while various compilations of mid-1960s bands inspired the Nuggets series of albums.^[7]

However, the most common type is the live bootleg, or audience recording, which is created with sound recording equipment smuggled into a live concert. Many artists and most live venues prohibit this form of recording, but from the 1970s onwards the increased availability of portable technology made such bootlegging increasingly easy, and as this technology has improved so too has the general quality of these recordings. A number of bootlegs originated with FM radio broadcasts of live or previously recorded live performances.^[8]

History

Pre-1970s

Kum Back, a collection of recordings by The Beatles in early 1969, appeared before the official release of Let It Be.

According to bootleg enthusiast and author Clinton Heylin, the concept of a bootleg record can be traced back to the days of Shakespeare, where unofficial transcripts of his plays would be published.^[9] During the early 20th century, a regular target for bootlegging were film soundtracks - the officially released soundtrack would often be re-recorded with a house orchestra, leading for demand for the original audio recording taken directly from the film. A notable example was a bootleg of Judy Garland performing Annie Get Your Gun, before Betty Hutton replaced her early in production, but after a full soundtrack had been recorded.^[10]

The first popular rock music bootleg resulted from Bob Dylan's activities between largely disappearing from the public eye after his motorcycle accident in 1966, and the release of John Wesley Harding at the end of 1967. After a number of artists had hits with Dylan songs that he had not officially recorded and released himself, demand increased for these recordings, particularly when they started airing on local radio in Los Angeles. Through various contacts in the radio industry, a number of pioneering bootleggers managed to obtain a selection of unreleased Dylan songs, and wondered if it would be possible to manufacture them on an LP. They managed to convince a local pressing plant to press between 1,000 and 2,000 copies discreetly, paying in cash and avoiding using real names or addresses. Since the bootleggers could not commercially print a sleeve, due to it attracting too much attention from recording companies, the LP was issued in a plan white cover with Great White Wonder rubber stamped on it.^[4]

The Rolling Stones' Live'r Than You'll Ever Be, released in late 1969, received a rave review in Rolling Stone

When The Rolling Stones announced their 1969 American tour, their first in the U.S. for several years, an enterprising bootlegger known as "Dub" decided to record some of the shows. He purchased a Sennheiser 805 "shotgun" microphone and a Uher 4000 reel to reel tape recorder specifically for recording the performances, smuggling them into the venues.^[11] The resulting bootleg, Live'r Than You'll Ever Be, was released shortly before Christmas 1969, mere weeks after the tour had finished, and in January 1970 received a rave review in Rolling Stone, who described the sound quality as "superb, full of presence, picking up drums, bass, both guitars and the vocals beautifully ... it is the ultimate Rolling Stones album".^[12] The success of the bootleg resulted in the official release of Get Yer Ya-Ya's Out! later in the year. "Dub" was one of the founders of the Trade Mark of Quality (TMOQ or TMQ) bootleg record label.^[13]

1970s

During the 1970s the bootleg industry in the United States expanded rapidly, coinciding with the era of stadium rock or arena rock. Vast numbers of recordings were issued for profit by bootleg labels such as Kornyfone and TMQ.^[14] The large followings of artists such as Deep Purple, Jimi Hendrix, Bob Dylan, The Who, Led Zeppelin, The Grateful Dead, Black Sabbath, The Beatles, The Rolling Stones and Pink Floyd created a lucrative market for the mass production of unofficial recordings on vinyl, as it became evident that more and more fans were willing to purchase them. In addition, the huge crowds which turned up to these concerts made the effective policing of the audience for the presence of covert recording equipment virtually impossible.

Additionally, some bootleggers noticed rock fans that had grown up with the music in the 1960s wanted rare or unreleased recordings of bands that had split up and looked unlikely to reform. For instance, the release of Golden Eggs, a bootleg of outtakes by The Yardbirds had proven to be so popular that the bootlegger had managed to interview the band's Keith Relf for the sequel, More Golden Eggs.^[15]

In Los Angeles there were a number of record mastering and pressing plants that were not "first in line" to press records for the major labels, usually only getting work when the larger plants were overloaded. These pressing plants were more than happy to generate income by pressing bootlegs of dubious legality.^[16] Sometimes they simply hid the bootleg work when record company executives would come around (in which case the printed label could show the artist and song names) and other times secrecy required labels with fictitious names. For example, a 1974 Pink Floyd bootleg called Brain Damage was released under the name The Screaming Abdabs.^[14] Because of their ability to get records and covers pressed unquestioned by these pressing plants, bootleggers were able to produce artwork and packaging that a commercial label would be unlikely to issue - perhaps most notoriously the 1962 recording of The Beatles at the Star Club in Hamburg, which was bootlegged as The Beatles vs. the Third Reich (a parody on an early US album entitled The Beatles vs. the Four Seasons), or Elvis' Greatest Shit, a collection of the least successful of Elvis Presley's recordings, mostly from film soundtracks.^[17]

The Pink Floyd bootleg The Dark Side of the Moo collected early singles and B-sides. At the time was the only way to hear the studio version of "Astronomy Domine" in the U.S, which was not included on their release of The Piper at the Gates of Dawn

Bootleg collectors in this era generally relied on Hot Wacks, an annual underground magazine catalog of known bootlegs, for information about recently released bootleg albums. It provided the true information on releases with fictitious labels, and included details on artists and track listings, as well as the source and sound quality of the various recordings.^[18]

The market outlets for bootlegs-for-sale were varied. In the early years, bootlegs could be bought from vendors lurking in the alleys and parking lots around live venues, as well as at swap meets, street markets, record collector shows, and smaller record stores. Mail order sources were advertised by word of mouth, and in many cases uniquely associated with individual bands. There were major markets in Japan and Europe for Led Zeppelin bootleg recordings, Beatles bootlegs, and rarities from The Rolling Stones, Deep Purple, Pink Floyd, Jimi Hendrix, The Grateful Dead, Bad Company, KISS, and Queen, among others.

Throughout the 1970s most bootleg records were of poor quality, with many of the album covers consisting of nothing more than cheap photocopies. However, later in the decade a number of unofficial "labels" such as Swinging Pig emerged in Europe, which released limited editions of better quality recordings, with improved album artwork. This trend in enhanced audio and packaging standards continued into the 1980s.^[19] punk rock saw a brief entry into the bootleg market in the 1970s, most notably the bootleg Spunk, a series of outtakes by The Sex Pistols. The album received a good review from Sounds' Chas de Whalley, who said it was "an album that no self-respecting rock fan would turn his nose up at."^[20]

1980s

The 1980s saw the increased use of audio cassettes and videotapes for the dissemination of bootleg recordings, as the affordability of private dubbing equipment made the production of multiple copies significantly easier. Cassettes were also smaller, easier to ship, and could be sold or traded more affordably than vinyl. Cassette culture and tape trading, propelled by the DIY ethic of the punk subculture, relied on an honor system where people who received tapes from fellow traders made multiple copies to pass on to others within the community. For a while, stalls at major music gatherings such as the Glastonbury Festival sold mass copies of bootleg soundboard recordings of bands who, in many cases, had played only a matter of hours beforehand. However, officials soon began to counteract this illegal activity by making raids on the stalls and, by the end of the 1980s, the number of festival bootlegs had consequently dwindled.^[19]

One of the most notable bootlegs from the 1980s is The Black Album by Prince. The album was to have been a conventional major-label release in late 1987, but on 1 December, immediately before release, Prince decided to pull the album, requiring 500,000 copies to be destroyed.^[21] A few advance copies had already shipped, which were used to create bootlegs. This eventually led to the album's official release.^[22]

1990s–present

Towards the end of the 1980s, the Ultra Rare Trax series of bootlegs, featuring studio outtakes of the Beatles, showed that digital remastering onto compact disc could produce a high-quality product that was comparable with official studio releases.^[23] Subsequently the 1990s saw the production of many bootleg CDs. Unofficial recordings became more readily available than ever before, resulting in thousands of bootlegs being circulated on CD amongst avid collectors and fans, in many cases of shows which had been originally recorded over thirty years previously. In particular, companies in Germany and Italy exploited the more relaxed copyright laws in those countries by pressing large numbers of CDs and including catalogs of other titles on the inlays, making it easier for fans to find and order shows direct.^[19] Similarly, relaxed copyright laws in Australia meant that the most serious legal challenge to unauthorized releases were made on the grounds of trademark law by Sony Music Entertainment in 1993. Court findings were in favor of allowing the release of unauthorized recordings clearly marked as "unauthorised". However, the updated GATT 1994 soon closed this so-called "protection gap" in all three aforementioned countries effective January 1, 1995.^[24]

Filling in the vacuum, with the Internet expanding, bootleg websites and mailing lists began to appear, including public websites catering to collectors who exchanged tapes and CDs free of charge, and surreptitious ones devoted to the sale of bootlegs for profit.

During this period, composer Jerry Goldsmith became well known for physically smashing bootleg CDs presented to him to sign. A German outfit called Tsunami Records was prolifically selling unauthorized recordings of Goldsmith's music for prices that generally exceeded standard retail for a single disc.

The tightening of laws and increased enforcement by police on behalf of the British Phonographic Industry (BPI), Recording Industry Association of America (RIAA) and other industry groups—often for peripheral issues such as tax evasion—gradually drove the distributors of for-profit vinyl and CD bootlegs further underground.^[19] Physical bootlegging largely shifted to less regulated countries such as Hong Kong, Russia and Brazil, with the results distributed through existing underground channels, open market sites such as eBay, and other specialized websites.

However, the late 1990s and early 2000s saw an increase in the free trading of digital bootlegs, sharply decreasing the demand for and profitability of physical bootlegs. The rise of standard audio file formats such as MP3 and FLAC, combined with the ability to share files between computers via e-mail, FTP, instant messaging, and specialized peer-to-peer file sharing networks such as Napster (now defunct as p2p), Limewire, Soulseek and BitTorrent, made it simpler than ever for bootleg collectors to exchange rarities. Older analog recordings were converted to digital format for the first time, tracks from bootleg CDs were ripped to computer hard disks, and new material was created with digital recording of various types, and all of these types could now be easily shared. The quality and portability of recording devices and microphones also increased exponentially, resulting in recordings which were often on a par with official releases. One notable change caused by this shift in technology was the unit of exchange: instead of album-length collections or live recordings of entire shows, fans often now had the option of searching for and downloading bootlegs of individual songs.^[25]

Legal issues

Bootlegging vs. piracy vs. counterfeiting

An illegally copied release is distinguished from a counterfeit. Counterfeits attempt to mimic the look of officially released product; illegally copied releases do not necessarily do so, possibly substituting cover art or creating new compilations of a group's released songs. A counterfeit is always an illegal copy but an illegal copy is not necessarily a counterfeit.

"Bootlegging" is sometimes also used to refer to the unlicensed file sharing of copyrighted music but the term illegal copying or "piracy" is usually used instead. In the same vein, "bootlegging" has become the default term amongst Japanese anime fans to describe the piracy or counterfeiting of CDs, DVDs, computer and video games, arcade games, and other merchandise. These increasingly sophisticated imitation goods from Hong Kong are much reviled by fans and the industry alike, and many anime fan conventions have adopted a strict non-bootleg policy for vendors and attendees.

Laws and court rulings

The Berne Convention for the Protection of Literary and Artistic Works has protected the copyrights on literary, scientific, and artistic works since 1886. Article 9 of the Convention states that: Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form. ... Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.^[26]

Under the Berne Convention, when a composer puts a new song in a "fixed form," for example sheet music or an audio recording, copyright law grants them the exclusive right to control who may perform that song (called performing rights) as well as control over how any derivative work is used, such as a recording of a performance of that song. These rights are retained for at least 50 years after the composer's death (typically longer). In some cases, if the song being performed is in the public domain or is free content and is performed faithfully, no copyright is violated by recording it; however such a recording may still violate performers rights, a type of neighboring right that is recognized in many nations. Where they exist, performers rights may have a shorter duration than full copyright; for example, the Rome Convention sets a minimum term of twenty years after the performance.

One example of an organization that promotes performers rights is the World Intellectual Property Organization (WIPO), founded in 1967, a specialized agencies of the United Nations that aims for the international protection of intellectual property rights. Article 6 of the international WIPO Performances and Phonograms Treaty of 1996 specifies: "Performers shall enjoy the exclusive right of authorizing, as regards their performances: (i) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and (ii) the fixation of their unfixed performances."^[27] The WIPO Copyright and Performances and Phonograms Treaties Implementation Act in the United States says "(a), unless authorized by the owners of copyright in the sound recording or ... in the musical works embodied therein, neither the owner of a particular phonorecord ... may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord ... by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending."^[28]

Most artists have made little effort to pursue legal action about bootleg recordings, viewing such "rarities trading" as harmless provided that it is not being done for profit. The benefits of interfering with such trading are fairly minimal compared to the potential ill-will generated against the artist, as the illicit works are generally circulated among the artist's most loyal fans, which have the most interest. Most record companies also have not shown an interest in pursuing or prosecuting small-scale bootleggers, but this could change at any time.

In 2004 U.S. District Judge Harold Baer Jr. struck down respective part of the 1994 Uruguay Round Agreements Act banning the sale of bootleg recordings of live music, ruling that the law unfairly grants a seemingly perpetual copyright period to the original performances.^[29] He dismissed a federal indictment of Jean Martignon, who was running a Manhattan mail-order and Internet business that sells bootleg recordings. The Recording Industry Association of America disagreed with the ruling, saying the decision "stands in marked contrast to existing law and prior decisions that have determined that Congress was well within its constitutional authority to adopt legislation that prevented trafficking in copies of unauthorized recordings of live performances", according to spokesman Jonathan Lamy.^[30] In 2007, Judge Baer's ruling was overruled, and the United States Court of Appeals for the Second Circuit found that the anti-bootlegging statute was within the power of congress. 492 F. 3d 140

Legal alternatives to illicit bootlegging

Artists and record companies have attempted to find ways to provide authorized alternatives to satisfy consumer demand for bootleg recordings, including the marketing of their own live albums and rarities collections.

Authorized live bootlegs

Throughout their career, the Grateful Dead were known to tolerate taping of the live shows. There was a demand from fans to hear the improvisations that resulted from each show, and the concept of taping shows appealed to the bands general community ethos.^[31] They were unique among bands in that their live shows tended not to be pressed and packaged as LPs, but remained in tape form to be shared between tapers.^[32] In 1985, the Dead, after years of tolerance, officially endorsed live taping of their shows, and set up dedicated areas where they believed would give the best sound recording quality.^[33]

An increasing number of artists have decided to allow and encourage live audience recording, although they and their fans generally consider the selling of such recordings—as opposed to keeping them for one's own personal enjoyment or trading them for other audience recordings—to be illegitimate bootlegging. Fans cite the encouragement of these recordings as a key factor in their long-term loyalty to these bands.

In addition, many performers have made joking suggestions to bootleggers presumably in the audience, especially when a new or unusual song is about to be performed. Fans often hopefully cite such comments as evidence of permission to make bootleg recordings.

Nine Inch Nails, Phish, Widespread Panic, Radiohead, Dream Theater and Ween (among many other "taper-friendly" musicians) are well known for explicitly allowing their shows to be taped.

Instant live bootlegs

In the early 2000s, artists responded to the demand for bootleg concert recordings by experimenting with the sale of authorized bootlegs made directly from the unmixed soundboard feeds, or from on the fly multitrack mixes, and thus superior to surreptitious audience recordings which are typically marred by crowd noise. These releases were generally available a few days to a few weeks after the concert.^[34] Notable examples include Genesis, and Peter Gabriel, who has released such copies of live recordings for most of his concerts since 2003. KISS recorded their shows and sold the copies right after the concert was over during their 2008 world tour.

In the mid-2000s, improving technology in high-speed CD reproduction made some of these "official boots" available to audience members immediately as they leave the concert; some companies can begin selling complete concert CDs less than ten minutes after the end of the show.^[35] However, a key patent in the process (that of dividing the single recording into discrete digitally marked tracks during recording) was bought by media giant Clear Channel Communications, which sued smaller competitors for patent infringement to force them out of the business. When Clear Channel divested its live entertainment business into the spin off company Live Nation in 2005, the patents were transferred as well. The patent (U.S. Patent 6,917,566) was revoked by the USPTO in 2007 after challenges filed by the Electronic Frontier Foundation.^[36]

In 2012 an iPhone app called Instaradio was released. Because of the advance in mobile microphones and network strength it allows for high quality live streaming of concerts from the audience. The app is set up like a mobile social network that automatically publishes to a number of places online. ^[37]

Commercially released bootlegs

Many recordings first distributed as bootleg albums were later released officially by the copyright holder. Provided the official release matches the quality of the bootleg, demand for the bootleg can be suppressed. One of the first rock bootlegs, containing John Lennon's performance with the Plastic Ono Band at the 1969 Toronto Rock and Roll Revival, was released officially as Live Peace in Toronto 1969 by the end of the year, effectively killing sales of the bootleg.^[24] The release of Bob Dylan's 1966 Royal Albert Hall concert on Vol. 4 of his Bootleg Series in 1998 effectively killed the demand for bootlegs of the concert. In 2002, Dave Matthews Band released Busted Stuff in response to the Internet-fueled success of The Lillywhite Sessions which they had not intended to release. Queen are slowly releasing 100 bootlegs for sale as downloads at their Online Store, with profits going to the Mercury Phoenix Trust. Although the recording of concerts by King Crimson and its guitarist Robert Fripp is prohibited, Fripp's music company Discipline Global Mobile (DGM) sells concert recordings as downloads, especially "archival recordings" produced from the recordings from the concerts' mixing consoles. With an even greater investment of sound engineering, DGM has released "official bootlegs", which are produced from one or more fan bootlegs.^[38] DGM's reverse engineering of the distribution-networks for bootlegs helped it to make a successful transition to an age of digital distribution, "unique" (in 2009) among music labels.^[39]

See also

• Magnitizdat, for live recordings of banned bards and musicians in the Soviet Union
• Cam (bootleg)

References

Bibliography

Further reading

• Heylin, Clinton. Bootleg! The Rise & Fall of the Secret Recording Industry. Omnibus Press, 2004.
• Thompson, Dave. A Music Lover's Guide to Record Collecting. Backbeat Books, September 2002. (ISBN 0-87930-713-7)
• Trew, Stuart. "The Double Life of a Bootlegger", Warrior Magazine, Sept. 2004, p. 6–8. N.B.: Discusses bootlegging in the Canadian context.

External links

• Bootleg Encyclopedia
• Etree Wiki
• Live Music Archive
• Stream Free Concerts and Authorized Live Recordings
• Collectors Music Review
• CD Pinkerton. "What is a bootleg" (1996)