Bootleg recording

A bootleg recording is an audio and/or video recording of a performance that was not officially released by the artist, or under other legal authority. 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.

Bootlegging is considered infringement in many jurisdictions. 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

Some artists consider any release for which they do not receive royalties to be equivalent to a bootleg, even if it is an officially licensed release. This is often the case with artists whose recordings have either become public domain or whose original agreements did not include reissue royalties (which was a common occurrence before the 1960s).

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. A number of bootlegs originated with FM radio broadcasts of live or previously-recorded live performances.

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.

The alternate term ROIO or RoIO, an acronym meaning "Record of Indeterminate Origin", or "Record of Illegitimate Origin", arose among Pink Floyd collectors trying to clarify the differences between counterfeits, pirate copies, live bootlegs, and "ROIOs", meaning recordings whose legal status was difficult or even impossible to determine. The term has spread beyond Pink Floyd fans but its recognition and usage depends largely on the individual community. It is also sometimes used to denote a Pink Floyd recording of any kind.

In the early 2000s, "bootleg" became an alternate termFact|date=July 2007 for "mashups" or "bastard pop", a style of remix in which two or more musical recordings are melded into new piece of music. Early examples often copied sound clips without paying royalties to the original artist.

History of bootlegging

The early years

Unauthorized recordings can be traced back to the early days of opera, jazz, and blues music. The first recognised rock bootleg in the United States was a double-LP known as "The Great White Wonder", for the plain white cover, sleeve and labels. This was a 1969 collection of Bob Dylan recordings and studio out-takes, as well as seven tracks from sessions made with members of The Band (released many years later in "The Basement Tapes"), put out by a pair known as "Ken" and "Dub". The album was in great demand since these unreleased tracks were otherwise unavailable. Hundreds of other bootleg LPs of Dylan's music, including several volumes of "Little White Wonder" would be released over the ensuing years. One notable release was "Ten of Swords", a 10-LP box set that was issued shortly after the 5-LP "Biograph" was released in 1985. Unlike most major artists, whose bootlegs were usually recorded in large concert venues, the Dylan bootlegs were typically taken from unreleased songs, demo tapes, or live performances made in intimate settings or during interviews.

Other early bootleg recordings that date from the same time period as "The Great White Wonder" include "Kum Back / The World's Greatest" by The Beatles, "Live On Blueberry Hill" by Led Zeppelin and "The Greatest Group on Earth" by the Rolling Stones. Soon thereafter, bootleg recordings began to emerge from Britain as well, with an unofficial release of a live recording of Jimi Hendrix at the Royal Albert Hall.cite web
url = http://www.moremusic.co.uk/links/features/bootleg.htm
title = Bootlegs, an insight into the shady side of music collecting
accessdate = 2006-09-23
last = Galloway
first = Simon
year = 1999
month =
work =
publisher = "More Music" e-zine]

Early live recordings typically contained a great deal of crowd noise, with screams and whistles from audience members close to the microphone sometimes drowning out the performance. Bootleggers gradually found ways to minimize this, sometimes just by choosing their position in the crowd carefully, by elevating the microphone above the crowd on an extensible pole, or by taping it to a light or speaker pole. Others found sophisticated ways of connecting recording equipment directly into the Front of House mixing console or soundboard, with or without the cooperation of the performer's sound crew.

Blank album covers and labels were commonplace in the early years of bootlegging; the album was often identified only by a photocopied page inside the shrink wrap listing the artist and songs, sometimes with a photograph or two. Some albums would have phony labels or covers that listed songs and artists that were in no way related to the actual music on the album. In an attempt to legitimize the practice, many LPs purported to have been made in Italy, West Germany, Australia and other countries so that they could be marketed as "imports" rather than bootlegs.

After having many of their albums available in bootleg, The Who decided to put out their first live album ("Live at Leeds") in 1970 with a brown, cardboard looking cover with "The Who Live at Leeds" stamped on the cover to make it appear as though it were a bootleg. The songs were written on the album (by Townshend's hand) to further the joke. The sound quality of this album was actually better and cleaner than most live recordings of rock bands that had been officially released prior to that date.

Many years later, and for the same reason, Aerosmith released their first official live album, "Live! Bootleg" in 1978. In addition to imitating bootleg cover designs, the album also gives an incorrect track listing (which is also common in bootleg recordings): the song "Draw The Line" is included on the record but does not appear listed.

1970s and 1980s

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 Trade Mark of Quality.cite web
url = http://backtrax-records.co.uk/floydboots/pages/history.html
title = A Brief History Of Bootlegs
accessdate = 2006-09-23
last = Slugbelch
first =
year =
month =
work = The Pink Floyd Vinyl Bootleg Guide
publisher = Backtrax Records] The large followings of bands such as Deep Purple, Led Zeppelin, 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.

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. 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.

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.

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, 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.

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.

According to Clinton Heylin, author of "Bootleg: The Rise & Fall of the Secret Recording History", the five most bootlegged artists are The Beatles, Led Zeppelin, The Rolling Stones, Bob Dylan and Bruce Springsteen.cite book | author=Heylin, Clinton| title=Bootleg! The Rise & Fall of the Secret Recording Industry|publisher=Omnibus Press|year=2004|ISBN=184449151X] Probably the most celebrated bootleg recording is "The Black Album" by Prince. The album was to have been a conventional major-label release but was pulled back from the market almost immediately after its initial release in November 1987. Bootlegs appeared shortly thereafter from a variety of sources and with widely different sound qualities. Reportedly, over 500,000 copies were sold.

1990s and 2000s

In the 1990s, there was a widespread conversion of many of the older bootlegs onto the compact disc format. 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. 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.cite book | author=Heylin, Clinton| title=Bootleg! The Rise & Fall of the Secret Recording Industry|publisher=Omnibus Press|year=2004|ISBN=184449151X]

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 prolificly 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. 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 (although it should be noted that most of the traders, if not all of them, highly discourage trading bootleg recordings encoded by lossy compression schemes - storing the recordings in lossless formats, such as FLAC, is preferred), 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, 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. [Jordan, Keith. " [http://www.neptunepinkfloyd.co.uk/magazine/2006/11/internet-bootlegs.php T'Internet - A Bootleg Fan's Paradise] " - The Past, Present and Future of Bootlegs considering the internet. "NPF Magazine". November 2006.]

Legal issues

Bootlegging vs. piracy vs. counterfeiting

Bootlegging is often incorrectly referred to as piracy but there are important differences between the two terms. Bootlegging is trafficking in recordings that the record companies have not commercially released, whereas piracy is the illegal copying/sale of recordings that are (or have been) available commercially or are planned/scheduled for commercial release. Historically, pirate releases were widespread in the 8-track cartridge format, many with labels spuriously claiming that "all royalties have been paid".

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

"Bootlegging" is sometimes also used to refer to the unlicensed file sharing of copyrighted music but the term 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."cite web
url = http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P140_25350
title = Berne Convention for the Protection of Literary and Artistic Works, Article 9
accessdate = 2006-09-23
year = 1886
month = September
publisher = World Intellectual Property Organization]

The World Intellectual Property Organization (WIPO), founded in 1967, is one of the specialized agencies of the United Nations, aiming for the international protection of intellectual property rights. According to Article 6 of the international WIPO Performances and Phonograms Treaty of 1996, all performers own the rights to their own performances: "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."cite web
url = http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html#P94_9977
title = WIPO Performances and Phonograms Treaty, Article 6
accessdate = 2006-09-23
year = 1996
month = December
publisher = World Intellectual Property Organization] 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." [ [http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000109----000-.html WIPO Copyright and Performances and Phonograms Treaties Implementation Act, Title 17, Chapter 1, § 109] (portions involving computer programs elided for readability).]

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.

However, in 2004 U.S. District Judge Harold Baer Jr. struck down a 1994 law banning the sale of bootleg recordings of live music, ruling that the law unfairly grants a seemingly perpetual copyright period to the original performances. [cite web
url = http://www.iprinfo.com/page.php?page_id=52&action=articleDetails&a_id=349&id=27
title = Constitutional Impediments to Protecting the Live Musical Performance Right in the United States
accessdate = 2006-09-23
last = Landau
first = Michael
year = 2005
month = April
work = IPRinfo Magazine
publisher = IPR University Center] 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. [cite web
url = http://www.usatoday.com/tech/news/techpolicy/2004-09-24-copyright-has-limits_x.htm
title = N.Y. judge strikes down anti-bootleg law
accessdate = 2006-09-23
last = McClam
first = Erin
year = 2004
month = September
work = USA Today
publisher = Associated Press] In 2007, Judge Baer's ruling was overruled, and the 2nd Circuit of the US Court of Appeals 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

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.

The Grateful Dead is 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. [cite web
url = http://www.themusic.com/encore/
title = TheMusic.com Encore Series
accessdate = 2006-09-23
year = 2002
publisher = Authorized "bootleg" CDs sanctioned and recorded off the soundboard by the artists] . Notable examples include Genesis, and Peter Gabriel, who has released such copies of live recordings for most of his concerts since 2003.

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. [cite web
url = http://www.instantlive.com/about.html
title = Instant Live official website
accessdate = 2006-09-22
year = 2003
publisher = Live Nation] 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 (US patent|6917566) was revoked by the USPTO in 2007 after challenges filed by the Electronic Frontier Foundation. [cite web | url=http://www.eff.org/press/archives/2007/03/12 | title=EFF Kills Bogus Clear Channel Patent | date=13 March 2007 | accessdate=2007-11-29]

Commercially released bootlegs

Many recordings first distributed as bootleg albums were later released officially by the copyright holder; for instance, the release of the 1996 "Anthology" series effectively killed the demand for many of The Beatles bootlegs previously available. 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.

ee also

* Magnitizdat, for live recordings of banned bards and musicians in the Soviet Union

References

Further reading

* Heylin, Clinton. "The Great White Wonders: The Story of Rock Bootlegs". Viking Press, September 1994. (ISBN 0670857777)
* 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 0879307137)

External links

* [http://wiki.etree.org/ Etree Wiki]
* [http://piratapes.at.ua/ Pirated Business In Ukraine (in Russian)]
* [http://vids.myspace.com/index.cfm?fuseaction=vids.channel&channelid=263458329/ Video Bootlegs]
* [http://www.archive.org/details/etree Live Music Archive]
* [http://www.sdreader.com/php/cover.php?mode=print&id=20070705 A History of Bootlegging]
* CD Pinkerton. " [http://www.bobsboots.com/boot.html What is a bootleg] " (1996)