Consumption, Creation and the Law: 'Democracy of Sound'

Democracy of Sound examines the roles of piracy and copyright law in the last century and has something to say about the fate of both in this century.

Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century

Publisher: Oxford University Press
Length: 272 pages
Author: Alex Sayf Cummings
Price: $29.95
Format: Hardcover
Publication date: 2013-04

Though Napster is a dead entity its specter haunts the piracy conversation as fans and some artists claim that the recording industry didn’t respond fast enough or fair enough or wisely enough to file sharing; some cite the arrival of Napster and other such sites as the final nail in the coffin of an industry that had been on a decline since the '80s. David Lowery (Camper Van Beethoven, Cracker) responded to an NPR intern’s 2012 blog entry with a powerful and compelling public letter that shed light on the real damage that file sharing, free culture, and streaming sites have done to the industry. ("Letter to Emily White at NPR All Songs Considered", The, 18 June 2012) Others––many of whom Lowery referenced in his letter–––continued to argue that these fans were only toppling a corrupt business that needed to be dismantled long ago.

Although the technologies with which “fans” pirated music were new, the arguments were not. Even in the early days of the file sharing debate, elder music fans argued that some had once said that home taping would also topple the industry. Others could have pointed out the threat that photocopy machines once presented to writers and publishers who feared that the proliferation of these gadgets would adversely and permanently impact the publishing industry.

Piracy victims had legitimate complaints but, as Alex Say Cummings notes in this brilliantly written and researched volume, those complaints were hardly new in 1985 or even 1999. Cummings acknowledges that ethical concerns about copying date back to at least the advent of the printing press. Early on, the rights to the work did not belong to the author but instead to the printer, though some of the tides have turned in favor of a work’s creator. Asurvey of rock ‘n’ roll history alone reveals myriad examples of composers and artists who do not own the rights to their own work. Cummings offers that “Copyright, in short, has always been the creature of shifting political interests and cultural aspirations––always incomplete, always subject to change”. He adds that new technologies––or platforms––created new questions about the regulation of materials. Would songs that were available on jukeboxes, for example, be subject to different standards than those heard on the radio?

The very intangibility of sound created several vexing questions. Yes, there was a composer, but his composition could be performed by countless other musicians in seemingly countless ways. Today, some argue that even though a producer or engineer may not have had a hand in writing a song they are, by their nature, authors of a sound recording. Without their expertise, the argument goes, that song or album may not have sounded as it does and would therefore not be as successful. Are they to be compensated in exactly the same fashion as the artist who saw the composition from inspirational spark to finished work?

Cummings seeks to answer “how American society dealt with the prospect of uncontrolled copying in a century when culture industries rose to new prominence in the nation’s economy”. He begins his examination circa 1877––in fact one year before that, “One year before Edison first etched a sound pattern on tinfoil in his New Jersey lab”, with the arrival of the skit The Bogus Talking Machine, or the Puzzled Dutchman. The story, he writes, reminds us that recording was initially “a vehicle for human speech”, adding “Edison initially conceived of his invention as a tool for capturing ordinary voices as much as singers or musicians; the original impetus for the phonograph had been his desire to record messages sent over the telephone”.

Music and composers entered the picture in a different way and even early on there were voices arguing from different corners––that of the artist and that of the craftsman. Cummings notes that those who made piano rolls and phonographs were convinced that they should also “receive a copyright for their unique reproduction”. By 1909, the wisdom was that “copyright was a privilege granted by the government, not a moral right possessed by creators”, though that would change with later generations.

Subsequent years would present several challenges not only for consumers but lawmakers and artists, as well. Collecting artifacts of culture in the '20s in particular raised several questions that would remain unresolved nearly a century later. Jazz aficionados were often interested in records that had been made in small numbers and specifically marketed to African American listeners. Records that were not especially successful on the commercial front would slip out of print, although word of mouth and demand for them would remain or resurge.

Collectors then as now believed that there was music that fell well outside the ears of the mainstream that deserved to be heard. In a sense, bootlegging culture and collector culture overlapped as obsessives assumed that “if large companies could not make a profit by keeping [such] recordings in circulation, individual fans and entrepreneurs would copy and distribute the music themselves”. Cummings adds, “By buying, selling, and copying the out-of-print discs of yesteryear, collectors showed that recordings did have an enduring value that the original producers––artists and record companies––would have an incentive to protect”. At the same time, “bootleggers tested the limits of how listeners could legitimately use the products of modern culture industries, while provoking a reconsideration of the meaning of recorded sound as both art and property”.

Continued advancements in technology have made the world of the collector perhaps even more diverse and easy answers to complex moral questions more difficult to come by. These days, one can find numerous blogs that offer downloads of works by obscure international or local/regional acts. If you missed out on, say, the second wave of Israeli psychedelic music or moment in the early ‘80s when bands in Bowling Green, Ohio began crossing British synth pop with Lithuanian free jazz, you can probably find a site that offers you one or two or even ten chances to download such material. In some cases, this culture of sharing leads to legitimate reissues, and the reissue market, especially that which caters specifically to such rarified acts, remains lucrative. Some would argue that what matters is that the music is finally being heard and appreciated, that it’s finally finding an audience.

New media and the ebbs and flows of the industry have given rise to other types of online sharing that some would greet with more caution. Fans of progressive rock, for example, can attest to certain reissue campaigns being less successful than others. One might find that the first CD issue of a band’s second 1972 album omits a 30 second spoken word introduction that was available on the vinyl version, or that the bass on that same album but in a different reissue campaign is entirely too loud. A fan digitizes a pristine vinyl copy for fellow enthusiasts so that they can appreciate the record as it was initially heard. The music finds an audience but the band––and the label that reissued the material that sparked this debate––doesn’t make money in the process.

But then any medium in which sound can or could be presented in the last century, and this one as well, has presented its own series of complexities, whether they be the rise of bootleg recordings, the popularity of radio, or the cassette tape and the car stereo. One of the more intriguing chapters on the history of recorded music and rock 'n' roll chronicles the rise of bootleg albums as happened in the late '60s, with appearance of records such as Great White Wonder, an issuing of Bob Dylan’s “basement tapes”. Made public several years before he and The Band would touch up, re-record and generally augment and re-imagine tunes conceived during his “lost” period in the Woodstock woods and release that material with the bootleg-sounding name The Basement Tapes, Great White Wonder represented much of what there was for fans to love about bootlegs, and what the record industry would only slowly adopt in the coming decades.

Bootlegs could offer fans alternate versions of their favorite tunes––be it liberated studio or demo versions or in-concert recordings. In the decades before pricey multi-version anniversary editions of classic albums began appearing in the market, this was a window into the creative process, a glimpse at what might have been. Labels that focused entirely on these recordings sprouted up, offering their own style with sleeve art (or lack thereof) or even song selections. In addition to the aforementioned appeal of a glimpse at an alternate reality, it was also a way to chronicle moments that would never be captured on record.

Cummings cites the classic cassette only release, The Shit Hits the Fans by The Replacements, which captured the band’s classic lineup in all its ragged glory on the stage in Oklahoma just before leaving the indie label Twin/Tone for the major leagues. Anyone who has ever read more than a paragraph about The Replacements would know that any record company would see the prospect of a live release from the band as a sucking chest wound of a business proposition. Yet this recording, which was only pressed in a limited edition, and has never been officially reissued, is now impossible to find in its initial form.

Not even artists were sure whether to be flattered or outraged. In the case of Bruce Springsteen, we learn, one could vacillate between the former and the latter without much warning. Even Frank Zappa, who complained to the FBI on the problem of bootleggers and was obsessive in chronicling his own live shows, eventually acknowledged that fans wanted to hear certain live recordings and allowed, albeit with great reluctance, the release of two Beat the Boots box sets that were alternately everything one could love: blistering guitar solos not heard on any of his official releases, moments of historical importance such as the burning of a Swiss venue that inspired the Deep Purple classic “Smoke On the Water”. Alas, fans would hate the poor sound quality and incomplete shows.

The Grateful Dead gave the OK to fans that wanted to trade tapes of live shows and probably grew its considerable live audience as a result. Though the Grateful Dead would eventually put its collective foot down on trading in the digital age, it has released numerous archival recordings in beautiful packages that chronicle the shifting nature of its compositions and the magic of a good night on the stage -- two of the many reasons that Deadheads began collecting gig tapes with abandon.

Cummings also dedicates a healthy portion of the book to the culture of the mixtape inside the hip-hop community, noting, “Scholars have sometimes romanticized the idea of sampling and mixing as natural responses to conditions of poverty, yet DJing and producing hip-hop tracks were hardly cheap enterprises”. He cites hip-hop musicians who point to the general expenses of DJ and sampling equipment, but suggests that as in many other cases inside the music industry there was a kind of symbiotic relationship at play-- mixtapes offered artists exposure that could lead to legitimate sales. “When Def Jam and other labels leaked MP3s of vocal and instrumental tracks before an album’s release, they implicitly encouraged DJs to circulate the music... The labels also benefited from DJs doing the work of their own artist and repertoire (A&R) agents, who traditionally found and signed promising new talent”.

One of Cummings' great gifts is his ability to convey the importance and complexity of copyright reform and other legal concerns––and the discussion of both in these pages is lengthy and weighty––with the same clarity he uses to explain relatively simple concepts such as the bootleg album or the hip-hop mixtape. A lesser writer might have emerged with a narrative that was uneven, erring too much on the intellectual side one moment or too much on the artistic. Cummings, though, doesn’t exactly find a middle way. Instead, he marries the two concerns seamlessly with intelligence and respect.

Cummings seems to be of the mind that music will ultimately be free. Although this is an unfortunate point of view, it takes nothing away from his scholarship. In Democracy of Sound, he ably conveys complex legal concepts and delivers a thoroughly readable account of a most fascinating area of history, one that will likely be debated so long as humankind is able to capture and experience sound.


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Very few of their peers surpass Eurythmics in terms of artistic vision, musicianship, songwriting, and creative audacity.

The Rock and Roll Hall of Fame nominating committee's yearly announcement of the latest batch of potential inductees always generates the same reaction: a combination of sputtering outrage by fans of those deserving artists who've been shunned, and jubilation by fans of those who made the cut. The annual debate over the list of nominees is as inevitable as the announcement itself.

The Hall of Fame has been harshly criticized for some of its more inexplicable exclusions and for neglecting certain subgenres of music. Cynicism and negativity over the Hall's selection process and membership is fairly widespread. That said, despite the controversies and legitimate gripes, induction into the Rock and Roll Hall of Fame is still widely viewed as a career milestone. The Hall's stature feeds its surrounding controversies: after all, nobody would care to argue so vehemently about the merits of one artist over another if it wasn't important. Very rarely will a newly inducted artist miss the opportunity to appear at the star-studded ceremony to accept their honor.

The criteria for nomination is as follows: "Artists -- a group encompassing performers, composers and/or musicians -- become eligible for induction 25 years after the release of their first commercial recording. Besides demonstrating unquestionable musical excellence and talent, inductees will have had a significant impact on the development, evolution and preservation of rock and roll." Specifically for performers, "This category honors bands or solo artists which demonstrate musical excellence. Such a descriptor includes (but isn't limited to) influence on other performers or genres; length and depth of career and catalog; stylistic innovations; or superior technique and skills."

These standards allow the selection committee wide latitude with their choices, and generating a list that would create zero controversy is an obvious impossibility. As for those deserving artists yet to be included, their time will surely come. There has purportedly been an emphasis on increasing diversity among the nominating committee and voters in recent years, and the list of contenders for the class of 2018 reflects this.

Radiohead, as expected and deserved, are nominated in their first year of eligibility, and there is little doubt they will be inducted. Other nominees include Bon Jovi, Kate Bush, the Cars, Depeche Mode, Dire Straits, Eurythmics, J. Geils Band, Judas Priest, LL Cool J, MC5, the Meters, the Moody Blues, Rage Against the Machine, Nina Simone, Rufus featuring Chaka Khan, Sister Rosetta Tharpe, Link Wray and the Zombies. It's a strong and varied group.

Perhaps the most pleasant surprise on the list, however, is the British duo Eurythmics. Even though they've been eligible since 2006, this is their first nomination. Dave Stewart and Annie Lennox certainly deserve recognition for their important contributions to the musical fabric of the last 40 years. While Eurythmics have always been generally respected, they've never been darlings with the critics like some of their contemporaries. It's puzzling as to why. Very few of their peers surpass Eurythmics in terms of artistic vision, musicianship, songwriting and creative audacity. Lennox is second to noone as a vocalist, not just in her lead parts but also in the creative, often rhythmic way she uses her voice as an instrument. This nomination could boost the stature and perception of Eurythmics' body of work immeasurably.

Although Eurythmics are often consigned strictly to the synthpop genre, that designation fits only a portion of their repertoire. Each of their nine studio albums has its own unique vibe while retaining the duo's core identity. Eurythmics never repeat themselves, often taking bold risks and swerving in unexpected directions. Unlike many of their contemporaries, Eurythmics didn't "sell out" or compromise by chasing after obvious Top 40 hits. Even their most popular singles aren't commercial in the traditional sense, and they've always sounded like nobody else on the radio.

Despite the sudden emergence of their 1983 single "Sweet Dreams (are made of this)" as an MTV staple and international smash, Eurythmics are far from an overnight success story. Their story begins in London, 1975, when Stewart fortuitously encountered Lennox at the restaurant where she worked as a waitress. The Scottish singer had recently dropped out of the Royal Academy of Music, which she felt didn't suit her musical interests. Stewart and Lennox strongly connected over their love of music, and they quickly became a couple who were inseparable. Along with singer/ songwriter/ guitarist Peet Coombes, Stewart and Lennox formed a short-lived group the Catch. After one failed single, they added two members and renamed themselves the Tourists.

Coombes was the dominant creative force and primary songwriter behind the Tourists. Lennox and Coombes shared vocals on the band's dour and melancholy power-pop. The Tourists released three albums and managed a handful of chart appearances in the UK. Two of their singles, a peppy cover of Dusty Springfield's "I Only Want to Be With You" and the hard-rocking "So Good T\to Be Back Home Again", made the UK Top 10. The band toured extensively, but their success was fleeting. The Tourists' third album, Luminous Basement (1980), tanked badly despite containing their strongest material yet, and the group dissolved shortly thereafter.

Lennox and Stewart also endured a painful ending to their sometimes tumultuous romance, but they recognized the power of their musical chemistry and decided to continue working together as a duo. They were a pair "who couldn't be together, and who could not be apart", as Lennox reflects many years later in the song "17 Again". History has shown that they made the right decision: Stewart and Lennox compliment each other intuitively through a shared passion for music, the thrill of experimentation, and the need for emotional release that songwriting and performing allows.

The name Eurythmics was derived from a technique used to teach music to children based on sensory and physical methods of learning rhythm. The newly-christened duo signed with RCA Records and in early 1981 headed to Germany to record their debut album with highly-respected krautrock producer Conny Plank.

Plank already had a long string of acclaimed albums to his credit, including collaborations with Neu!, Can, Ultravox, Kraftwerk and Brian Eno among others. The sessions for what would become Eurythmics' debut album, In the Garden, were held at Plank's studio in Cologne. He brought several of his regular collaborators into the proceedings, including bassist Holger Czukay and drummer Jaki Liebezeit of avant-garde rockers Can, Blondie drummer Clem Burke and D.A.F. electronics whiz Robert Görl. Stewart has described the sessions as a learning experience that helped expand his perception of what pop music could be and how it could be created without following any rules, a perspective that served Eurythmics well.

Eurythmics' austere and hypnotic debut single "Never Gonna Cry Again" was released in May 1981. They filmed a low-budget video and landed a couple TV slots to promote the track, but the song's haunted nature did not translate to mainstream success: it barely scraped the lower reaches of the UK singles chart. A second single, the dreamy guitar-rocker "Belinda", followed in August but failed to chart.

In the Garden was finally released in October 1981, but without a hit to generate momentum it was barely noticed. Despite scant sales figures, the album's gloomy psychedelic guitar-pop makes for a rather strong debut. In the Garden exists in late summer shadows, densely atmospheric and shrouded in a veil of dread. Lennox's vocals are understated, subtle and lower in the mix than on subsequent albums. Sound effects, odd vocalizations and bits of sonic experimentation fade in and out like flashes of hazily repressed memory.

RCA wasn't eager to invest in a follow-up to In the Garden after its disappointing reception, so Stewart financed Eurythmics' second album largely through a personal bank loan. Faced with a minuscule budget, they worked in a London warehouse to avoid spending money on studio time. They were able to purchase cheap second-hand equipment for the sessions, including the basic TEAC 8-track on which most of the album was recorded. Adam Williams, former bassist for the ska band the Selectors, helped the duo learn the equipment while co-producing some of their earliest tracks.

The primitive set-up was the ultimate blessing in disguise. Since they were financing the sessions and self-producing, Eurythmics had the freedom to experiment with no oversight. As both Lennox and Stewart were enduring periods of deep personal strife at the time, the sessions evolved into an emotional and creative catharsis that helped shape the mercurial nature of the music. It was out of this environment that a classic was born.

Despite appearing only a few months after their debut album, the first single to emerge from the new sessions proved radically different than any of Eurythmics' prior work. Released in April 1982, "This Is the House" is a flamboyant, horn-driven spectacle on which Lennox belts out a vocal more confident and brash than any of her prior work. The song's odd mix of synthpop, R&B; and latin influences renders it completely unique, but despite its infectious ingenuity and beguiling loopiness (or perhaps because of it), "This Is the House" failed to chart.

The follow-up single that landed two months later is even better. Entrancing and soulful, "The Walk" exudes the anxiety, drama and innovation that became Eurythmics' hallmark. The vocal arrangement is ingenious, and Dick Cuthell (known for his work with Madness, the Specials, Fun Boy Three and others) lets rip a blistering trumpet solo. As in many of their songs, "The Walk" slowly ratchets up the tension through hypnotic repetition and the gradual addition of more layers of sound until it reaches a haywire frenzy. Although a brilliant recording, "The Walk" fared no better than its predecessor.

With the duo's second album Sweet Dreams (are made of this) completed, RCA began a strong promotional push, issuing the opening track "Love Is a Stranger" as a single in November 1982. Lennox's dazzling vocal ranges from icy cool to fiery passion over a relentless electric groove bracketed by sinuous lines of synth. "Love Is a Stranger" rose to #54 in the UK, their highest placement yet, and momentum was finally building for the duo thanks in part to the single's provocative video.

The first significant chapter in a series of visually arresting promotional clips that Eurythmics generated over the span of their career, "Love Is a Stranger" showcases Lennox's dramatic presence and her innate ability to command the viewer's attention. She plays multiple roles, ending the clip with her red hair slicked back and dressed androgynously in a man's suit. Image was quickly becoming an important part of the Eurythmics' equation, with Lennox always compelling no matter which character she inhabits, and Stewart often appearing as her sort of mad-scientist counterpart.

Sweet Dreams (are made of this) hit the shelves on 4 January 1983, along with its title-track, a single that continues to reverberate through pop music nearly 35 years after its release. Suddenly everything changed for Eurythmics. An obscure British duo, barely managing to survive in the music business, soared to the top with one of the more unconventional songs ever to scale those lofty heights.

"Sweet Dreams (are made of this)" has an unusual structure, with no real verses or chorus. Lennox has described it as a mantra, and indeed it is. The lyrics, which Lennox rattled off spontaneously in a matter of minutes, are a simple but profound statement about the human condition: "Everybody's looking for something," the search for meaning and fulfillment, the ephemeral "this" of which sweet dreams are made.

Lennox begins the song with a single line of vocal, then starting with "some of them want to use you" at the 0:24 point it doubles. From there the song gradually builds intensity, with the vocals increasingly layered. A masterful finalé combines all the sonic elements before fading to black, the mantra repeating endlessly, the "this" still stubbornly undefined. The booming minor-key bass riff and the epic string-motif solo starting at 1:31 are played by Lennox on a Roland Juno-6 synthesizer. The main riff (improvised by Lennox while listening to Stewart working on a drum-machine pattern), is a simple two-bar arpeggio that loops throughout most of the song. Two parts were recorded separately and panned on opposite sides of the sound spectrum, creating a richly resonant effect. "Sweet Dreams (are made of this)" is no dated relic from the early days of MTV burdened by the limitations the time. Its massive waves of synth flood out of the speakers with enormous power, as inexorably as the tide.

The music video, which became wildly popular on MTV during its heyday, is forever entwined with the song in listeners' collective consciousness. The iconic image of Lennox in her masculine suit and flaming orange flat-top helps to define the new wave era. Her forceful demeanor, nervy confidence and the subtle nuances of her facial expressions amplify the song's inherent tension. She confronts the viewer directly by pointing right in our faces at the 0:24 mark. At 1:56, she offers a sly half-smile with, "some of them want to abuse you", and at 2:15 she pounds her fist just as the song reaches its dramatic apex. Stewart appears throughout the video stoically pecking away on the drum machine he used in the recording of the song, the Movement MCS Drum Computer MK1 (except for that part where he and the cow have, well, a moment… It's all in the eye contact).

After a slow climb up the US pop chart, "Sweet Dreams (are made of this)" was finally able to derail the Police's "Every Breath You Take" from its seven-week reign at the top during the week of 3 September 1983. It would be Eurythmics' only chart-topping pop hit in America, and it reached #2 in the UK. In the wake of Eurythmics' new-found fame, "Love Is a Stranger" was re-released, this time becoming a major hit on both sides of the Atlantic.

The album's deep cuts are every bit as strange and fascinating as its better-known singles. The ghostly "Jennifer" is a narcotic reverie of keyboard swells and spectral atmospherics. "I've Got an Angel" and "Somebody Told Me" are serrated neurotic fits, swerving dangerously off-the-rails from anything that would normally be considered pop music. A long and mesmerizing exploration of urban isolation, "This City Never Sleeps" is a powerful finalé. Sweet Dreams (are made of this) is an examination of the human psyche fraught with turmoil, a series of jagged recurring nightmares and anxiety attacks set to music that is soulful and experimental, melodic but eccentric, a stark electronic soundscape that bristles with horns and unexpected sonic jolts.

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