Black Swan Carusos, and Other Pirate Tales (1898 – 1951)

Black Swan Carusos, and Other Pirate Tales
(1898 – 1951)
By Allan Sutton

 

 

Record piracy — the unauthorized copying and selling of sound recordings — is a problem as old as the recording industry itself. Charges of cylinder piracy first surfaced in the early 1890s and became increasingly common as the decade progressed. Legal recourse was limited; sound recordings were not protected under copyright law at the time, and would not be for many more decades.

Pirating the early wax cylinders was simplicity in itself, requiring only a couple of phonographs, an inexpensive recording head, a cylinder to copy, and some blanks upon which to copy it. Disc records were not immune to piracy, either, although the process was more complicated. The earliest discs sold for use with the new Zonophone machines used masters that were electroplated from Berliner pressings, with the Berliner name and patent notice buffed out.

At about the same time, the Standard Talking Machine Company (comprising Albert T. Armstrong, Joseph W. Jones  Joseph A. Vincent, Emory Foster, and musical instrument manufacturer Charles G. Conn)  [1] began selling pirated Berliner discs under the Wonder brand, for sale with the Wonder Double-Bell Talking Machine, a two-horned phonograph apparently inspired by Conn’s line of double-belled band instruments. Standard issued a substantial disc catalog made up entirely of Berliner recordings that retained their original catalog numbers, with a “1” prefix added. The company quickly failed.

Armstrong’s next venture, the American Talking Machine Company, offered a new disc line, pressed in the same distinctive red fibrous material as the Wonder records. Berliner also claimed  these were pirated, although some known examples are not. American Talking Machine countered with the offer of a $1000 reward for the arrest and conviction of “parties circulating false and malicious statements” about their products. The manager of Berliner’s Philadelphia office was arrested, but little more came of the scuffle. The company failed in 1900, after the American Graphophone Company (Columbia) withdrew patent protection. [2]

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.(Top) The Wonder Record catalog was made up entirely of pirated Berliner Gramophone recordings; catalog numbers were Berliner’s, prefixed by a 1. (Bottom) Albert Armstrong’s American Talking Machine discs used some non-Berliner masters that are believed to have been original. His later American Vitaphone records used pirated Victor and Columbia recordings. The example shown here is a Columbia title by Billy Murray.

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The arrival in the early 1900s of molded cylinders, which required expensive equipment and a high degree of technical expertise to produce, put an end to cylinder piracy. Discs were another story.

By 1902, Armstrong and some former associates were back in business, as the American Vitaphone Company. [3] They  launched the earliest known “record club,” which amounted to an exchange program under which members could turn in their old records for partial credit toward new Columbia, Victor, or Zonophone discs. [4] For a time, Armstrong even offered to take in old Berliner machines, which he would refurbish for $12 and return to the customer with a new Concert Grand nameplate. Such record-exchange arrangements, however, were frowned upon by the major suppliers (which considered them to be illegal price-cutting), and Vitaphone’s “club” appears to have been short-lived. [5]

But what landed Armstrong and company in serious legal trouble was their introduction in 1902 of American Vitaphone discs, which were clearly pirated from Columbia and Victor recordings. Masters, again made by electroplating commercial pressings, often showed the original markings, and Armstrong even retained the Columbia and Victor catalog numbers. Shoddily pressed and barely advertised, the records did little if anything to undermine Victor or Columbia sales.

Victor finally took action in 1904, suing American Vitaphone for unfair competition as well as infringing its “red circular label applied to the center of a disc,” [6] for which it had recently been granted a U.S. trademark. [7] U.S. Circuit Court Judge Lacombe dismissed the red-label argument but ruled that American Vitaphone’s “re-duplication” of Victor recordings did indeed constitute unfair competition. [8] He granted an injunction on October 4 of that year, effectively ending the American Vitaphone operation. Armstrong died in early 1905, and in  November of that year, the American Express Company served notice that it would auction all unclaimed American Vitaphone property in its possession.

The Vitaphone decision had a temporary chilling effect on would-be pirates. Victor and Columbia instead turned their attention to vanquishing upstart companies, like Leeds & Catlin and Talk-O-Phone, that infringed their patents. The latter was still manufacturing phonographs, although it had not produced its own records since late 1903. [9] But in October 1908, Talk-O-Phone founder Winant Van Zant Pearce Bradley resurfaced in pirate mode with the Continental Record Company of New Baltimore, New York. Officially, the company was incorporated by Benjamin I. Carhart, E.O. Goodell, and J. C. Cady, Jr., none of whom were known entities in the recording industry. [10] In reality, as later testimony would reveal, the company was just a front for Bradley.

Following the now-familiar procedure, Continental obtained its stampers by electroplating commercial pressings of Victor and Fonotipia celebrity recordings. The stampers were sent to an undisclosed foreign location, widely suspected to be Japan, where a factory had recently opened that supposedly pressed  and exported “re-duplicated” records. Although the original markings were generally effaced from the stampers, Continental’s sales literature and labels openly acknowledged that the discs were “duplicates” of original records.”

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(Left) A Continental pressing from a pirated Fonotipia master, with the disclaimer, “This record is a duplicate of an original recording.” (Right) A Luxus pressing from a pirated Caruso Victor. Possibly of foreign origin, specimens turn up in the U.S. on occasion. (Kurt Nauck collection)

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In August 1909, following motions for preliminary injunctions, Victor and Fonotipia Ltd. brought separate actions against Bradley, which were tried together by Judge Chatfield. [11] Investigation revealed that the Continental Record Company, which claimed in its incorporation papers to be headquartered in New Baltimore (a rural village south of Albany, New York), had no verifiable office or plant there; its only confirmed employee was a local attorney. The company’s New York billing address, at 147 West Thirty-Fifth Street, turned out be occupied by an apparently unrelated storage company. Bradley claimed to have no connection with the company, except as its sales agent, but he was unable to produce witnesses who would testify to that effect.

During the trial, it was established beyond doubt that Bradley’s pressings were pirated from commercial releases. Despite his  claim that the records were equal in quality to the originals, examination revealed that the Continental pressings used inferior material, were less durable and more prone to warping than the originals, and exhibited  “a dulling or far-away effect” in playback.

Waldo G. Morse (the attorney who had represented Bradley’s Talk-O-Phone Company several years earlier) contended that Victor’s and Columbia’s licensing agreements and price controls amounted to restraint of trade, and that the artists whose work had been taken were necessary parties to the suit. Judge Chatfield rejected both arguments, holding that Bradley’s operation amounted to unfair competition, and granted an injunction. [12]

In his ruling, the judge opined, “The education of the public by the dissemination of good music is an object worthy of protection, and it is apparent that such results could not be attained if the production of the original records was stopped by the wrongful taking of both product and profit by anyone who could produce sound discs free from the expense of obtaining the original record.” Bradley moved on to other, non-phonographic endeavors, although his brothers remained involved in some legally questionable enterprises, including the patent-infringing International Record Company.

Little more was heard of illegal record operations, at least in the U.S., until 1921. In early April, the Opera Disc Company burst on the scene with an extensive catalog featuring Enrico Caruso, Geraldine Farrar, and many other exclusive Victor Red Seal artists. [13] The company had been incorporated several months earlier by New York securities broker Max Hesslein, in partnership with C. G. Galston and C. Rose. [14] Although the company named its label Musica, the public called them “Opera Discs” from the start. [15]

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.(Left) An early Opera disc issue, with the company’s label pasted over a DGG original. (Right) The more familiar version of the label, applied directly to the pressings.

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Manufactured in Germany by Deutsche Grammophon Gesellschaft (DGG) and exported by DGG’s Polyphonwerke branch, Opera Discs were not technically pirated. DGG’s predecessor, Deutschen Grammophon Aktiegescheellschaft (DGA), was the Gramophone Company’s German branch and as such held a vast number of Gramophone and Victor masters at its Hannover pressing plant. The masters were seized as spoils of war at the outbreak of German hostilities in 1914. Following the war’s end, DGA was reorganized as DGG, an independent entity. Although it no longer had corporate ties to the Gramophone or Victor companies, DGG claimed rights to any of those companies’ masters that had been in their possession at the time of the seizure.

What DGG did not possess were rights to distribute those recordings outside of Germany. Victor and the Gramophone Company immediately demanded that distribution be halted, to no avail. [16] The records continued to be sold into 1922, when the matter was finally referred to the Anglo-German Mixed Arbitral Tribunal in London. Although sales of the recordings in Germany were ruled to be legal and allowed to continue, DGG and Polyphonwerke were enjoined from exporting the records. [17] In the U.S., Victor sought but initially failed to obtain a permanent  injunction. [18] A definitive American ruling was not issued until March 31, 1923, when the  U.S. District Court in Brooklyn granted the injunction and ordered the Opera Disc Company to turn over all pressings, catalogs, and advertising material to Victor. [19]

American customers, it turned out, liked Opera Discs. The records were pressed in better material than their Victor counterparts, some dealers offered them below list price (which was roughly comparable to that of the corresponding Red Seals), and the catalog included European recordings by the likes of Battistini and Chaliapin that were not otherwise available in the U.S. They sold well overall; even today, many issues are still fairly easy to find.

A strong market for Victor knock-offs clearly existed, and record producer John Fletcher stepped in to fill the void that Opera Disc’s forced departure created. Fletcher, in partnership Harry Pace, had launched the Fletcher Record Company in April 1922, primarily to serve as the pressing plant for Pace’s Black Swan records. Fletcher had already failed with his earlier Operaphone and Olympic operations, and things would not go much better for his latest venture. His newly relaunched Olympic label attracted little interest, and sales of Black Swan’s race records were declining in the face of stepped-up competition from Okeh and others. As production faltered, Fletcher began making the same sort of bad decisions that had doomed his previous companies.

In late December 1922, an unnamed party approached Harry Pace with a proposition that the Fletcher plant press records from “masters made by Caruso himself in Germany.” (Since Caruso never recorded in Germany, the reference almost certainly was to the Victor and Gramophone Company masters being held by DGG in Germany.) Pace wisely declined, writing to Black Swan investor W. E. B. Du Bois that he did so “for fear of legal entanglements with the Victor Company who are too powerful to start any scrap with.” [20]

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.Fletcher Record Company pressings from pirated Victor recordings, 1923. Harry Pace opposed the idea but was overruled by Fletcher.

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But Fletcher, who controlled the manufacturing end of the partnership, overruled him. The Fletcher Record Company would manufacture the illegal pressings, which featured Caruso and other exclusive Victor artists. They were marketed by one or more shadowy entities whose backers probably will never be known, under the Pan American and Symphony Concert labels. [21] The labels showed no manufacturer’s name, but the records exhibited all the tell-tale characteristics of Fletcher’s pressings and label typography. Some appear to use the original DGG stampers; many others used stampers that had obviously been electroplated from commercial pressings, and not very expertly. Efforts to efface the original markings weren’t entirely successful, some small pits and other surface irregularities appear that are not present on the originals, and in one case, what appears to have been a stray hair was electroplated right along with the disc.

If Victor had any response to the new pirates, it was never reported in the trade papers. It would prove to be a moot point, anyway. By the spring of 1923 (probably the soonest the records could have made it to market), the Fletcher Record Company was failing. Pace pulled out in June, transferring his Black Swan pressing business to the New York Recording Laboratories’ plant, and Fletcher was bankrupt by year’s end. By then, the Symphony Concert records were being remaindered by one New York dealer for 19¢ each.

Record piracy did not resurface in any significant way until the later 1940s, with the sudden proliferation of small independent pressing plants eager for business of any kind, no questions asked. These tended to be full-fledged counterfeiting operations, copying not just the recordings, but the actual labels as well. The problem became so widespread that in the autumn of 1947 the Treasury Department launched an investigation that soon expanded to include the FBI and any number of state and local agencies. Initially, only small independent labels were targeted (particularly those specializing in race records), but it was not long before counterfeit Deccas began to surface.

In early April 1948, officials of Capitol, Columbia, Decca, and RCA Victor agreed to help underwrite the investigation, which by then had become national in scope. [22] A few minor offenders were caught, but the counterfeiting continued unabated. With no major culprits apprehended, the investigation eventually wound down, leaving the problem to worsen considerably. In September 1951, Billboard reported that one operation based in the New York area, which had so far eluded all efforts at detection, was believed to be pressing more than 50,000 counterfeit discs weekly. [23]

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References

 

[1] Unrelated to the later Standard Talking Machine Company of Chicago, a premium-scheme operation that sold legally rebranded Columbia products.

[2] Details of this rather complicated arrangement can be found in the author’s A Phonograph in Every Home (Mainspring Press).

[3] Unrelated to Clinton Repp’s 1911 Vitaphone company, which manufactured a unique reproducerless phonograph, nor to the much Vitaphone sound-film system.

[4] “Rates for Exchanging Records to Club Members… How to Secure Free Life Membership in Exchange Club” (American Vitaphone Company bulletin, December 1, 1902).

[5] “Our Proposition Of You Are the Owner of an Old Style Gramophone Just Like This One.” ” (American Vitaphone Company bulletin, December 1, 1902).

[6] Victor Talking Machine Co. v. Armstrong et al., 132 F. 711

[7] Victor Talking Machine Company. U.S. trademark application #42,962 (filed June 9, 1904).

[8]  “Decision on Re-Duplication.” Talking Machine World (March 15, 1905), p. 11.

[9] Talk-O-Phone’s corporate predecessor, the Ohio Talking Machine Company, made original recordings in its Toledo studio during 1902–1903, employing Strobel’s Band (Charles J. Strobel being  president of the Toledo Baseball Club and the band’s financial backer, but not its director) and other local talent. In late 1903, at about the time of its reorganization as the Talk-O-Phone Company, it discontinued recording and instead began marketing the new Leeds & Catlin discs for use with its phonographs.

[10] “Recently Incorporated.” Talking Machine World (October 15, 1908), p. 19, repeated in an untitled notice on p. 32). The former gave the location as New Baltimore, Maryland, in error.

[11] Fonotipia et al. v. Bradley, 171 F. 951; Victor Talking Machine Co. v. Same, 171 F.951.

[12] Signs Decree in ‘Dubbing’ Case.” Talking Machine World (September 15, 1909), p. 45.

[13] “Phonograph Discs “Made in Germany.’” Brooklyn Daily Eagle (May 18, 1921), p. 16.

[14] “Incorporated.” Talking Machine World (February 15, 1921), p. 54.

[15] Opera Disc Co. “Musica G.D.” U.S. trademark filing #145,643 (filed April 2, 1921). The filing claimed use of the Musica name on records since March 25, 1921.

[16] “Asks Record Injunction.” New York Times (December 10, 1921), p. 19.

[17]  “German Record Concerns Enjoined.” Talking Machine World (May 15, 1922), p. 61.

[18] “Hearing Held in the Victor Company–Opera Disc Company Suit.” Talking Machine World (March 15, 1922), p. 82.

[19] “Victor Co. Secures Injunction in Opera Disc Suit.” Talking Machine World (April 15, 1923), p. 106.

[20] Pace, Harry H. Letter to W. E. B. Du Bois (December 23, 1922). Special Collections and University Archives, University of Massachusetts–Amherst. Largely forgotten today is the fact that Du Bois, perhaps as much as Pace, was a driving force in Black Swan’s creation. A major investor in the company, he was frequently consulted by Pace on matters ranging from financial and legal issues to artists and repertoire. Their correspondence, which survives but has been largely overlooked by researchers, presents a far more accurate picture of Black Swan’s inner workings than most modern texts.

[21] The Symphony Concert label was used earlier for legitimate pressings from Earle W. Jones’ masters, as well as being pasted over other companies’ surplus pressings. Examples are known of Symphony Concert labels pasted onto Opera Disc pressings, but other (presumably later) examples are clearly Fletcher’s work.

[22] “Major Diskers Crack Down on Coast Bootlegging of Hit Recordings.” Variety (April 7, 1948), p. 42.

[23]  Martin, Joe. “‘Disklegger’” Is Plague to Record Mfrs.” Billboard (September 1, 1951), p. 1.

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©2017 by Allan R. Sutton. All rights are reserved.