Web Battle Is Latest Episode in Old-Time Radio Serials

A little more than two years ago, when the digital music revolution was just beginning to take hold, an entrepreneur from Boston had an intriguing idea: If everyone else was putting music on the Web, why not old-time radio shows?

Pete Kenney, or “Boston Pete,” as he calls himself on the Internet, created a Web site that allowed people to download recordings of old-time radio programs, everything from “Gunsmoke” to “The Shadow,” and he racked up thousands of “hits” a month, winning a loyal following among fans of old-style radio drama. He also got an angry e-mail from the country’s biggest seller of old-time radio programs on cassette--Carl Amari.

Amari, president of Illinois-based Radio Spirits, accused Kenney of trampling on copyrights he controlled and threatened to take him to court. Kenney promptly shut down his Web site, and so did dozens of other Web site operators who had followed his lead.

“Everyone thinks this stuff is in the public domain,” Kenney says. “A lot of us cried and gave up.”

It was the opening blow in a battle that rages today, maybe not quite as loudly as the war between the music industry and fans of MP3, but over many of the same issues. Over the last two years, tens of thousands of old-time radio programs have been made available over the Web in the downloadable MP3 format, free to anyone with a computer and an Internet connection. Some collectors even sell home-recorded CDs on EBay and their own Web sites, with as many as 50 or more shows on a single disk. Meanwhile, Radio Spirits maintains that it has sewn up the copyrights to just about every program that ever aired, and what the enthusiasts are doing is illegal.

But collectors have been trading and selling these old-time radio shows for more than 30 years, with a wink at copyright laws, and they argue, with some justification, that if it hadn’t been for them, most of the programs would have ended up in the dumpster. Some see the company’s effort as an attempt to corner the market on old-time radio shows that not so long ago were thought to have no value whatever.

It’s been nearly 40 years since anyone saw any value in old-time radio, at least in a commercial sense. The first network broadcasts came 75 years ago, and soon the entire country was gathering around the radio to hear Franklin Roosevelt, “Amos ‘n’ Andy,” and the war news from Europe. Then television came along, sponsors and stars deserted radio, and the last few programs were canceled in 1962. Since then, a few revival attempts notwithstanding, radio drama has been as dead an art as whalebone scrimshaw.

But when old-time radio died, thousands of recordings were left behind. Though most shows before 1950 were live, virtually every network program after the late ‘30s was recorded for reference purposes or rebroadcast, usually in the form of pizza-sized records known as electrical transcriptions. Networks and sponsors destroyed these records by the thousands in the 1960s and 1970s, simply to clear storage space. Some records made it into libraries, and others wound up in the hands of private collectors who contacted performers and producers, prowled dusty radio-station storage closets and sometimes smuggled them out the back door.

No one knows how many shows survive, but 150,000 would be a good guess, says author Jay Hickerson of Connecticut, whose “Ultimate History of Network Radio Programming” attempts to catalog every radio program in existence. That’s “barely 1%” of what aired, he says. But it’s enough to fuel a war today.

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Even before the Internet started bringing a new audience to a dead art form, young Carl Amari discovered there was money to be made from it too. Today his Radio Spirits, a subsidiary of MediaBay, Inc., is a $14-million-a-year business, selling lavishly packaged tapes and CDs through its own catalog, bookstores and discount outlets like Costco. Amari says his company has negotiated exclusive agreements with radio-show creators and their heirs, and he insists that just about everyone else is a bootlegger.

Over the last two years, his company has threatened litigation against Web site operators, tape dealers and CD sellers. It sued one Illinois dealer for copyright infringement, settling last year for terms that have not been disclosed. Still, the threat of litigation has done little to quell the Internet activity--many of the Web sites are back, including Boston Pete’s--but Amari says he’s gearing up for a larger-scale legal campaign later this year. Web site owners might be required to pay a fee for each download; tape dealers might be limited to reselling Radio Spirits merchandise.

“I know it makes me look like the bad guy,” he says. “But if it’s protected by copyright, you’re not supposed to sell it. If you went on a Web site and sold episodes of ‘MASH,’ you’d get a cease-and-desist order. Why should it be any different with old-time radio, just because it’s a little older?”

Amari, 37, was born too late to remember when the radio waves were filled with mystery and horror and comedy. He heard his first radio program as a teenager, when a friend’s father played a tape recording of an old episode of “Suspense.” Amari says he was hooked, and by the time he was in college, he had turned a passion for collecting into a business, selling copies of his tapes through his catalog. In that he was no different from dozens of other hobbyists who ran off copies of tape recordings in their basements and garages and sold them by mail-order. But when he started playing the tapes on his campus radio station, Amari got a cease-and-desist letter from a syndicator who controlled the rights to “The Shadow.” So Amari did something unusual: He started paying for licenses.

Since then Amari has put old-time radio on a big-business footing. In 1990 he began syndicating his own old-time radio compilation programs, such as “When Radio Was” hosted by Stan Freberg and now heard nationwide in 300 markets (regionally it’s carried on stations in Ventura, Santa Maria, Palm Desert and El Centro). re-exposing the public to the form. Another of its compilation programs is “Radio Hall of Fame,” which airs on KNX-AM (1070) Friday and Saturdays at 10 p.m. In fact all of the programming on KNX’s nightly “Drama Hour” is licensed through Radio Spirits.

Amari estimates that he sells 6 million cassettes a year. The revenue helped him buy out his two major competitors, Adventures in Cassettes and Radio Yesteryear, and it also allows him to obtain material no one else can get, from archives like the Library of Congress that put sharp restrictions on access. But the most important thing, Amari says, is that he pays for the rights to everything he uses, or he makes sure that copyrights have lapsed and the material is in the public domain. He estimates that about 10% of his gross is spent on royalties--more than $1 million last year. He won’t reveal the full list of programs he claims to control, calling it proprietary information, but he says his staff is prepared to back his claims in court. And he says compensating creators is the right thing to do, even if many hobbyists don’t think so.

“Most of [the hobbyists and dealers] are not paying any royalties,” Amari says. “When you call them on it, they get crazy.

“I can go out to dinner with the people who created these shows, and I can look at them across the table and hear them say, ‘Thank you, Carl, for what you’re doing.’ ”

One of those dinner guests is Irving Brecher. One of the last of the radio producers, Brecher created “The Life of Riley” in 1944, made a star of William Bendix and arguably launched a new kind of program--the sitcom. Brecher copyrighted every script and renewed the copyrights when they expired. But when tapes of the show started to resurface in the ‘70s, in stores and on the air, no one paid him a dime.

“These people are thieves,” says Brecher, 87, of Los Angeles. “People have been stealing my stuff and other people’s stuff over a period of years and I don’t know who has the power and the money to stop them. At my age, I don’t have the energy.”

Now, through Amari’s company, Brecher is finally getting a royalty. “I love him,” Brecher says. But many dealers and collectors are outraged. A check of the Internet turns up hundreds of mentions of Amari’s name, seldom in flattering terms. What galls the enthusiasts, they say, is that they’re the ones who saved the shows in the first place. If Amari won’t tell them what he owns, they can’t tell whether he acquired the rights from the legitimate owners, and they can’t dispute his claims without going to court.

“Essentially one company is attempting to own the rights to everything done on the radio,” says Gordon Payton of Collingswood, N.J., who grosses about $15,000 a year selling tape-recorded copies of science-fiction and horror programs. “It’s like one company trying to own every black-and-white movie ever made and squelch and crush everyone else.”

One thing is clear: Most old-time radio programs are still under copyright, even those that aired 75 years ago. Although sound recordings could not be copyrighted until 1972, the underlying script could be copyrighted as an “unpublished work.” If producers registered copyrights and then failed to renew them, the script and the show are in the public domain. But in other cases, no one bothered to register a copyright--the vast majority of cases, Amari says. And when copyright law was revised in 1976, those unpublished works automatically gained copyright protection. Finding out who owns them can require costly legal research because there is no central record of ownership.

The Library of Congress and other authorities agree with Amari’s analysis. Recent changes to copyright law will prevent most unpublished radio scripts from entering the public domain until at least 2050, says Dennis Karjala, an Arizona State University law professor specializing in copyright law. Until now, collectors and dealers have had little reason to worry about copyright, because the money to be made is so meager, says freelance writer and broadcast historian Elizabeth McLeod of Rockland, Maine. But the Internet has brought everything to a head: Every downloaded radio program cuts into a potential Radio Spirits sale. The trading is already so widespread and anonymous that it may be hard to stop, she says, and if the company pushes further, MP3 enthusiasts may simply be driven underground, making radio programs available on private servers.

Amari, McLeod says, has ticked “a lot of people off. And when people are [mad], they work twice as hard. I don’t know if he can stuff that genie back into the bottle.”