Piracy and Counterfeiting in the Early
American Record Industry

By Allan Sutton

.

The following is an except from the expanded second edition of A Phonograph in Every Home: Evolution of the American Recording Industry, 1900–1919, in preparation for release later this year.

My thanks to David Giovannoni for his diligent investigation of the Wonder, American Talking Machine, and American Vitaphone labels. Scans, sound files, and comparisons to the pirated source recordings can be found under those labels on the i78s.org website.

 

Record piracy [1]  — the unauthorized copying and selling of sound recordings — has existed since the earliest days of the commercial recording industry. Until February 15, 1972, federal copyright protection did not exist for phonograph records. The Copyright Act of 1909 afforded protections to composers and publishers whose works were recorded, but explicitly exempted “mechanical reproductions” (in other words, the recordings themselves) from those protections. As a result, legitimate producers were left to prosecute piracy on other grounds, most often patent infringement or unfair competition. A reporter for The Music Trade Review observed in 1905,

Making “dubs,” that is, re-duplicating the disk records manufactured by the concerns who originated the “masters,” seems to be quite a business in itself, though not considered altogether reputable, and certainly not legitimate. … It is a question of whether the parties guilty of producing the spurious goods are not legally liable under the law of unfair competition. [2]

Any hope that the newly proposed Copyright Act would extend protection to sound recordings was quashed in 1906, when it became clear that it was intended to protect only composers and publishers, not the record companies themselves. As a result, the bill was staunchly opposed by recording industry officials, although Victor attorney Horace Pettit noted that his company might be more amenable to the proposal should copyright protection be extended to sound recordings:

If the talking machine companies are under this act to pay royalties to authors and composers on copyrighted compositions, the talking machine companies should also be protected, in this way: We might pay Mr. Sousa or Mr. Herbert or Mr. Caruso, or any of the opera singers, $1,000 for making a record. It is perfectly possible within the known arts for that record, after we make it, to be reproduced by a mere copper plating process by somebody else, and copied, so that we would pay $1,000 or so and have no protection against the person manufacturing a duplicate of it. Therefore, for that and other reasons, the talking machine manufacturers should be entitled to register the particular records which they prepare, and that provision should he included in the act. [3]

But Pettit’s argument fell on deaf ears. Ultimately, the bill as passed in 1909 required record companies to pay publishers royalties for use of their copyrighted compositions on records, but provided no copyright protection for the recordings themselves.

By then, record companies had been grappling with the problem of piracy for two decades. The ability to make one’s own recordings was an inherent feature and important selling point of the wax-cylinder phonograph, and from there it was just a short step from making original home recordings to making and selling unauthorized copies of commercial recordings. The basic supplies (two phonographs, a recording head, a supply of wax blanks, and some cylinders to copy) were readily available from any phonograph dealer. High-speed pantographs, which produced copies via a direct mechanical link to the “master,” are known to have been used in some of the larger cylinder-pirating operations. On the other hand, disc-record piracy — usually accomplished during this period by electroplating or pantographing commercial pressings to produce new stampers — required considerably more expertise as well as access to commercial plating and pressing facilities. However, the basic processes and formulations were well known, and were being employed in the production of illicit discs by the later 1890s.

Accusations of cylinder piracy were made as early as 1891. By the later 1890s, cylinder piracy was running rampant. In 1897, the Kansas City Talking Machine advertised “warranted original” cylinders for 50¢ each, half the usual going price at the time, leading The Phonoscope’s editor to speculate that they might be pirated copies. [4] Relatively little original documentation of cylinder-counterfeiting operations has survived. Most were clandestine businesses that either eluded detection or were shut down with little attendant publicity. However, an October 1901 report by Joseph P. McCoy, an industrial spy favored by Thomas Edison, offers a glimpse of one early pirating operation.

McCoy, on the pretense of wanting to record his own cylinders, called upon one Robert J. Roth in New York. Roth, McCoy reported, “told me that he could buy me a Duplicating Machine for about $100.00 and could get me blanks for from 6 to 7 cents apiece by the hundred.” After being passed from one questionable supplier to another, McCoy eventually found himself in the company of a Mr. Isaacs, who offered to sell him “a lot of records he had for 11 cents apiece and would guarantee 75% of them marketable and suggested that I take these records and sell them off first, then take them back from my customers in exchange for others and shave them off and make my own blanks in that way.” Isaacs also offered to sell McCoy the molds needed to make his own blanks “with a very simple formula in case I couldn’t get the proper wax. I could make these blanks with two-thirds portion Ivory Soap and one portion rosin.” The conversation then turned to the marketing of bootlegged cylinders:

I spoke to [Isaacs] about making records and selling them to department stores and he showed me some orders he had on file where he furnished Siegel-Cooper Co., Bloomingdale Brothers, and Joseph Bauland Co. of Brooklyn. He was supplying these in lots of 750 from 11¢ to 12¢ each. He said that he could furnish any of these stores as many as 1,000 a month and make good money on them at this price. (And by the way, Mr. Roth also told me in our conversation that he had furnished Bloomingdale and Siegel-Cooper Co. a great many records at 60% off list price). [5]

Cylinder piracy declined quickly after mass-produced molded records were introduced in 1902. Cylinder molding was a complex operation requiring a high degree of expertise and the use of proprietary, patent-protected equipment that was not available to small operators. Besides being complicated to produce, the new molded cylinders were louder and more durable than their predecessors’, and their technical superiority quashed demand for the primitive brown-wax cylinders the bootleggers produced.

McCoy uncovered one of the last known cylinder-pirating operations in March 1903. Doing business as the Dodin Record Company, it marketed poor-quality copies made on imported brown-wax Pathé blanks. [6]  Edison sued the company for various patent violations, but locating the offenders proved difficult. The Dodins (who apparently were brothers)  disappeared shortly after a preliminary injunction was issued; in their absence, notice was served on their mother. After the defendants failed to appear for trial, a pro confesso ruling was entered against them, and a final decree was prepared. Its issuance was deemed “not urgent, since defendant appears to have discontinued business.” [7]

Illegal disc copying was under way by the later 1890s. The earliest documented disc piracy on a commercial scale was carried out by inventor Joseph W. Jones. For a time, Jones had worked in Emile Berliner’s laboratory, where he was able to observe the disc-production process. After leaving Berliner, Jones applied for a patent on a coin-operated disc machine in 1897. Employing a feedscrew–driven reproducer, it did not infringe Berliner’s patent specification that the reproducer be propelled solely by the record’s groove. [8] On the strength of that filing, New York investor Albert T. Armstrong entered into an agreement with Jones in November 1897 under which Jones was to license his mechanical-feed phonograph to Armstrong and supply disc records for those machines. Soon after Jones’ patent was granted on March 3, 1898, the venture was incorporated as the Standard Talking Machine Company. [9]

Problems with record production arose almost immediately. Apparently unable to produce satisfactory masters at first, Jones resorted to copying commercial Berliner releases, retaining the original Berliner catalog numbers preceded by a “1.” Researcher David Giovannoni’s analysis of a surviving specimen, including comparison to the source Berliner recordings, offers conclusive evidence that the master was a pantographic copy, rather than an electroplated copy as had previously been thought. [10] Jones did indeed invent a disc pantograph, although he did not get around to filing a patent application on the device until early 1902.

 

Although Joseph W. Jones did not file a patent on this disc-copying pantograph until January 1902, he almost certainly employed this or a similar device in making his pirated masters from Berliner Gramophone pressings. (U.S. Patent and Trademark Office)

 

The pirated records were marketed for use on the Wonder Bell, a twin-horn phonograph manufactured by the Conn Instrument Company. Wonder Bell’s 1898 catalog listed hundreds of obviously pirated Berliner recordings, but there were also scattered titles for which no Berliner equivalent is known to exist, which might represent Jones’ earliest attempts at recording his own masters. Unfortunately, examples of these isolated instances have not been located for analysis.

Labeled Wonder Record, and crediting the Standard Talking Machine Company, the seven-inch embossed-label discs were pressed in a red fibrous compound that was a marked contrast to Berliner’s black shellac. They were on the market by the spring of 1898, advertised as “indestructible records, made by a new process.” [11] Berliner sued for patent infringement in June 1898, and Standard Talking Machine suspended operations a short time later.

 

Nearly all of the records listed in this 1898 Wonder Record catalog bear the same numbers as Berliner Gramophone discs, preceded by a “1” (i.e., Wonder Bell 192 corresponds to Berliner 92). As researcher David Giovannoni has pointed out, this extensive catalog “was probably aspirational rather than operational.”

 

Armstrong and Jones rebounded quickly. They launched a second venture in the autumn of 1898, this time operating as the American Talking Machine Company. Unlike Jones’ previous venture, this one enjoyed legal protection under license from the American Graphophone Company (Columbia), which was attempting to break into the disc market. Columbia agreed to manufacture Jones’ disc machines provided that Jones could supply satisfactory disc records, which he did in 1899. [12] Sold under the American Talking Machine Record Disk label, the seven-inch discs were pressed in the same fibrous red material  as the earlier Wonder Records.

The American Talking Machine records no longer bore Gramophone-based catalog numbers, although Jones continued to pirate Berliner material. Thus far, David Giovannoni has conclusively identified ten issues using masters pantographed from Berliner discs. However, he has also located four recordings, all by Dan W. Quinn, that are obviously original Jones masters — three credit the American Talking Machine Company in the spoken announcements and the fourth, although unannounced, has the same characteristics as the announced masters. He has also located four American Talking Machine discs using masters of uncertain origin.

In September 1899, Emile Berliner declared (with only partial justification, as the evidence above shows) that American Talking Machine discs were pirated from his recordings. The accusation drew a sharp response from American Talking Machine officials, who offered a $1,000 reward for the arrest and conviction of “parties circulating false and malicious statements” about their products. [13] The manager of Berliner’s Philadelphia office was arrested at one point, further escalating hostilities. [14]

Accepting Berliner’s claim at face value, The Phonsocope reported, “The red disks advertised by this company are copies of regular Gramophone records and considering that they are quadruplicates from the original they are not half bad, if all are as good as those our representative heard.” [15]  Although the extreme rarity of American Talking Machine records makes it impossible to ascertain the proportion of pirated to original recordings, it is clear that pirated Berliner recordings, including at least one of British origin [16] , were now being intermixed with Jones’ original wax masters. [17] This would be consistent with the company’s claim that it was operating a recording studio on Third Avenue in New York.

Jones certainly was capable of producing acceptable original masters by then. In October 1899 it was reported that he was about to depart for London, Paris, and Madrid, where he would make recordings for the foreign markets. [18] Further evidence of Jones’ ability to make original recordings is found in the sworn affidavit of musician Charles Rech, who recalled having made records for Jones’ slightly later Vitaphone label with a band directed by Otto Schreiber. [19]

American Talking Machine’s master sources became a moot issue in April 1900, when Columbia suddenly withdrew its patent protection for the company in favor of the Universal Talking Machine Company, effectively putting an end to the operation. Its last known advertisement appeared in The Phonoscope‘s October 1900 issue (some contents of which suggest it actually was published in December), but Armstrong would soon resurface with his American Vitaphone Company. In the absence of Jones, it would be largely a pirating operation.

Berliner would see his discs pirated again, this time more openly, by the Universal Talking Machine Company for use on their new Zonophone machines. Frank Seaman’s National Gramophone Company (Universal’s sales agent) originally sold Berliner products, but by the end of 1899 Berliner was refusing to fill most of Seaman’s orders as legal sparring escalated between the Gramophone and Zonophone interests. In the meantime, Seaman had begun marketing unbranded seven-inch discs that bore more than a passing resemblance to Berliner’s, for use on the Zonophone. [20] The stampers were electroplated from commercial Berliner pressings, with Berliner’s trademark and patent information neatly effaced, but the original Gramophone catalog numbers and other markings left intact. [21]

Any doubts that these were pirated from the Berliner discs were dispelled by former Zonophone salesman Frederic MacLean, who in a 1900 affidavit declared that he had seen “a large number of matrices made from the commercial records of the Berliner Gramophone Company” in the offices of the National Gramophone Company, “part of these matrices still having on them the patent marks and titles and names of the artists. The other matrices had these patent marks and names erased.” [22]

 

Advertisement for a Zonophone disc pirated from Berliner, with the Berliner Gramophone logo and patent notice effaced but retaining the original Berliner catalog number and other markings.

 

It was also obvious that the Duranoid Manufacturing Company, which pressed Berliner’s Gramophone  discs, was not the source of these pressings. Duranoid employee William Gwinnell testified that the pirated records were not “as bright and brilliant” as the genuine object and possessed “a recess at the side of the center hole” that was never present on pressings made for Berliner. [23] Furthermore, Gwinnell noted that the Berliner matrices were secured at the Duranoid plant, to which no employee of the Universal Talking Machine Company had ever been given access. [24]

Still, Frank Seaman refused to concede that the records he was marketing were pirated. On the contrary, he considered the masters to be his personal property, since it was he, rather than Berliner, who had engaged and paid the performers. [25] That claim was refuted, at least in part, after some discs submitted as evidence in Seaman vs. Johnson were proved to have been pirated from masters recorded for Berliner by Eldridge Johnson, who had paid the performers. [26]

Circumstantial evidence suggests that the availability of Universal Talking Machine’s pirated pressings undermined sales of genuine Berliner discs in 1899. Berliner’s annual disc sales had been growing at a healthy rate since the mid-1890s, and there was every expectation that they would continue to do so in 1899. Instead, they inexplicably declined from 1898’s level. [27] Universal Talking Machine’s pirating activities continued into at least the summer of 1900. [28] By then, however, the company had begun to produce original Zonophone recordings in its own studio, under the management of John C. English, eliminating the need to rely on pirated material.

For a time, it looked as if Universal Talking Machine itself might be a victim of outright counterfeiting. In the autumn of 1903, it was discovered that Morris Keen, David Keen, and Benjamin Futernik (doing business in Philadelphia as Keen Brothers & Company, and the Keen Talking Machine Disc Record Company) were selling what were thought to be counterfeit embossed-label Zonophone records, at half the price of genuine pressings. [29] Unlike the earlier pirated recordings, these appeared to be unaltered copies, identical in every way to the genuine item. In filing for an injunction, Universal president John A. McNabb suggested the stampers might have been made by electroplating commercial Zonophone pressings:

I am informed that the Defendants have on hand something like 100,000 records containing the word Zonophone thereon… . Such number of records were never sold by this Complainant to these Defendants, nor could these Defendants have ever received any such number of records of Complainant, without Complainant’s knowledge. … The said records have been made without any license from this Complainant to use the word Zonophone, from this Complainant’s matrices, as the infringing records herewith produced are evidently copies of Complainant’s records, it being quite possible by known process to produce a matrix from a commercial record… . [30]

But that would not turn out to be the case. By November, the source had been identified as the Auburn Button Works, Zonophone’s own pressing supplier. The records were found not to be counterfeits, but genuine embossed-label Zonophone pressings that Universal had returned to Auburn as unsalable after introducing its new paper-labeled Zonophone discs. Auburn, without the knowledge or authorization of Universal officials, disposed of them to H. A. Caesar & Company (a dealer in discounted and remaindered merchandise), which sold approximately ninety cases of the records to the Keens. [31] On December 23, 1903, a preliminary injunction to prevent further sales was served on the Keens, who simply ignored it. They eventually were found in contempt and fined $300 plus court costs. [32]

Emile Berliner and Eldridge Johnson both experimented with anti-piracy measures, although not very successfully. Berliner discs exist on which the end of the spoken announcement slightly overlaps the start of the performance, a strategy also employed in Europe by the Anglo-Italian Commerce Company and some other early producers. The foreign Berliner operations briefly attempted to thwart copying by faintly embossing their trademarks across the playing surface. Some Berliner pressings made during 1900 in England and Canada show the “Recording Angel” and “His Master’s Voice” trademarks in the playing areas — the latter being the first appearance of that trademark on a record. The practice probably did discourage electroplating by devious operators, but it also added to the discs’ already troublesome surface noise and was quickly discontinued. Several years later, the Berlin-based International Talking Machine Company began inserting short sections with an altered groove pitch on some of its masters, which served as an easily visible watermark that did not affect playing quality.

Albert Armstrong was back in business by late 1901, sans Jones and now operating as the American Vitaphone Company. [33] His new venture initially dealt in legitimate Victor and Zonophone products in connection with a new idea — a record club. As an inducement to join the club, Armstrong ran an exchange program under which customers could receive credit toward new records when they turned in old ones, or could obtain a new Victor phonograph for $12 and the exchange of an “old-style” Berliner Gramophone. [34] But Armstrong also marketed his own 7″ paper-labeled American Vitaphone Records. The catalog was a mixture of pirated Columbia, Victor, and Zonophone material, with a smattering of Jones’ original American Talking Machine recordings (some of which were simply surplus ATM pressings with new paper labels affixed). Although intended mainly as premium-scheme bait, the records were also sold outright by some retailers, including Harry Hardesty & Company, the Victoria Talking Machine Company, and the E. J. Morgan Bluing Company (all three of which were owned by Hardesty, who had close ties to Armstrong).

 

These American Vitaphone discs show the catalog numbers of the Columbia issues from which they were pirated. Columbia 1676 was released in January 1904, confirming that American Vitaphone was still a going concern at that point.

 

From the start, there was absolutely no doubt the records were pirated. Electroplated from commercial pressings, the American Vitaphone labels, and sometimes the pressings themselves, showed the original manufacturers’ catalog numbers. The Victor Talking Machine Company finally took legal action in 1904, charging Armstrong with pirating its records as well as infringing its recently approved red-label trademark. [35] But with a court date looming, Victor officials were unable to locate Armstrong or any trace of his Vitaphone operation at the various addresses given, as secretary Arthur Middleton testified:

Company made diligent effort to secure the address of the said Armstrong and of the said American Vitaphone Company, and had a man especially employed for the purpose, but was unable to find the said Armstrong and the said American Vitaphone Company, as [both] were moving from place to place. [36]

With Armstrong finally tracked down, depositions were taken in late August 1904, and the trial commenced in September. Among some less-than-reputable witnesses for the defense was Winant Van Zant Pearce Bradley, whose Talk-O-Phone Company had recently been sued by Columbia for patent infringement, and who offered nothing substantive in his deposition. Armstrong claimed the Vitaphone records were never sold, but were just given away in premium schemes. He was contradicted by one John Everett, who testified that he had purchased Vitaphone discs outright at two of Harry Hardesty’s stores. Everett noted that Hardesty’s clerks had misrepresented the discs as “Red Seal” records, [37] supporting Victor’s contention that Vitaphone’s use of a red label was causing confusion in the minds of consumers and tarnishing the Victor Red Seal’s prestigious image. Samuel H. Rous, a Victor studio manager and jack-of-all-trades, testified that his microscopic comparison of a Victor record and its pirated Vitaphone counterpart proved conclusively that the recordings were from the identical source. [38]

Citing unfair competition, Judge Lacombe granted a preliminary injunction on October 4, 1904. [39] The injunction was made permanent several weeks later, and a formal cease-and-desist order was served on November 5. Armstrong died soon after the order was served, and a planned appeal was abandoned. [40] In November 1905, the American Express Company sold the remaining unclaimed American Vitaphone property at public auction.

American Vitaphone had been a fairly well-publicized operation, and its vanquishing seems to have discouraged further domestic pirating activities, if only temporarily. By November 1908, the problem had once again become so serious — particularly in regard to pirated Red Seal records — that Victor dispatched a circular sternly warning dealers against purchasing what it termed “dubbed records.” [41]

The chief offender was the newly launched Continental Record Company. Incorporated in New Baltimore, New York, on September 28, 1908, Continental was the latest in a string of shady ventures connected with Winant V. P. Bradley. [42] As a former officer of the Ohio Talking Machine and Talk-O-Phone companies, and sales agent for the International Record Company — all ventures that blatantly infringed key Columbia and Victor patents  — Bradley was no stranger to the courts.

 

Bradley’s announcement of Continental records included the spurious claim that the company had the legal right “to so reproduce” other producers’ records.

 

Continental pirated commercial Fonotipia and Victor recordings by some of those labels’ leading operatic celebrities. Regular commercial pressings were electroplated to produce the stampers, from which the Fonotipia and Victor markings were rather clumsily effaced. Speculation that the records were pressed offshore proved to be incorrect. Bradley later testified that the pressings were American-made, although he did not disclose the manufacturer. The Auburn Button Works seems the most likely source, based on physical characteristics of the discs, Bradley’s earlier affiliation with Auburn’s International Record Company subsidiary, and the fact that Auburn was in need of a new pressing client following IRC’s forced closure the previous year.

Whatever the source of Continental’s pressings, they could be purchased for substantially less than the records from which they were copied. With no artists to be paid or studios to be maintained, Bradley was able to offer the records for as little as 60¢ each, approximately one-quarter the price of the originals (he would later insist that 60¢ was just the wholesale price, claiming they retailed for double that amount — a price that still undercut the original records’ by a substantial margin). [43] Continental’s labels and sales materials made the surprisingly frank disclosure that each disc was “a duplicate of an original record,” a move that Bradley apparently saw as affording him legal protection. Some discs bore reverse-side labels stating that they were for use only on mechanical-feed phonographs, a ploy that had already failed International Record and others in their unsuccessful attempts to skirt patents on lateral-cut recording.

 

This rare Continental “forecast of a catalog” included recordings pirated from Fonotipia (shown here) and Victor.

 

Victor officials were aware of Bradley’s pirating operation as early as November 25, 1908, when general manager Louis Geissler warned distributors not to handle the records. [44] Columbia officials apparently first became aware of the Fonotipia piracies in January 1909, after Bradley approached a record dealer named Fernandes with an offer to sell him cut-rate Continental records by major operatic celebrities. [45] Recognizing them as Victor and Fonotipia recordings (the latter being legally imported and sold by Columbia at the time), Fernandes purchased several and forwarded them to Victor and Columbia headquarters, where careful aural and physical inspection confirmed they were copies. The Edisonia Company also turned over eighteen Continental records to Victor officials for inspection in January 1909. [46]

Attempts to locate Continental’s place of operation were foiled at every turn. Suspicions had been aroused as early as December 1908, when New York Talking Company salesman Virginius Moody took it upon himself to visit New Baltimore (where Continental Record claimed to be headquartered), only to discover that no one there had heard of the company or any of its incorporators. Moody managed to track one of the listed supposed officials to a Manhattan address, only to discover that the individual had no connection to Continental. Other New York Talking Machine employees also failed in their attempts to locate Continental’s office and factory. [47] Moody then paid a visit to Bradley, who refused to divulge the company’s address and warned that all further attempts to deal with the company would have to go directly through him. [48]

In February 1909, Victor dispatched Frederick Blount to Continental’s supposed New York City address, at 147 W. 35^th Street, which proved to be that of the Herald Square Storage Company. Unable to gain entrance, Blount reported that the building was apparently unoccupied, in a state of “uncleanliness,” and showed no signs that Continental had a presence there. [49] Albert Middleton, in preparing Victor’s case against Continental, had to settle for identifying the defendants as “Winant V. P. Bradley and others who are conspiring and confederating with him, whose names are unknown at this time to the complainant, as they are manifestly attempting to conceal their identity.” [50]

With evidence mounting that the Continental Record Company was a fictitious entity, Fonotipia and Columbia officials filed a bill of complaint against Bradley himself on February 1, 1909, seeking a temporary injunction and restraining order on grounds of unfair competition. [51] Horace Pettit, Victor’s legal counsel, took similar action against Bradley two weeks later. [52]

There was no doubt that the Continental masters had been electroplated from commercial pressings. Columbia recording manager Victor Emerson testified,

The Continental records are more scratchy and less pleasing to the ear than the corresponding Columbia [Fonotipia] records, but in other respects the execution is identical for each pair. … I unhesitatingly state my expert opinion that each Continental aforesaid and the corresponding Columbia record were obtained from the same original execution by the singer; and that each Continental record is a duplicate obtained from an identical specimen of the corresponding commercial Columbia disc record. [53]

Victor recording expert James W. Owen stated that a Continental record by Antonio Scotti was undoubtedly pressed using a stamper electroplated from a Victor pressing, based upon his microscopic comparison of the two versions. Victor spared no effort in making its case, submitting depositions from artists whose records had been pirated (including Scotti and Emilio de Gogorza) and a host of company employees, executives, and expert witnesses.

In his defense, Bradley submitted a twenty-two page affidavit that began with a rambling summary of recording-industry case law as he saw it, including citations of fifty-five legal cases with which he claimed to be familiar. [54] He did not deny that he was making duplicates from other companies’ records, but claimed he had a right to do so because (among other reasons) some pressings he had electroplated had been purchased from the Canadian Berliner company, which he incorrectly maintained had pirated those very recordings from Victor. [55] Bradley’s claim that the pirated records were equal in quality to the originals was easily dismissed. An examination of the records during the course of the trial led U.S. Circuit Judge Thomas Chatfield to observe that the Continental pressings did not show “the use of as good material in the discs, nor as much durability and freedom from warping as those of the complainants, and a comparison shows in many instances a dulling or far-away effect.” [56] Inundated with affidavits and depositions, Judge Chatfield declared in June that he would delay delivering his opinion to allow time for careful consideration. [57]

A proposed consent decree, served on Bradley on August 9, elicited a startling response. Refusing to acknowledge the decree, Bradley countered with a proposal under which he would be allowed to continue conducting business as usual, provided only that he stop advertising the records as being “duplicates” of equal quality to the originals. Columbia attorney Philip Mauro, in particular, was having no part of it:

Defendant asks to be permitted to continue to pirate our specially executed sound-records, putting out his counterfeit records without giving anyone credit for executing the same, and implying that defendant himself made the record start to finish. And, it would seem to follow from his contentions that, if he could succeed in improving the quality of his output, he could in that case truthfully (and lawfully) advertise that they are copies of ours and as good as ours. Defendant’s form of decree would imply that a poor imitation of the genuine article is unlawful, while a perfect imitation is lawful; that an inferior workman is a wrong-doer while a clever copier is free to pursue his counterfeiting. [58]

The verdict finally came in September, when Judge Chatfield ruled that the Continental operation amounted to unfair competition:

The defendant, Winant V. P. Bradley, has caused copies or duplicates or counterfeits of complainants’ said specially executed sound records to be made…and has thereby unfairly availed himself of complainants’ property, and has to that extent diverted to himself the legitimate business which should and otherwise would go to complainants, to the injury of complainants’ said business and good will. [59]

Permanent injunctions were served prohibiting Bradley and his associates from engaging in any further such activities. They were followed by an order for accounting, with costs and damages to be paid by Bradley, and any profits to be distributed among the complainants. After Bradley declined to appeal, federal marshals were sent to seize all Continental pressings, stampers, and related materials in his possession. [60]

 

Although the injunction in the Continental case had a chilling effect on U.S. pirating activities, foreign pirate labels like Efraín Band’s Disco Aguila continued to flourish. The example pictured here was copied from a Victor recording by Enrico Caruso.

 

Continental would be the last significant American pirating operation until the 1940s. (Opera Disc, which flourished briefly in the 1920s, was not a pirate operation as has often been alleged; its producer owned the masters legally, but not the right to sell those recording outside of Germany.) Nevertheless, pirated records continued to find their way into American consumers’ hands through clandestine channels. The trade papers suggested the pressings were coming from unnamed Asian manufacturers, but no firm evidence of that was forthcoming. More likely sources were South America and Russia. The International Excelsior Record Company, for example, specialized in pirating Gramophone Company recordings by prominent Russian performers in the early 1900s. [61] Its Excelsior Concert Record labels claimed offices in Moscow, London, and Chicago. No evidence of a Chicago office has been found in advertisements or city directories of the period, but the records surface in the U.S. with sufficient frequency to suggest that at least some were sold here.

The largest and boldest of the foreign pirating operations was owned by Efraín Band, an otherwise legitimate record producer. Band operated his own studio and pressing plant in Buenos Aires, Argentina, but he also pirated American and European recordings with abandon for at least two decades, by artists ranging from Enrico Caruso to Paul Whiteman’s Orchestra. [62] He was particularly fond of Columbia, Victor, Fonotipia, and Gramophone Company material.

Like Bradley, Band produced stampers by electroplating commercial pressings. He left the original markings intact at first, but later took pains to efface them. The records were marketed in South America under an array of labels, including Disco Aguila, Fonografía Artística, Mignon, Mundial, Royal, and World. Band’s products are not known to have been legally exported to the United States, although circumstantial evidence suggests he might have been behind the obscure Pan-American label, which pirated Red Seal recordings and was sold here very briefly.

Back in the United States, the ruling in the Continental case served to discourage would-be record pirates as well as legitimate companies that might be tempted to provide services. In December 1922, an unnamed party approached Harry Pace, the producer of Black Swan records, with a proposition that Pace’s plant press records from masters “made by Caruso himself in Germany.” (Since Caruso never recorded in Germany, the reference almost certainly was to Victor or Gramophone Company masters held by Deutsche Gramophon, which had recently been enjoined from selling those recordings under the Opera Disc label in the U.S.) [63] Pace wisely declined, writing to Black Swan backer 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.” [64]  However, Pace apparently was overruled by his new business partner, John Fletcher. Some of the pirated masters were pressed by the Fletcher–Black Swan plant for the obscure Symphony Concert label, which vanished quickly from the market.

Record piracy re-emerged in the mid-1940s, this time as outright counterfeiting. Facilitated by the proliferation of small independent dubbing services and pressing plants eager for any sort of business, shady operators were now copying the original labels to produce what appeared to be legitimate pressings, which were peddled at discount prices. That activity will be the subject of an upcoming article.

Notes

[1] “Pirating,” as used in this chapter, is distinct from “counterfeiting,” in that the latter attempts to duplicate  all attributes of the copied item, including the label name and design, catalog numbers, and (often) markings in the wax. The copied recordings discussed in this chapter are piracies rather than counterfeits per se, having been released under labels other than those from which they were copied.

[2] “Decision on Reduplication.” Music Trade Review (Apr 15, 1905), p. 42. The Talking Machine World and other trade papers indiscriminately applied the term “dubbing” (which technically is the transfer of sound from a playback mechanism to a recording mechanism by various acoustic or mechanical means) to any illegally copied record. Other than some of the early Jones discs, the pirated recordings discussed in this chapter were not dubbed, but rather, were pressed from stampers obtained by electroplating commercial pressings.

[3] “Protests of Provisions of New Copyright Bill.” Talking Machine World (Jun 1906), p. 21.

[4] “Answers to Correspondence.” Phonoscope (Aug–Sep 1897), p. 9.

[5] McCoy, Joseph P. Untitled document (Oct 25, 1901). Edison National Historic Site (ENHS).

[6] Hayes, Howard W. Letter to William E. Gilmore (Mar 27, 1903). ENHS.

[7] Edison Phonograph Co. vs. Dodin & Dodin. U.S. Circuit Court, New York (initial filing Jan 1903).

[8] Jones, Joseph W. “Sound Recording and Reproducing Instrument.” U.S. Patent #600,315 (filed Mar 13, 1897; issued  March 8, 1898).

[9] This company was not related in any way to the later  Chicago-based Standard Talking Machine Company, which marketed legally modified Columbia products for use in premium schemes.

[10]  Giovannoni, David. “Armstrong and Jones Pressings” (unpublished spreadsheet and text, in e-mail to the author, Jan 19, 2024).

[11] “Descriptive Catalogue, Wonder Bell Talking Machine” (undated). Researcher Ray Wile estimated the publication date as c. March 1898, based on known recording dates for the corresponding Berliner discs.

[12] In the end, Columbia did not manufacture any Jones machines, but turned production over to one or more smaller manufacturers.

[13] “$1,000 Reward.” Phonoscope (Oct 1899), p. 5.

[14] “Trade Notes.” Phonoscope (Oct 1899), p. 11.

[15] “Trade Notes.” Phonoscope (Sep 1899), p. 11. Note that actual Phonoscope publication dates at this time generally were two months after the stated cover date.

[16] American Talking Machine Record Disk #1800, an anonymous mandolin and guitar rendition of “March from Rice’s Ragtime Opera,” has been tentatively identified as a piracy of the Musical Avolos’ May 1899 British Berliner recording.

[17] Giovannoni, David. E-mail to the author and others, re comparison of Jones and Berliner products (Dec 24, 2021).

[18] “Trade Notes.” Phonoscope (Oct 1899), p. 11. Jones is described as having “charge of the record laboratory of the American Talking Machine Company.” His departure date was given as Jan 27, 1900 (see note 13 concerning cover-versus-actual Phonoscope publication dates).

[19] Rech, Charles. Affidavit (Jan 27, 1904), in Victor Herbert vs. Universal Talking Machine Manufacturing Co. (Supreme Court, State of New York).

[20] Berliner Gramophone Co. Complaint in Berliner Gramophone Co., Appellant, vs. Frank Seaman, Appelle (May 16, 1901). U.S. Circuit Court of Appeals, Fourth Circuit, No. 412.

[21] Eldridge Johnson was aware of this practice at the time, testifying in December 1900 that the American Record Company, National Gramophone Company, and Universal Talking Machine Company purchased commercial pressings from Berliner for 50¢ each, which they copper-plated them to produce stampers (Johnson, Eldridge R. Affidavit No 1, in Frank Seaman vs. Eldridge R. Johnson. U.S. District Court, E.D. Pennsylvania (Oct 1900 Sessions, No. 20).

[22] MacLean, Frederick C. Affidavit (Sep 3, 1900), in Frank Seaman vs. Eldridge R. Johnson, op. cit.

[23] This refers to the so-called Valiquet notch, a shallow circular depression molded into the discs’ blank reverse sides, meant to engage a pin on the Zonophone turntable. It was named for Louis Valiquet, designer of the early Zonophone machines.

[24] Gwinnell, William B. Affidavit (Aug 14, 1900), in Frank Seaman vs. Eldridge R. Johnson, op. cit.

[25] Frank Seaman vs. Eldridge R. Johnson, op. cit.

[26] Ibid.

[27] Wile, “The American Graphophone Company and the Columbia Phonograph Company Enter the Disc Record Business, 1897–1903.” ARSC Journal (Fall 1991), p. 212.

[28] The Metropolitan Orchestra’s Berliner recording of “Impecunious Davis” (#0967, pictured in this work) was made on February 15, 1900, and subsequently pirated by the Universal Talking Machine Company for use on its Zonophone machines. Given the confirmed recording date, the original Berliner record probably was released in April, at the earliest. Allowing for the additional time needed to produce Universal’s new stampers and pressings, it is unlikely that the pirated version could have been ready for sale earlier than June 1900.

[29] Morris Keen would be no stranger to the courts, finding himself frequently in trouble over alleged patent infringements in his phonographs. He went on to launch the Keenophone Company, which legally produced its own original recordings in vertical-cut format, in 1912.

[30] McNabb, John A. Deposition in Universal Talking Machine Manufacturing Co. vs. Morris Keen, David Keen, and Benjamin Futernik. (No. 32, In Equity. U.S. Circuit Court, E.D. Pennsylvania).

[31] Universal Talking Machine Manufacturing Co. vs. John H. Woodruff, the name “John” being fictitious, Defendant’s real first name being unknown to Plaintiff, and “John Doe,” the name “John Doe” being fictitious, Defendant’s real name being unknown to Plaintiff, co-partners doing business under the firm name of The Auburn Button Works (New York Supreme Court, New York County). The wording is puzzling, given that John H. (Hermon) Woodruff was not a fictional name, but a well-known industrialist and founder of Auburn Button Works.

[32] Universal Talking Machine Manufacturing Co. vs. Morris Keen, David Keen, et al. Circuit Court, E.D. Pennsylvania (Mar 24, 1905).

[33]  According to Armstrong’s deposition in the 1904 Victor lawsuit, the American Vitaphone Company was incorporated in South Dakota, with New York listed as its principal place of business. Testimony from Armstrong, and from American Vitaphone manager Clinton Repp, points to October 1901 as the company’s likely start of operations.

[34]  “Grand Holiday Offer Limited to 30 Days” (American Vitaphone Co. advertising broadside and record list, Dec 1902).

[35]  Victor Talking Machine Co. U.S. Trademark application #42,962 (filed June 9, 1904).

[36]  Middleton, Albert C. Deposition (Aug 24, 1904), in Victor Talking Machine Co. vs. Albert T. Armstrong, et al. (In Equity #8838). U.S. Circuit Court, S. D. New York.

[37]  Everett, John B. Deposition (Aug 24, 1904), in Victor vs. Armstrong, op. cit.

[38]  Rous, Samuel H. Deposition (Aug 24, 1904), in Victor vs. Armstrong, op. cit. In addition to working in Victor’s recording department, Rous recorded prolifically under the name of S. H. Dudley (appropriated from a Black vaudevillian and theatrical entrepreneur of the same period, who never recorded). Rous later managed the cataloging department and wrote the early editions of The Victor Book of the Opera.

[39] Victor vs. Armstrong et al., op. cit. (Oct 4, 1904).

[40] “Decision on Re-Duplication.” Talking Machine World (Mar 1905), p. 11.

[41] “Warning Against ‘Dubbers.’” Talking Machine World (Dec 1908), p. 30.

[42] “New York Incorporations.” New York Times (Sep 29, 1908), p. 12. Directors at that time were said to be Benjamin I. Carhart, E. O. Goodell, and J. C. Cady, Jr., all of New York, with an office in New Baltimore, New York. Bradley (whose name does not appear in the incorporation notice) misrepresented his role with the company as solely that of a sales agent.

[43] Bradley, Winant V. P. Deposition (Mar 2, 1909), in Fonotipia Limited and the Columbia Phonograph Co. (General) vs. Winant V. P. Bradley (In Equity #5-92). U.S. Circuit Court, E.D. New York.

[44] Geissler, Louis F. “To All Victor Distributors and Dealers — Warning” (letter, Nov 25, 1908). Edison Papers (Edison National Historic Site).

[45] Fernandes, P. D. Affidavit (Jan 30, 1909), in Fonotipia and Columbia vs. Bradley, op. cit.

[46] Petit, Albert. Affidavit in Victor Talking Machine Co. vs. Winant V. P. Bradley (Feb 15, 1909). In Equity #5-94. U.S. District Court, E.D. New York.

[47] Beekman, Chester C., John J. Cavanaugh, et al. Affidavits (Feb 1909), in Victor vs. Bradley, op. cit..

[48] Moody, Virginius W. Affidavit (Feb 11, 1909), in Victor vs. Bradley, op. cit.

[49] Blount, Frederick A. Affidavit (Feb 16, 1909), in Victor vs. Bradley, op. cit.

[50] Middleton, Albert C. Affidavit (Feb 16, 1909), in Victor vs. Bradley, op cit..

[51] “Suit Brought Against Bradley.” Talking Machine World (Feb 1909), p. 47.

[52] Pettit, Horace. Bill of Complaint (Jan 16, 1909), in Victor vs. Bradley, op. cit.

[53] Emerson, Victor H. Affidavit (Feb 16, 1909), in Fonotipia & Columbia vs. Bradley, op. cit.

[54] Bradley, Winant V. Z. Depositions (Mar 2, 1909), in Fonotipia & Columbia vs. Bradley and Victor vs. Bradley, op. cit.

[55] The Victor recordings were not pirated, having been legally licensed by Victor for Canadian release by Berliner. Elsewhere, Bradley claimed a right to pirate recordings that had been produced or purchased in foreign countries, declaring that they were not protected under U.S. law.

[56] Chatfield, Thomas I. (Aug 7, 1909), in Fonotipia & Columbia vs. Bradley, op. cit.

[57] “‘Dubbing’ Suit Developments.” Talking Machine World (Jun 1909), p. 27.

[58] Mauro, Philip. Complainants’ Memorandum Upon Settlement of Decree (Aug 27, 1909), in Fonotipia & Columbia vs. Bradley, op. cit.

[59] “Signs Decree in ‘Dubbing’ Case.” Talking Machine World (Sep 1909), p. 45.

[60] “No Appeal Taken in ‘Dubbing’ Suit.” Talking Machine World (Oct 1909), p. 9.

[61] Despite the suspiciously similar names, no connection has been found between this company and the New York–based International Record Company, which produced the unrelated Excelsior label employing strictly local talent.

[62] Escobar, Francisco Garrido, and Renato D. Menare Rowe. “Efraín Band y los Inicios de la Fonografía en Chile [Efraín Band and the Beginning of the Production of Phonograph Records in Chile].” Revista Musical Chilena (Jun 2014), pp. 52–78.

[63] A detailed account of the Opera Disc case will be found in the author’s Recording the ’Twenties (Mainspring Press).

[64] Pace, Harry H. Letter to W. E. B. Du Bois (Dec 23, 1922). Special Collections and University Archives, University of Massachusetts–Amherst. As a major investor in Black Swan, Du Bois was kept well-apprised of matters relating to the company; see “Revisiting Black Swan: The Documented History” on this site.

________

©2024 by Allan R. Sutton. All rights are reserved. Duplication, alteration, republication, commercial use, and/or unauthorized distribution of this article in any form and by any means, including but not limited to AI sampling, is prohibited. Please report violations to: publisher@mainspringpress.com.