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 state civil service exams, at the age of fifty, and obtained employment as a staff lawyer with the New York State Department of Transportation, at seventeen thousand dollars a year, which was not enough to cover our living costs.
In that period between ’68 and ’74, did the label’s difficulties affect your choices as a producer?
Putting out a record for commercial reasons was never contemplated. It would have been very detrimental to our credibility.
Did these difficulties provide an occasion for new alliances in some way?
Bruce Lundvall at Columbia Records provided us with needed funding from the independent producer agreement and the Charlie Parker licensing. Phonogram in Europe licensed some titles, but the agreement was cut short after two years, presumably under pressure from the U.S. government. Then Japan Phonogram surfaced and licensed titles from us in 1970.
Did the decline that began in 1968 affect your past relationships with musicians?
Not really. I don’t think they were aware of our troubles. Major labels were signing them. Some were getting teaching positions in colleges and universities. Their ESP albums had given them passports to careers. They weren’t preoccupied about sales of their first album.
According to the ESP catalog, even though the company shut down in 1974, you did continue to produce some records afterwards. What was that all about?
While I had no funding, I kept producing records. It was irrational, as these productions had no apparent future. I believed ESP would return to operation.
After eleven years in government service, I retired in July 1991, with a small pension and social security. In December of that year came a proposal from the German dance label ZYX to release every ESP title for the first time on CD. I sent them all of our masters, including several that had never been issued, creating the graphics for those that had never been packaged for release. The catalog became 125 albums. They released all of them, with a forty-two-page color brochure, and sold them worldwide, providing ESP with renewed interest from the music industry and the music-buying public.
How did you end up buying the farm near Woodstock?
I had purchased tickets to the original Woodstock Festival in 1969, but access was blocked by the state police. Instead, I visited a real estate broker in Ellenville, New York, and looked for a secluded property bordering state land for a country home. I found an idyllic parcel of seventy-five acres, with meadows and woods and a stunning view of a mountain peak. Acorn Hill House was my weekend home until 1974, when we moved there. Onno Scholtze, our audio engineer from Philips Phonogram in Holland, had brought his family to live there for a while at the beginning. He found employment with a manufacturer of audio tape, and he opened a recording studio in our old red barn. Onno recorded two young Native American rock musicians from Florida in the meadows of the farm: Sun Country [in 1969; the band later reformed as Tiger Tiger]. The Tiger brothers were sons of Buffalo Tiger, chief of the Miccosukee tribe, a branch of the Seminoles. They had met my father in Florida, where my parents had retired, and he sent them to me. Members of the tribe wrestled alligators for tourists; in later years, they opened a casino in Miami and became wealthy.
What was the perception of the label in this period of decline, among musicians?
We didn’t talk about it with anyone.
Did you take on any outside legal work through this time, in or out of music? How much did others know about your predicament?
I never sent out distress signals and did little legal work, except for Dizzy Gillespie.
6 On Individual Artists
Bernard Stollman was asked to speak more at length about a number of the artists who recorded for ESP.
Albert Ayler
Albert produced four records for ESP: Spiritual Unity, Spirits Rejoice, Bells, and New York Eye and Ear Control. Spirits Rejoice was done in Judson Hall [September 23, 1965], which we rented solely for recording purposes. W. Eugene Smith, the famous photographer, came by and took pictures of the session. So did Guy Kopelowicz, the Associated Press photographer from Paris, a good friend of the label. ESP recently acquired tapes of Albert’s last performances in 1970, at the Fondation Maeght in the south of France. Several years ago, Revenant Records acquired the tape of his performance with Cecil Taylor in Copenhagen, as well as recordings from Cleveland and elsewhere, and issued the Holy Ghost box set. All rights to these performances now belong to ESP.
As Albert was recording his session at Judson Hall, I asked him whether he would be willing to do a short work. He smiled resignedly and nodded in agreement. One of the songs on Spirits Rejoice, “Holy Family,” is the result. It is less than three minutes in length. I realized, to my chagrin, that I had violated our commitment to recognize the artist as the sole authority to determine the content of his work, and I vowed to myself that it would never happen again.
ESP staged a concert at Town Hall on May Day, 1965, which yielded the Bells album as well as Giuseppi Logan’s More. While Albert was waiting to perform, he asked me to the basement for a private talk. His musicians would not play until they were paid, he told me with some embarrassment. It was early in their careers, and they were apprehensive as to whether they would be paid. I had the necessary funds, so I paid them.
In 1966 he asked me to visit him at his aunt’s apartment in Harlem. He told me he had been invited to sign with Impulse. They were offering him a $2,500 advance and he asked for my advice. I said, I thought it might help his career, to have the support a major label could provide. We lost touch with each other after that, as he recorded several albums for Impulse, produced by Bob Thiele.
He came to visit me in November 1970 and told me with much satisfaction that he had a quarter-million dollar deal to tour Japan for the first time, in December. He played me a tape he had made of spirituals, taking them way out. They were magnificent, but my hands were tied. Two weeks later, he was found dead in the East River, under circumstances that are still unknown.
We represent Albert’s estate now. His wife, Arlene; his daughter, Desiree; and a son all live in Cleveland. Desiree has a son at Ohio State on a football scholarship and a daughter who is entering a nursing career. Albert’s father is in his nineties, and his brother