were available in the stores, but they weren’t coming from us. I went to the pressing plant in Philadelphia, and I toured the facilities. I couldn’t find any Pearls album sleeves, or any of the Fugs. We had shipped them thousands in advance in anticipation of orders. The sleeves had disappeared. The plant had gone into business on its own with our products, bootlegging them. We were out of business.
And this was the plant that you always dealt with?
Yes.
Was there nothing you could do?
We could have sued them in federal court. We would have had to prove what they were doing, which probably wouldn’t have been that difficult to do, but no federal laws against bootlegging existed at that time. The Johnson regime had found a way to silence our criticism of the war in Vietnam. Strict federal laws were enacted in 1974 to deal with bootlegging, but it was too late for ESP.
How did you come to that conclusion? Did you have anything concrete?
There were hints that we were being wiretapped. Why did the Philadelphia plant suddenly decide to go into business on our product, unless they had gotten a government okay? That was my theory. Why would they deliberately destroy an account, unless they had been authorized or directed to do so? That’s a reasonable assumption.
You saw traces that the records still existed?
They were widely available in the stores! Tom Rapp [of Pearls Before Swine] told the public he had sold two hundred thousand records. I believe this was the correct figure. We had sold twenty thousand to thirty thousand—the rest were bootlegs. The Fugs too, their sales estimates were about the same.
Where did the Fugs and the Pearls go from there?
Tom Rapp and Ed Sanders were approached by a CIA man, who signed a personal management agreement with them and took them to Warner Brothers Records. He pocketed Tom Rapp’s seventy-thousand-dollar advance and disappeared. Both groups no longer wrote or recorded songs that challenged the war, so they had been effectively silenced.
Did the bootlegs affect the jazz titles as well?
They weren’t selling. The U.S. distributors tolerated our jazz; they put it on their shelves on consignment, and they could return it any time. They weren’t legally obligated to pay for it until they sold it. Once the popular groups were no longer supplied by ESP, they no longer had any reason to handle the jazz, and they returned their stock to us.
As far as that purgatory of the label for the next few years, what did you do for pressing the new releases? It seems that as many as several dozen records were produced between ’68 and ’74.
I have a vague recollection of using another plant, whose product was of poor quality. In 1974 our remaining stock was sold to an Italian company, as I faced reality and closed the company.
Regarding the COINTELPRO surveillance, did you have any signs that you were being spied on?
I moved from 156 Fifth Avenue, where our offices had been, to an apartment house at 300 West 55th Street, on the top floor, in 1969. I engaged in a telephone conversation with someone, and I used an obscure phrase. Then I got a call from a prominent music industry lawyer, asking me whether I wanted to take on a client. As we chatted, he used the identical phrase. The likelihood of a coincidence was very remote. I concluded that the government was monitoring my phone calls. And he was in on it.
Do you see all that springing from your having two pop bands who were political, particularly the Fugs?
Lyndon Johnson’s daughter got married, and the East Village Other album recorded the broadcast on August 6, 1966, intercutting the announcer gushing about the ceremony with ghastly audio images from the war. That was the first blow. The second was “Uncle John,” a song by Tom Rapp of Pearls Before Swine, which labeled Johnson a war profiteer. The third was “Kill for Peace,” a song by the Fugs. Johnson would have been enraged.
What was your reason at the time for not selling to Warner Brothers?
I had just started the label. Why would I cash out? It would show me as an opportunist—which was not how I saw myself. And I sensed that this was a ploy sponsored by the government to shut us down. Our government has two ways to deal with opponents: one is dirty, and the other is to throw money at them.
Did these troubles dog you beyond that period?
It was a very dark period, during which I lived in obscurity as a state government lawyer until I retired at sixty-two. I reopened ESP in 2003, at the age of seventy-four.
In the mid-1970s, you did continue to work in music a little. Didn’t Columbia Records even hire you for a while?
They actually signed a producer agreement with me to find new talent for Columbia, and I brought them a roster of candidates who were artists that I would have issued on ESP. I signed a deal with them for the Charlie Parker broadcasts, recordings that I had bought from Boris Rose. I acted as the middleman. They wouldn’t deal with Boris Rose, an underground individual, but they would deal with me. I went to Washington with my wife as volunteers on Jimmy Carter’s transition team following his election, and I lost that connection by being out of touch.
I had assisted my lawyer brother Norman to obtain employment with a major music lawyer, and he eventually became vice president for International Legal Affairs for Columbia Records, based in London.
But how did Columbia think of you, at that point in time?
In 1965 I had contacted Columbia custom pressing. They sent me a salesman, Bruce Lundvall. Eight years later, he was the president of Columbia Records. He and I negotiated the licensing agreement for the Charlie Parker material, and he hired me to scout for new talent for Columbia.
With regard to the legendary Boris Rose, and the many radio broadcasts that he taped, what was the legal status of such material, some of which ESP released over the years?
He did this night after night for almost forty years, fifty-thousand hours of live music. The vast bulk of it is in the public domain. The courts have not dealt with whether radio and television organizations can assert any legal interest in their broadcasts apart from the rights of producers of shows. No copyright existed in sound recordings until 1974. No right of publicity exists in the estates of deceased artists if they were residents of New York. The courts have never adjudicated whether broadcasts are in public domain, and the broadcast organizations prefer that it remain a gray area to minimize exploitation of these materials. The rights of living artists to protection against unauthorized use of their names, likenesses, and performances are now protected by copyright laws and laws regarding the right of privacy, unauthorized exploitation, and unfair competition. ESP contracted with the estates of Charlie Parker and Billie Holiday.
How did ESP manage to continue in that period of 1968–74? Where were the resources?
My mother had lent me a certain amount of money. Much of it remained, as we had been largely self-financing. My rent was low and my expenses were as well.
We did some sales, but from 1968 to 1974 there was no longer distribution. We limped along. In November 1974, I got married and we moved to my country place, Acorn Hill House in the Catskills. I had no employment, and my wife wasn’t working. In 1979 I took the federal and
