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Popsong Piracy

Or, Napster in the 1930s and the Story of Fakebooks

By Barry Kernfeld | Issue #22

In April 1930, in a raid on bootleg song-sheet peddlers on Broadway between 42nd and 43rd, Traffic Patrolman Broger made the first arrest: Mrs. Sarah Yagoda, age 80. After a Music Publishers Protective Association representative and the district attorney interrogated Mrs. Yagoda in a failed attempt to identify the sheet's printer and distributors, she was allowed to go home. Nine years later, nothing much had changed in Times Square. The New York Times noted that "on any afternoon or evening, if the magistrate sitting in West Side Court is known to be lenient, the area north of Forty-second Street is a beehive for the street sale of song sheets," as well as watches, French pictures, neckties, jewelry, flowers, and suspenders.

Bootleg song sheets emerged in 1929 as newspaper-sized sheets of pop-song lyrics. Later, they evolved into song-lyric magazines. These products appeared in response to sweeping changes in the way Americans related to pop songs. The recording industry had become a powerhouse; nationwide AM radio networks were in place, and movies with sound delivered musicals far beyond the Broadway theater district. Increasingly, people made music not by gathering around the piano and singing, but by singing along with electronic media: recordings, broadcasts, and films. Because musical notation was no longer essential, lyrics-only song sheets became popular. Instead of paying 35 cents for one piece of sheet music, music fans could get a sheet of lyrics to many songs for only a nickel or a dime.

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These bootleg song sheets elicited a hysterical response from the music industry, which fought against the sheets for roughly a decade, using every legal ploy available. Eventually there were more than 5,000 arrests in North America: for peddling without a license, vending without the consent of the copyright owner, criminal copyright infringement, and conspiracy to violate the laws of the United States of America. Nothing worked. "Song-legging" flourished. While the MPPA pursued its policy of heavy-handed prohibition, including, as the 1930s ended, a systematic crackdown on nearly 100,000 newsstands nationwide, a few music publishers took a different tack. Much like Apple with its iTunes today, these pioneers embraced the new medium instead of fighting it, and produced an industry-approved alternative: legiti-mate song-lyric magazines. The mag-azines took off, with the leading ones, Song Hits and Hit Parader, flourishing for decades. The bootleg market dried up and thus the crackdown ended in the 1940s.

Pop song piracy moved into a new arena with the appearance of the first "fake book," a sort of cheat sheet with lyrics and performance cues for musicians, in 1949. Unlike the earlier song sheets, which disseminated pop songs to the general public, fake books began as sampling later would, as a tool for professional musicians. Only later, in the 1970s, did fake books spread out into the general marketplace.

Bootleg fake books originally derived from a legitimate source. In 1942, George Goodwin, a radio-station director, initiated a subscription service, the Tune-Dex, which he hoped would serve as a card catalog for the music industry, helping individuals in film, radio, recording, and advertising in the day-to-day routine of operations involving programming or licensing. The front of each 3- by 5-inch card gave the most familiar phrases of a pop-song melody, with lyrics and chord symbols--shorthand guides to piano and guitar accompaniment. The back of each card identified the copyright holder and the performing-rights agency controlling the song's licensing, and it gave references to published versions of the song.

In May 1942, Goodwin sent out the first monthly issue of 100 Tune-Dex cards. The Tune-Dex was a huge and immediate success, adopted industry-wide. It ran to 25,000 cards and ended in 1963 only because ill health forced Goodwin's retirement. (He died in 1965.)

As an adjunct to his principal promotional campaign, Goodwin promoted the Tune-Dex to professional entertainers in the emerging field of cocktail music. The advertisement "Which of These Worries Are Yours?" appealed to a feeling of musical inadequacy. If a customer requested a song and the musician didn't know it, or couldn't remember it, the Tune-Dex could come to the rescue.

In our day, hip-hop composers sample fragments of recorded jazz and pop and transform these fragments into dance grooves. A half century ago, Tune-Dex cards began to serve as visual aids enabling mainstream entertainers to apply African-American-derived improvisatory methods to notated compositions--to start with a fragment of printed sheet music, and improvise the rest. To use the modern parlance, Tune-Dex cards "sampled" sheet music. It was, in effect, a twist on the old cliché, "If you hum a few bars, I can fake it." Instead, with a Tune-Dex card at hand, "If I read a few bars, I can fake it."

But Goodwin was wrong about the utility of his design. A card catalog was a handy thing to have sitting in a radio studio or an ad agency, but no one in his right mind would bring a card catalog to a cocktail lounge. And having a couple of thousand loose index cards was probably even more unwieldy and disastrous than sorting through loose full-size pages of promotional copies of sheet music or orchestrations (the "pros" and "orks" in Goodwin's ad). What musicians needed was a bound collection of Tune-Dex cards organized by title, by songwriter, or by dance category. A fake book.

The music-publishing in-dustry refused to authorize such a book, asserting that it would undermine sheet-music sales. Gangsters stepped into the gap, filling a new niche in our music economy. The first bootleg fake books, photostat collections of Tune-Dex cards, were published in 1949. A Down Beat magazine article from 1951 refers to an FBI investigation of these books that would continue through the 1960s.

This investigation led to two trials for criminal copyright infringement in Federal District Court in Manhattan, in 1966 and 1969. In both instances, the defendants were found guilty but received only the minimum fines allowed by law. In preparing for the latter case, an FBI special agent interviewed a music-store owner in Akron, Ohio, who celebrated the utility of fake books: "It is his belief that practically every professional musician in the country owns at least one of these fake music books, as they constitute probably the single most useful document available to the professional musician. They are a ready reference to the melodies of almost every song which might conceivably be requested of a musician to play."

Neither the publishers' association nor the government cared that musicians liked these books, and at the conclusion of the trial, Judge J. Weinfeld had this to say: "We have not yet reached the point, at least in this court's view, where an industry custom and practice serves to repeal criminal laws." This declaration sounded forceful and righteous--the law prevails--but it turned out to be hot air. Weinfeld had it backwards: in any meaningful, long-standing, widespread sense, custom and practice held sway over the law. The law had attempted to express a prohibition but that prohibition had been repeatedly ignored, and hereafter it would be permanently ignored. There were no further federal trials surround-ing bootleg fake books. Compared to the new problems raised by record and movie piracy from the 1970s onward, prosecuting fake-books was no longer worth the effort.

Having utterly failed to suppress fake books, the music publishing industry had no choice but to try to incorporate them into the mainstream. In the mid-1970s, publishers began to put out legitimate pop-song fake books. Almost immediately, bootleg fake books faded away. Prohibition failed. Assimilation worked. But no sooner did music publishers learn their lesson than the whole ball game shifted to another field and started up all over again, in the realm of jazz.

During the academic year 1974--75, two students at the Berklee College of Music in Boston created a bootleg fake book called The Real Book. The Real Book endeavored to notate what professional jazz musicians would really play, in contrast to the simplified versions typically given out on sheet music and Tune-Dex cards. Steve Swallow, a professional bassist teaching at Berklee at that time, reports that the students' intention was "to make a book that contained a hipper, more contemporary repertoire. They thought about what would be involved in doing it legally but didn't have the time or money to pay royalties." And so they did it illegally, "publishing" at local copy shops a book of approximately 400 jazz tunes in 1975.

Swallow noticed the effect of The Real Book as he walked past rehearsal rooms at Berklee. "A month after The Real Book was published, all of a sudden I was hearing the right 'changes' to tunes that had been butchered," he observed. "It used to be a hilarious journey down the corridor, to hear the flagrant harmonic violations spewing out of these rooms. It's not to say that all of a sudden everything sounded great and it was Bill Evans at every turn, but there was a huge improvement."

The fact that The Real Book became, unexpectedly, the jazz bible, did not trouble Swallow. He acknowledged that "these particular 400 tunes were canonized at the expense of what they left out, and they left out plenty." But its compilers "were accurately reflecting what college jazz people were listening to at that time and skimming the cream of that repertoire."

Jazz guitarist Pat Metheny expanded on this thought: "It was the first book that reflected the ecumenical nature of jazz," with tunes drawn from swing, bop, blues, ballads, Latin jazz, jazz-rock, and other styles. The Real Book, said Metheny, "caused a few generations of players to have to develop skills that were rare at that time--only the very best players of that era would be able to go from start to finish in that book and be able to deal with the intrinsic musical requirements that such a book would demand. Nowadays, it is pretty common; and in fact, sort of required."

Today, despite the subsequent appearance of numerous legitimate rivals, The Real Book continues to be used extensively due to its unmatched combination of tasteful repertoire and idiomatic representation. It is a story of happenstance, of a casual student effort transforming itself into a creative act of immense significance and surviving only because bootleg fake books were by this time flying beneath the radar, as far as federal criminal prosecution was concerned. Metheny said: "It still is kind of unbelievable to me when I see it almost thirty years later now, on bandstands from Kiev to Bali, knowing its history like I do. Believe me, no one involved would have ever imagined it."

And here we are, in 2004, with shady characters still delivering The Real Book to stores from car trunks, and just about every aspiring jazz musician still lining up to buy a copy under the counter.