LITMIR.BIZ

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shares to one share for each of the sidemen. That is the ESP formula. All the performers share in the benefits of the sales of the record.

      Whether downloads or record sales, we have become efficient in our accounting practices. We did not pay substantial royalties during the first years or during the years we were out of business. We didn’t pay royalties on the licensing either, because licenses were general advances, and then we’d receive absurd, fictitious royalty statements that were useless for this purpose.

       So what did you do wrong, and how did musicians understand what was wrong, or right? Are there any particular things that you can point to as your failures in that era?

      I have no regrets over any decision that I made during that time. My commitment to document the music was total. So, although I received criticism, it was more from people who didn’t get recorded than from those who did. And of those who did, some were verbal in the first few years, but as time went on, they became far more tolerant, recognizing how important their first record was to their career. Few records ever recouped their production costs in the early years.

       Was there a point where this bad reputation was beginning to surface?

      Writers have written critically about ESP regarding its royalty accounting practices. Our artists, as they have mellowed, are far more sympathetic to the label, and they now often cite its importance in launching their careers.

       And certainly a number of the musicians kept coming back to you, complaints or not.

      Yes. There is no ESP musician today with whom I can’t communicate amicably, or who would decline to work with ESP regarding a retrospective or current project involving his or her work.

5 Decline and Fall

       In 1968 the label fell over the edge. What were the circumstances? How did that come about?

      I had a team of four, including the shipping clerk and his assistants, who were the Godz. We had three albums on the charts by the Fugs and Pearls Before Swine. One was at position 30 on the pop charts. We were hot. Then, I received a call from an industry figure associated with Warner Brothers—that Warner wanted to buy our label. And I said no. One morning, weeks later, the phones stopped ringing and the orders stopped coming in. Obviously, something was going on. The records 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,

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