Update • The Zonophone Records Victor Herbert Didn’t Make (1900 – 1904)

A preliminary version of this article appeared on the Mainspring Press website in April 2011. The events surrounding this case should already be familiar to well-read collectors [1], but until now, Universal Talking Machine’s actions following the decision have not been explored in a systematic manner.

In the time since the original article was posted, we’ve been fortunate in acquiring the late Bill Bryant and associates’ unpublished discography of seven- and nine-inch Zonophone records, which sheds new light on how the company handled the situation after being ordered to withdraw its bogus (but highly popular) “Victor Herbert’s Band” records in early 1904.

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msp_zono-1565

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A group advertised as “Victor Herbert’s Band” was prominently featured in the early Zonophone catalogs. The name was in regular use by late 1900; Zonophone’s October 1900 sales bulletin (the earliest we’ve located so far) listed twenty-three selections credited to the band, three of which were accompaniments to singer Bert Morphy. [2]

What buyers of those records didn’t realize — and many collectors still don’t realize today — is that neither Victor Herbert nor his band had anything to do with them.

Based upon testimony later presented at trial, the records were actually made by the 22nd Regiment Band of the New York National Guard, and this apparently was where the Victor Herbert claim — tenuous though it was — originated. Herbert had conducted this band during the 1890s, which for a time was billed as “Victor Herbert’s 22nd Regiment Band.” [3] But he left that position in 1898, before Zonophone commenced recording operations, to serve as principal conductor of the Pittsburgh Symphony. By the time the first “Herbert’s Band” Zonophones were advertised in 1900, Victor Herbert had left Pittsburgh and was touring (but not recording) with a new orchestra that bore his name.
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msp_zono-10-1901_herbert1

A portion of the Herbert listing from the October 1900 catalog.

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By early 1904, Zonophone was offering more than 120 bogus “Victor Herbert’s Band” titles in both seven- and nine-inch versions, occupying three-and-a-quarter catalog pages [4], and Herbert finally took action. In January, he applied to Judge Leventritt, of the New York Supreme Court, for an injunction restraining the Universal Talking Machine Company from using his name “for the purposes of trade.”

Herbert’s suit was based on a recently enacted New York state law that prohibited the use of a person’s name for advertising purposes without prior written consent. In addition, Herbert’s attorney argued, the records were not up to his client’s standards and “tended to lower the estimation in which his music has been held by the public.” Peter B. Olney, Universal’s counsel, opposed the injunction on the grounds that Herbert had long known that his name was being used on Zonophone records, but had not asked the company to discontinue the practice [5]. His argument was rejected.

Action was delayed while Herbert tended to business in the West [6], but on March 3, 1904, Judge Leventritt ruled in Herbert’s favor and granted an injunction [7]. In his ruling, the judge affirmed his belief that Herbert “never gave the claimed permission” for Zonophone to use his name, and also expressed his opinion that the matter could be settled “without controversy” pending a full trial [8]. The injunction was allowed to stand, and it appears that the matter of damages was resolved out of court.

The injunction left a gaping hole in Zonophone’s catalog that the company scrambled to fill. Its initial response was a frenzy of remake activity during the spring of 1904, employing the house band under Fred Hager’s direction. Many of these remakes bear master numbers in the 2300–2700 range, indicating approximate recording dates of April–June 1904. [9]

Remaking the “Herbert” titles would be immensely time-consuming (and in the case of the slower-selling titles, probably unprofitable), so in the interim the company adopted a second, stopgap strategy. The “Herbert’s Band” recordings were not illegal, per se; only the use of Herbert’s name presented any legal problem. Thus, the company resorted to printing new labels, minus the Herbert credit, for use on the existing “Herbert” recordings while the remake work proceeded. The changeover is easy to pinpoint in the Zonophone sales lists. The “Herbert’s Band” records were still proudly advertised in the February 1904 catalog. But in the May 1904 catalog, the same recordings were listed with no band credit. A short time later, a new name appeared that would permanently replace Herbert’s — the Zon-O-Phone Concert Band. [10]

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msp_zono_feb-may-04

Herbert is still credited in the February 1904 catalog (left). The
May 1904 catalog (right) lists the same recordings, but with
no band credit.

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Relabeling did not entirely solve the problem, since the relabeled records still had their original spoken announcements crediting Victor Herbert. Bill Bryant and his associates identified many specimens bearing the new Zon-O-Phone Concert Band labels, but retaining the incriminating “Herbert” announcements. And so, at some point, the company began tooling the announcements off the stampers. Pressings from 9” Zonophone mx. 87, for example, are known with and without the announcement but otherwise are aurally identical. [11]

By the time that Zonophone 7” and 9” pressings were discontinued in 1905, the last of the relabeled “Herbert” recordings had either been dropped from the catalog or been remade by the Zonophone house band, and the scandal soon faded from memory. Victor Herbert and his actual orchestra would go on to make many popular recordings beginning with Edison in 1909, which went to great lengths to assure customers that they were getting the real thing.

— Allan Sutton

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[1] Passing references to the case appear in various early writings on phonograph history. A more detailed account was published in 2010, in the author’s A Phonograph Home (Mainspring Press); and in 2016, Steve Smolian made an excellent ARSC presentation on the subject.

[2] “October Bulletin. Zonophone Records” (October 1900 catalog), unnumbered pp. 2–3.

[3] Gould, Neil. Victor Herbert: A Theatrical Life, p. 119. Fordham University Press (2011).

[4] “The New Universal Zonophone Records” (February 1904 catalog), pp. 3–6. Copy for this catalog would have been prepared in late 1903 or very early 1904.

[5] “Victor Herbert Brings Suit.” Music Trade Review (January 30, 1904), p.40.

[6] “That Zonophone Litigation.” Music Trade Review (February 20, 1904), p. 27.

[7] “Herbert Gets Injunction.” Music Trade Review (March 9, 1904), p. 4.

[8] Victor Herbert v. Universal Talking Machine Company. New York Law Journal (March 3, 1904).

[9] Recording-date ranges has been estimated based upon known recording dates from test pressings of the period.

[10] “Zon-O-Phone Records for May.” Music Trade Review (April 23, 1904), p. 29. Copy for this list would have been prepared in late March or very early April, after the injunction was upheld. The “Zon-O-Phone Concert Band” was simply the house ensemble under Fred Hager’s direction. This was the same Fred Hager who in 1920 gave the go-ahead for Mamie Smith to make what is generally regarded as the first blues record.

[11] Zonophone C 5057 (mx. 87), 9” paper-label issue. In this and similar cases, visual inspection coupled with synchronized aural comparison confirmed that the recordings are identical, aside from deletion of the announcement, and ruled out any possibility that the altered masters are dubbings (Bill Bryant data, Mainspring Press archive). The practice was not unique to Zonophone; Columbia tooled announcements off the stampers it used on its client labels.

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Bill Bryant’s Zonophone data (accumulated over several decades, and including submissions from Tim Brooks, Paul Charosh, Dick Spottswood, Jim Walsh, the Record Research associates, and many other reputable collectors and discographers) occupies several-thousand index cards, a large carton of contributor correspondence, and several iterations of Bill’s exhaustively detailed ledger. That information (much of it previously unpublished) has finally been collated and entered into a database in preparation for submission to the online Discography of American Historical Recordings later this year. A print edition is not planned.

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