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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.^[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.^{[citation needed]}

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

[edit] 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.^{[citation needed]} 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).^{[citation needed]}

Many bootlegs consist of private or professional studio recordings distributed without the artist's involvement, including demos, works-in-progress or discarded material.^{[citation needed]} 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.^{[citation needed]}

However, the most common type is the live bootleg, or audience recording, which is created with sound recording equipment smuggled into a live concert.^{[citation needed]} 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.^{[citation needed]}

The alternate term ROIO or RoIO, an acronym meaning "Recording of Indeterminate Origin", or "Recording of Independent Origin", arose among Pink Floyd collectors trying to clarify the differences between counterfeits, illegally made copies, live bootlegs, and "ROIOs", meaning recordings whose legal status was difficult or even impossible to determine.^{[citation needed]} 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.^{[citation needed]}

[edit] History of bootlegging

[edit] 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.^[2] The large followings of bands such as Deep Purple, Eric Burdon, Led Zeppelin, Black Sabbath, 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.^[2]

Bootleg collectors in this era generally relied on Hot Wacks,^{[citation needed]} 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^{[citation needed]}. 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.^{[citation needed]}

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.^[3]

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.^[3]

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.^[4] 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.

[edit] 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.^[3] 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.^[4]

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.^{[citation needed]}

During this period, composer Jerry Goldsmith became well-known for physically smashing bootleg CDs presented to him to sign.^{[citation needed]} 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.^{[citation needed]}

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.^[3] Physical bootlegging largely shifted to less regulated countries such as Hong Kong, Russia, France 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.^{[citation needed]} 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, and BitTorrent, made it simpler than ever for bootleg collectors to exchange rarities.^{[citation needed]} 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.^[5]

[edit] Legal issues

[edit] 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.^{[citation needed]}

"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.^{[citation needed]}

[edit] 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.^[6]

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."^[7] 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."^[8]

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.^[9] 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.^[10] 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

[edit] 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.

[edit] 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.^{[citation needed]} Fans cite the encouragement of these recordings as a key factor in their long-term loyalty to these bands.^{[citation needed]}

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.^{[citation needed]}

The Grateful Dead is well known for explicitly allowing their shows to be taped.

[edit] 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.^[11]. 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.^[12] 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.^[13]

[edit] Commercially released bootlegs

Many recordings first distributed as bootleg albums were later released officially by the copyright holder; for instance, 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.^{[citation needed]} 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 he is opposed to illegitimate recording of his concerts Robert Fripp's DGMlive.com offers many King Crimson bootlegs for sale as downloads.

[edit] See also

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

[edit] References

[edit] 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)

[edit] External links

• Etree Wiki
• Pirated Business In Ukraine (in Russian)
• Video Bootlegs
• Live Music Archive
• A History of Bootlegging
• CD Pinkerton. "What is a bootleg" (1996)