Last week, we posted an item about the acetate of the first version of The Velvet Underground & Nico going on auction on eBay. (As I write this, the bidding is up to US $107,000.) This weekend, I got an email from a friend who said that he was downloading a digital copy of this album.
So here is my question: are either of these piracy? The auction of the physical artifact and the digital download of the music purportedly ripped from that physical artifact. Is the auction somehow not piracy, but the download piracy?
How is it possible that somebody is able to auction this off in the first place? Where is Verve Records? Or Lou Reed? Or the estate of Andy Warhol? Is it because this is 40 years old and there is no clear owner of this music? And the winner of the auction becomes the owner?
Or is there a clear owner of the music, and what is being auctioned off just the disc itself, and the winner can’t really do anything with it for their own profit?
There is no doubt that it has a ton of historical value: there is a ton of surface noise on these recordings, but if that can be removed, Velvet Underground fans the world over would be very interested in a cleaned up version. I know that I would: I’ve been buying legit versions of Velvets bootlegs that I’ve already owned ever since VU and Another View came out in the mid-1980s. I bought those despite the overlap with the The Velvet Underground etc. and The Velvet Underground (and so on) bootlegs that I’d owned for years.
That’s the nature of bootlegs: fans want more from their favorite artists, but there really is no way for any record company to satisfy that demand.
Or there wasn’t. In a weird way, it may have started with the Grateful Dead and Pearl Jam. Both bands had always knowing that there was an insatiable demand for bootlegs of their live shows, and being fans enough of other people’s music to understand why, they decided to do it themselves. For The Dead, it was the Dick’s Pick’s series — dozens of shows from their entire career — and for Pearl Jam, the Live Bootleg series. By understanding their fanbases, and taking advantage of relatively cheap means of distribution, both bands created their own Long Tails.
Other artists got this, and nowadays, you see all sorts of artists doing digital-only one-offs for eMusic or iTunes or their own websites. It’s cheap, it’s easy, and it’s the wave of the future. Noone has to sell a whole lot of anything for it to be a good deal for all involved: fans get more music; artists make their fans happy and keep their names out there; and the smarter record companies get a bit more income with minimal outlay.
And actually, The Velvet Underground themselves have been part of this: their live albums in the 1970s were essentially legitmate bootlegs; and they put out their own Bootleg Series CD a few years ago. Maybe whomever buys this will be able to do the same.
The auction is clearly not piracy in the same way that selling used records isn’t piracy. It’s an artifact that’s being auctioned for its historic value. The acetate is a relic and one hopes that whoever is bidding this up over $100k is aware that the rights to reproduce are not included in that price.
Lou Reed or John Cale could step up at some point and make the claim that they are the rightful owners of the acetate, but then they would have to prove their ownership in some way. Since the acetate was cut from a demo reel that was financed by Andy Warhol, I suppose you could make the case that the Warhol estate are the rightful owners. But even if any of these hypohtetical ownership disputes were occur, they would simply be property disputes – not piracy.
A copyright infringement would occur if whoever buys this acetate attempts to reproduce the recording for commercial release.
As an interesting side note, take a look at the Q&A’s for this auction. There is apparently another acetate floating around. Moe Tucker supposedly found it in her basement a few years back. The seller denies the existance and suggests that the questioner contact Moe Tucker for confirmation.
I tried sending her an email last night, but it bounced. Moe, if you’re out there, what’s the story??