Record Bootleggers Tap Niche in Music Market : Recordings: What they sell are not counterfeits, but usually live performances picked up on the sly.

By RANDY LEWIS

Nov. 9, 1990 12 AM PT

TIMES STAFF WRITER

Bootlegger.

The very word conjures up images of backwoods whiskey stills, underworld gangsters prowling smoke-filled speak-easies and square-jawed federal agents fighting to bring beady-eyed wrongdoers to justice.

But that’s the Hollywood image from decades past. If you want to find an honest-to-badness bootlegger nowadays, check the rented banquet hall at a nearby hotel or community center on the right Sunday morning, and there he’ll be.

This one isn’t selling illicit liquor--just records and tapes.

Like the basement moonshine of their forebears, record bootleggers’ product is an unauthorized version aimed at a highly specialized audience, which may or may not need to know the password to gain access.

Bootleg records usually are live concert performances recorded on the sly, or studio outtakes that bootleggers get their hands on through whatever means. Among the most widely bootlegged artists are Bob Dylan, Bruce Springsteen and the Beatles (collectively and individually).

Bootlegs are not to be confused with “counterfeit” records and tapes, which are meticulous fakes created to replace existing hit albums. In other words, bootlegs are albums for which there is no legitimate, legal counterpart.

Less than two weeks ago, Buena Park police made a massive raid on a monthly swap meet at the Sequoia Athletic Club, at which they confiscated an estimated 10,000 illegal records and tapes and other merchandise, such as souvenir T-shirts and posters.

According to a representative for the Recording Industry Assn. of America, the music business’s lobbying arm that also certifies records gold or platinum, the industry loses “hundreds of millions of dollars each year” because of unauthorized recordings.

Exact figures, though, are hard to come by. Steven D’Onofrio, head of the RIAA’s anti-piracy division, said that in the area of counterfeiting, which he said “clearly is the No. 1 problem in the industry,” 15 manufacturers have been put out of business nationally this year by law enforcement authorities. Those, he said, were producing a combined 19.5 million units of counterfeit merchandise annually.

By comparison, authorities have seized 15,185 copies of bootlegged recordings in the first six months of 1990, according to RIAA figures.

There’s some question whether the estimated losses the RIAA talks about represent legitimate product that goes unsold (i.e., does someone buy a Beatle bootleg instead of a legitimate album?) or whether it’s just potential royalties that go unpaid by bootleggers (even if they buy the bootleg in addition to whatever is released officially, the artist--and his or her record company, and publisher, etc.--only get paid for the legitimate release).

“I suppose a case could be made that if a fan loves some artist enough to get a bootleg album, they are going to buy the legitimate album too,” acknowledges Bob Merlis, vice president/publicity director for Warner Bros. Records, one of 55 RIAA member companies that incorporate hundreds of individual record labels. “Whether it’s a lost sale for us is subject to debate.”

Nevertheless, he said, the fact that bootleggers can produce records at all “is like putting an important marketing decision in the hands of a thief.”

Even acts such as the Grateful Dead, who long have encouraged fans to bring tape recorders to their concerts, draw the line at commercial exploitation of those recordings.

“In general, the band’s attitude (about concerts) is that when we are done with the music, you can have it,” Grateful Dead spokesman Dennis McNally said recently by phone from London, where the group was touring.

“It’s fine with us if tapes are swapped, shared or traded--as long as it’s not done for money. . . . Ninety-nine percent of the tapers are people who are legitimate and just trade, and they have contributed mightily to the growth of the Grateful Dead,” McNally said.

But to that 1% who make bootlegs to sell for profit, McNally said: “The band has just as much objection as anybody else. . . . If I am aware of a bootlegger, I call up our attorney and he writes them a (cease and desist) letter.”

“You finally get these good jobs, and go out trying to promote your own product and then you see somebody out there selling tapes of your show,” said Orange County blues musician James Harman, who frequently tours the United States and Europe to promote several small-label albums by the James Harman Band. “It’s a compliment to your music, but it’s also your business. Basically somebody is trying to make a dime off of your work and you don’t get to have any part of that.

“I collect tapes of touring bands too, and whenever we come home from a tour, I always have a pile of tapes waiting for me,” Harman said. “I feel like that’s no problem--they get passed around among friends, and I don’t think that affects sales of your product.

“But when somebody tapes you, manufactures and sells it--somebody who is not part of your organization--that’s wrong,” Harman said.

“You don’t see Hershey flying over the country with a plane and dropping Hershey bars on everyone,” he added. “You’ve got to go to the store and buy them. When there’s free beer and chicken every place, I’ll be glad to sing for free.”

Still, those who get caught up in the dragnet when the RIAA tips local authorities aren’t always big dealers, capable of doing an artist any real economic harm. They tend to be the small fry.

And “it’s a shame they have to harass these little dealers,” said Art Fein, a former record company publicist and lifelong record collector. “Most of these people are gypsies and vagabonds. Yes, they are making money. . . . But none of them is getting rich. If they were, they wouldn’t be there” at monthly swap meets.

“The economics of it is that these bootlegs are lucky to sell 2,000 copies each,” Fein said. In an industry where artists often have to sell 300,000 copies of an album just to break even, “no record company would ever put them out.”

Which raises another question: Is the bootlegger in fact providing a service to listeners and artists alike, by making material available that is noteworthy but not necessarily commercially viable?

Many bootleggers say they came into the field as fans, at first trading their own tapes of concert recordings to other fans, then dubbing off larger quantities as they discovered a market for unreleased recordings.

In recent years, many states have adopted laws to complement federal protections on copyrighted material, laws that the RIAA’s D’Onofrio said have led to a greater number of felony convictions for those who deal in bootlegs.

Still, the ever-increasing sophistication of recording technology--portable tape units barely larger than cigarette packs are capable of capturing live performances with astonishing fidelity--makes the prospect of completely eliminating bootleg records virtually impossible, D’Onofrio conceded.

For that matter, said Grateful Dead spokesman McNally, “with the advent of certain technological phenomena, you can pass all sorts of information around. After a while, everything will get out.”