News & Cues: Embracing Bootleggers

by Koka Tarini Siddhartha

November is here. The concerts and music festivals everyone has been looking forward to all year have finally arrived. Along with the happiness this brings to hard-core fans, there’s also the looming issue of bootlegging at live performances. In this post, we discuss bootlegging in the music industry and how it is an undeniable part and parcel of live shows.

How does bootlegging take place at music performances? Is it very common?

Bootlegging music from live performances and unreleased studio recordings is not a new fad. Recording performances without the musicians’ consent or knowledge has taken place since technology permitted it. However, the album Great White Wonder, released by Trademark of Quality Records in 1969, is most commonly referred to as the earliest bootleg album.

This album resulted from Bob Dylan’s disappearance after his accident in 1966, followed by the release of his eighth studio album, John Wesley Harding, in 1967. Great White Wonder consisted of Dylan’s unreleased recordings made with several artists in the years preceding the album’s release. The album was a massive hit, and Dylan became the most popular artist to be bootlegged.

Not going into too much detail, other artists and bands such as Led Zeppelin, The Rolling Stones, The Beatles, Elvis Presley, Prince, and more recently Alt-J and Justin Bieber, have all endured the wrath of bootlegging. Each of these artists has tackled this in various ways, which we will discuss further in the second half of this post.

Like most things, the process of bootlegging has evolved over time. The earliest releases were the product of soundboard recordings, later followed by listeners who would simply press the record button on their stereos to capture music playing on the radio. Then came the concealed recording devices that fans would sneak into concerts, ultimately taken over by the omnipresent mobile phones via which recordings are now made effortlessly.

To answer the original question, bootlegging is in fact very common. With the evolution of bootlegging, we’ve seen a shift from analog to digital recording and exchange of music, with numerous online platforms, especially YouTube, easing and enabling the process. From selling bootleg albums on vinyl or CDs, to online file-sharing websites, the process of making these albums has been simplified and they are either free or much cheaper than before.

So, how is bootlegging different from piracy and counterfeiting?

Unlike piracy and counterfeiting, bootlegging is predominantly concerned with unreleased studio recordings and live performances. Piracy involves the illegal copying of original recordings sold with a (usually obviously) fake cover for a lower cost, or made available for free. Counterfeiting, on the other hand, is the unauthorized reproduction, distribution and sale of an exact replica of the original work.

Despite the commercial nature of bootlegging, the go-to justification for bootleggers is that it does not significantly affect musicians. In their opinion, bootlegs satiate the cravings of fans who have legally purchased the original recordings but also want to get a taste of their favourite artist/bands performing the songs live. Further, amidst other issues that musicians face, such as unlicensed sampling, piracy and negligible royalties, they feel this should not even be a concern.

Just because bootleggers think what they do is fine doesn’t mean it is legal, right?

Absolutely not. Every infringer finds ways to justify their unauthorized use, but from a neutral stance, this definitely violates the law. How, you ask? While copyright laws don’t mention the word ‘bootlegging,’ they do provide for performers’ rights (more here and here). Apart from international agreements, there are also national laws that protect these rights.

The United States Copyright Act, 1976, has two separate provisions (17 U.S.C. § 1101 and 18 U.S.C. § 2319A) which deal with the civil and criminal liability of bootlegging, also referred to as ‘the anti-bootlegging provisions’. The courts and congress have upheld these provisions as constitutional and in line with the objectives of copyright laws and the First Amendment, which protects free speech. Thus, any illegal and unauthorised recording of a live performance which is later converted into a commercial, profitable venture, is punishable.

In the Indian context, Section 38 of the Copyright Act, 1957, extends protection to performers for fifty years. No person can make an audio or visual recording of a performance without the performer’s consent.

Not only performers’ rights, but even moral rights come into play when bootlegging occurs. The Visual Artists Rights Act, 1990 (VARA), in the United States and Section 57 in the Indian Copyright Act, 1957, protects a performer’s moral rights. Bootlegging infringes on a musician’s moral rights as his/her reputation is damaged by unauthorized, poor quality recordings of their shows.

How do artists respond to bootlegging?

Every artist/band takes a different approach to bootlegging. For example, Bob Dylan and Prince are/were absolutely against bootlegging and have sent several takedown notices to online streaming websites that have uploaded clips of their performances. Prince went to the extent of filing lawsuits against twenty-two individuals seeking twenty-two million dollars in damages for having bootlegged his show and later made it available for download.

There are also artists/bands like Phish, Pearl Jam, Bruce Springsteen and Dave Matthews Band who do not mind their shows being recorded as long as they aren’t used for commercial purposes. Many artists have embraced bootlegging and use it to market themselves and their concerts. Some concert organisers even sell official, authorized CDs or USB sticks containing recordings of the live performance, or collect a fee and deliver the recordings the following day.

The ultimate technological advancement is one that has been introduced by websites such as Fan Footage. This is the biggest step towards embracing bootlegging and legitimately monetizing it. Through this crowdfunded initiative, fan-recorded videos are combined with music from the soundboard to which noise from the crowd is added. The fans who are assigned a position at the show are paid for their video recordings and fans seeking to watch the ‘legally bootlegged’ show would have to pay a minimum fee to access it. A win-win situation!

Thus, while there is an evolution in the laws governing bootlegging, musicians are also adopting alternatives and more lenient approaches towards it. On a side note, when you go to a concert, just watch and enjoy your favourite artist/band perform. Why watch it through your phone? When are you ever really going to watch those videos again?

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