Chuck Miller on the first controversial hit recording using samples of other songs:

[I]n June 1956, [Dickie] Goodman came up with an idea. “Bill Buchanan and I were writing some songs at the time,” said Goodman in a print interview, “trying to break into the business. We were sitting around and suddenly we got an idea. How would it be if we had a disc jockey show being interrupted by reports of a flying saucer – THE FLYING SAUCERS ARE REAL! – and suddenly the Platters line (from “The Great Pretender”) came to me – ‘Too real when I feel what my heart can’t conceal’ and we said ‘Hey!’ and we didn’t know any better so we put the thing together.”

Within a few days, Goodman and Buchanan spliced together a four-minute reworking of Orson Welles’ “War of the Worlds” radio broadcast. Goodman played “John Cameron Cameron,” an unflappable reporter interviewing people, officials and even the Martians themselves. Buchanan was heard as a title-mangling disc jockey (allegedly based on Alan Freed), who interrupted a Nappy Brown dance number with news of an invasion from Mars.

Buchanan: We interrupt this record to bring you a special bulletin. The reports of a flying saucer hovering over the city have been confirmed. The flying saucers are real!

Radio:Too real, when I feel, what my heart can’t conceal… (from the Platters’ “The Great Pretender”)

Buchanan: That was the Clatters’ recording, “Too Real!”

And that set the pattern. Goodman would interview eyewitnesses about the spaceship, whose responses were the lyrics of popular songs.

Goodman: This is John Cameron Cameron downtown. Pardon me madam, would you tell our audience what would you do if the saucer were to land?

Witness: Duck back in the alley (from Little Richard’s “Long Tall Sally”) . . .

The record continued. While the flying saucer landed on Earth, Buchanan and Goodman greeted its arrival with more splices, in-jokes and primitive technical wizardry.

Goodman: This is John Cameron Cameron on the spot. And now I believe we’re about to hear the words of the first spaceman ever to land on earth.

Martian: “A WOP BOP A LOO MOP A LOP BAM BOOM” (from Little Richard’s “Tutti-Frutti”) . . .

The duo shopped their pastiche to every record label in New York. Nobody was interested; many record execs dismissed the recording as a cheap “sampler.” Undaunted, they took the tape to radio station WINS, where disc jockey Jack Lacy agreed to play it. He gave the song a couple of airings, then let the next DJ – Alan Freed – play the track during his show.

Meanwhile, Buchanan and Goodman visited George Goldner, a producer at Roulette Records. In a print interview with Art Fein, Goodman remembers that meeting. “We were in George’s office, but before we got a chance to play our record, one of his salesmen burst in and asked if anybody knew about a record that was played on WINS the night before – something about Elvis Presley and spacemen. Everybody in town wanted it. George took it on immediately.”

* * *

Although the record was an immediate hit in New York, it took a couple of weeks for the rest of the country to catch on. The NBC and ABC radio networks initially banned the song, because they didn’t want any listeners misunderstanding the gag record as an actual announcement of an invasion. Other parts of the country couldn’t get their hands on the record fast enough. In Cleveland, for example, the record was so scarce that stores were charging customers as much as $1.75 for each copy.

Meanwhile, the Music Publishers Protective Association, through the offices of its trustee, the Harry Fox Agency, claimed “The Flying Saucer” was guilty of at least 19 different instances of copyright infringement and unauthorized usages. “If we can’t stop this,” said one record insider to Billboard, “nothing is safe in our business.”

“No industry exec believes [Buchanan and Goodman] have a leg to stand on in their use of copyrighted material and other disk artists without permission,” said an unnamed source to Variety.

But although the record companies publicly moaned and wrung their hands over the issue, they initially let the publishing houses go after Buchanan and Goodman for copyright infringement, rather than litigate the matter themselves. Part of the reason may have been because “The Flying Saucer” actually increased sales of records included in its collage. For example, because a snippet of “Earth Angel” was part of “The Flying Saucer,” requests for the Penguins song forced DooTone Records to reissue their hit. As an unidentified publishing representative told Time magazine, “It’s the greatest sampler of all. If you’re not on ‘Saucer,’ you’re nowhere!”

Some record company executives questioned whether Buchanan and Goodman actually infringed on any rights at all. The fragments were all part of ASCAP’s and BMI’s libraries, and Buchanan and Goodman’s lawyers argued that the question was really whether “The Flying Saucer” contained any material that wasn’t part of those two libraries. One record exec told Variety that he was ready to forget the whole business and just let the record run its course. Another industry lawyer said that because of all the publicity this case received, he didn’t think anybody would dare make another “snippet” record for at least another decade.

After much negotiation among all parties, an agreement was finally reached. The publishing houses would split 17 cents in royalties from every 89 cent copy of “The Flying Saucer” – approximately 1 cent for each publisher per disc sold. Buchanan and Goodman could still sell their single, and the song was finally cleared for jukeboxes and radio airplay.

By August 15, 1956, “The Flying Saucer” had sold 500,000 copies in three weeks, and was a regional #1 hit in Pittsburgh, Louisville and Cleveland. By the end of August, “The Flying Saucer” had doubled those sales figures, and climbed as high as #3 in Billboard’s and Variety’s national sales charts, just behind Elvis Presley’s two-sided hit “Don’t Be Cruel”/”Hound Dog” and the Platters’ “My Prayer.” In some cities, “The Flying Saucer” actually beat Elvis for a few weeks in sales and local airplay. Jukebox owners purchased three or four copies of “The Flying Saucer” for their businesses – and a couple extra for themselves. Disc jockeys loved the song, and began working on “break-in” collages of their own.

Some of those “break-in” records actually made it to disc – many of them while “The Flying Saucer” was flying up the charts. . . .

The publishing houses were furious. Instead of “break-in” records stopping, now they were multiplying like weeds in a garden. In an attempt to limit the production of new “break-in” records, the publishing houses demanded an increase from the standard two-cent royalty for each song used, to eight cents per song from each of the new “break-in” discs!

Many of the smaller companies simply gave up. . . . Plus Records . . . pressed 53,955 copies of an Elvis-themed “break-in” record, “Dear Elvis, With Love From Audrey” . . . , but could sell only 30,000 copies before the increased royalty rate was assessed. As part of a settlement agreement, Plus Records turned over the master of “Dear Elvis” to the publishing houses, who promptly destroyed the master.

In November 1956, Buchanan and Goodman began work on their second single, “Buchanan and Goodman on Trial” (Luniverse 102), a “break-in” record satirizing their experience in the courtroom. With Little Richard as their defense attorney and a jury full of Martians acquitting the “break-in” duo of all charges, “Buchanan and Goodman on Trial” became both a moderate hit and a not-so-veiled jab at the legal system.

This time the record companies fought back. Four record labels – Imperial, Aristocrat, Modern and Chess – along with two performers, Fats Domino and Overton Lemon (Smiley Lewis), filed suit in New York District Court for an injunction against all Buchanan and Goodman recordings, as well as $130,000 in compensatory and punitive damages. They also wanted 6 cents per single for use of such songs as “Ain’t That A Shame,” “Maybelline,” “I Hear You Knocking” and “Hard to Tell” on the two Luniverse singles. Two publishing companies, Commodore Music and Arc Music, joined in the suit, both refusing Luniverse’s original penny-per-sample out-of-court settlement from the first trial.

During the trial, Saul Goodman, Dickie Goodman’s father and co- counsel for the defendants, brought a copy of “The Flying Saucer” into the courtroom as Exhibit A. “My grandfather took it up to the judge,” said Jon Goodman,” and he asked the judge to take it home and listen to it. At first the judge didn’t want to do it, but he went ahead and did it.”

The next day, judge Henry Clay Greenberg denied the injunction, writing in his decision: “The defendants [Buchanan and Goodman] artfully and cleverly have devised interesting novelty records which make use of portions of records of successful performers under exclusive contract with the plaintiffs and others … In this highly competitive industry, the fruits of labor may be gathered in or lost quickly … Undoubtedly some considerable value attaches to the portions of the plaintiffs’ records which have been adopted by the defendants … the court is not able to determine whether or not the defendants have exceeded the bounds of permissible fair competition … A temporary injunction ought not to issue in a case unless the offense is clear.”

“The judge later said that the “Flying Saucer” was a satire, a parody, a new work – a burlesque, in effect – and there was no reason to charge Luniverse with violation of anybody’s copyright,” said Jon Goodman. “There were out of court settlements – they arranged clearances for the publishing houses and whatever. My father made the Harry Fox Agency, which was in charge of collecting mechanicals and royalties, a more interesting organization to work with.”

* * *

In fact, Goodman’s snippet records may have been the rock equivalent of the compositions of John Cage, David Tudor and George Rochberg – using tape recorders and phonograph records as instruments, slicing up reel-to-reel tapes and resplicing them at random; creating new recordings from the fragments of old ones. It was the music of indeterminacy, as Luciano Berio composed “Sinfonia” by quoting from a Mahler symphony and fragments of a theatrical production. It was new uses for old technology, as Ferrante and Teicher plucked the wires of a “prepared piano” for a harp-like sound. Music barriers were being torn down, as Edgard Varese’s aural symphonies influenced the work of Frank Zappa; and as Karl-Heinz Stockhausen’s electronic compositions left an indelible imprint on the Beatles’ “Revolution No. 9.”

And Dickie Goodman may have been the first to turn this “music of indeterminacy” into pop recordings. Other unsuccessful attempts at “break-in” records could be found as early as the 1920′s, according to syndicated radio host and music expert Dr. Demento. “In 1928, The Happiness Boys (Billy Jones and Ernest Hare) recorded a comedy sketch for Victor called ‘Twisting the Dials,’ about listening to the radio. It used a few snatches of other phonograph records to simulate the music that was encountered while ‘twisting the dials.’ The record was not a big seller. Spike Jones and Stan Freberg often used quotes from existing songs for humorous effect, but not bits of actual hit records. I would say that for all intents and purposes, ‘The Flying Saucer’ was the first successful release in that genre.”

* * *

Goodman’s legacy is still alive today. . . .

And most of all, he wants anybody who ever sampled a track, anybody who ever transposed a lyric into an entirely new song, anybody who had to contact the Harry Fox Agency to determine proper mechanical rights – to remember Dickie Goodman. “This is what I was meant to do. What I’m trying to do is stop something that can last forever from fading away. I’m trying to save my father’s work.”

On September 15 at 6pm I’ll be speaking at SPACES on the interrelationships of art, law, and technology. SPACES is a gallery, a resource, and a public forum for artists who explore and experiment. To find it, go here.  There will some minor similarities, I suppose, to the talk I gave at the Cleveland Institute of Art two years ago, but this one promises to be significantly different and better.

All in all, the same brilliance that created a legacy for Albert Barnes would ultimately undo his legacy. Since the time of Barnes’ death in an automobile accident in 1951, the Barnes Foundation has been a case study in how an institution, created by a brilliant mind with clear intentions, can become irrevocably damaged through overly restrictive operating guidelines, unanticipated leadership problems, and the competing missions of other organizations and institutions. Much attention has been paid to the forces at work against the foundation, but in fact the seeds of destruction were sown by the hands of Barnes himself. As history has proven, decisions he made in life imperiled the perpetuity of his collection after death.

Barnes made every effort to preserve the vision of his creation after his death. For the past 60 years, what we have seen at the Barnes is what Barnes put there himself. At this moment, however, Barnes’ art collection is being removed forever from the walls he built for it. Barnes knew he was creating something unique in the annals of American art. He was also right that outside forces would emerge to alter his project after his death. What he never anticipated was that the very defenses he put in place to preserve his collection would eventually contribute to its undoing.

I can’t help but feel that part of the problem in the Barnes Foundation dispute was the way we glorify ownership. As Panero reports, Julian Bond, the son of Barnes compatriot and Lincoln president Horace Mann Bond, expresses the view of those who opposed the move of the Barnes Foundation collection to urban Philadelphia by stating: “The art belonged to him. He had the right to do with it as he chose, and these people, these vandals, stepped in and took it away from him.”

But do we really want someone controlling the fate of $30 billion of art (much of it bought from desperate sellers during the Depression) 60 years after his death pursuant to instructions that make no sense at all if one is concerned about the art as culture?

The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt.

They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.

There are a number of questions one might raise in response to Mr. Turow and his colleagues. For one, there are not many law professors other than the notoriously ineffective Charles Nesson who defend the legality of unauthorized file sharing. (To question the assumption that file sharing has a material impact on the music and publishing industries is, on the other hand, a different matter.) To conflate file sharing with tranformative appropriation in discussing copyright is the genuinely misleading rhetorical move. And Shakespeare may not be the best example to use in arguing that copyright and innovation necessarily go together. One might wonder, in fact, whether there really is such a thing as a sui generis artist, be that artist Shakespeare or Robert Johnson. Nor could one argue that there were no great artists and writers prior to the advent of what the Turow and his colleagues describe as “paywalls” around theaters or before copyright. Indeed, at least in certain markets the absence of copyright protection does indeed promote innovation. The very premise of Turow’s argument — that in the absence of the economic monopoly conferred by copyright creativity like Shakespeare’s simply won’t happen — is hardly indisputable.

Perhaps Judge Alex Kozinski, referencing Scott Turow of all people, put it best in dissenting from the 9th Circuit’s refusal to rehear en banc a case in which Vanna White successfully sued Samsung for violating her “right of publicity” by “appropriating” her “identity,” emphasizing that overprotecting intellectual property is as dangerous as underprotecting it (footnotes omitted):

Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts. Clint Eastwood doesn’t want tabloids to write about him. Rudolf Valentino’s heirs want to control his film biography. The Girl Scouts don’t want their image soiled by association with certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it “Star Wars.” Pepsico doesn’t want singers to use the word “Pepsi” in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year’s Eve. Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see purple when their creations are made fun of.

Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains.

So too it is with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture. . . .

But what does “evisceration” mean in intellectual property law? Intellectual property rights aren’t like some constitutional rights, absolute guarantees protected against all kinds of interference, subtle as well as blatant. They cast no penumbras, emit no emanations: The very point of intellectual property laws is that they protect only against certain specific kinds of appropriation. I can’t publish unauthorized copies of, say, Presumed Innocent; I can’t make a movie out of it. But I’m perfectly free to write a book about an idealistic young prosecutor on trial for a crime he didn’t commit. So what if I got the idea from Presumed Innocent? So what if it reminds readers of the original? Have I “eviscerated” Scott Turow’s intellectual property rights? Certainly not. All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy.

Turow and his colleagues are guilty, I think, of the “bad medicine” of “reducing too much to private property.” Perhaps Turow would describe me as a law professor advancing “counterintuitive” arguments, but he runs the risk of embodying (and profiting mightily from) a culture that has an unprecedented tendency to “propertize” everything it can and a blindness to the ways law cannot stem new practices made possible by technology. The inarguable truth is that the music and publishing industries once had virtual monopolies on the production and distribution of their products and that they no longer do. Those industries have largely reacted by trying to enforce a legal regime that grew up with and required the old means of production and distribution, which seems to me at least not the most productive way of promoting creativity.

Turow appears to be among the reactionaries trying to use the force of law to overcome reality. Last year he complained that publishers had made a mistake in making publishing e-book versions of writers’ works at the same time they published the book versions, agreeing with a publisher’s assertion that “there’s something radically wrong” when a market has the power to cause the value of a book to plummet.  When the publisher expanded on the point by stating that “I want to be able to say that a new book by Scott Turow is worth $28, and people should be willing to pay that,” Turow agreed, justifying his entitlement to the price by arguing that “[t]here is nothing wrong with [copyright holders] maximizing their profits . . . . If we really want to have a robust literary culture, then we have to think about the compensation system.”

I would suggest to the publisher and Turow that there might not be anything wrong with maximizing profits but that there might indeed be something wrong with charging a price that reflects the costs of printing and distributing books when the market now can deliver a product that need not be printed and that can be delivered virtually for free.

What is “intuitive” to Turow and the point of view he represents is that your creations are as much your property as your car or your computer. But “intellectual property” is not property in the same way as personal or real property. The very source of our nation’s copyright laws, the Constitution’s Copyright Clause,  makes clear that copyright law exists to promote invention and creativity, and to the extent it discourages invention and creativity it is unconstitutional. Nonetheless, Turow and many others cannot seem to overcome some “moral” conviction that to allow others to profit off of your creations is somehow to “steal” something from you. Again, Judge Kozinski in the Vanna White case quoted above, eloquently states the response to this “moral claim” (footnotes omitted; hyperlinks added):

Moreover, consider the moral dimension, about which the panel majority seems to have gotten so exercised. Saying Samsung “appropriated” something of White’s begs the question: Should White have the exclusive right to something as broad and amorphous as her “identity”? Samsung’s ad didn’t simply copy White’s schtick–like all parody, it created something new. True, Samsung did it to make money, but White does whatever she does to make money, too; the majority talks of “the difference between fun and profit,” 971 F.2d at 1401, but in the entertainment industry fun is profit. Why is Vanna White’s right to exclusive for-profit use of her persona–a persona that might not even be her own creation, but that of a writer, director or producer–superior to Samsung’s right to profit by creating its own inventions? Why should she have such absolute rights to control the conduct of others, unlimited by the idea-expression dichotomy or by the fair use doctrine?

To paraphrase only slightly Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S340], __, 111 S.Ct. 1282, 1289-90, 113 L.Ed.2d 358 (1991), it may seem unfair that much of the fruit of a creator’s labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the system’s very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it

In July of 1798, Congress passed – and President John Adams signed – “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.

Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind. . . .

The law did a number of fascinating things.

First, it created the Marine Hospital Service, a series of hospitals built and operated by the federal government to treat injured and ailing privately employed sailors. This government provided healthcare service was to be paid for by a mandatory tax on the maritime sailors (a little more than 1% of a sailor’s wages), the same to be withheld from a sailor’s pay and turned over to the government by the ship’s owner. The payment of this tax for health care was not optional. If a sailor wanted to work, he had to pay up.