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A Place in History

by Glen Emerson Morris
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The phrase "the best part of the show was the commercials," is about as old as commercial broadcasting itself. It's frequently a true statement even when the programming is pretty good, because, quite often, the commercials are good entertainment by any standard. Just as generations grew up, romanced, and raised children to the tunes of pop music, they also grew up to the tunes of commercial jingles. Some commercial tunes, like "No Matter What Shape Your Stomachs In," even appeared on the charts themselves.

It's unfortunate that so much of the commercial landscape of the past has been lost; local used-car dealers, furniture dealers, tailors, morticians, uniquely doing their own commercials in hundreds of local markets. (A sixty-minute video collection of the more bizarre car dealer commercials of the fifties would probably be a best seller.) More has survived from the national level, but much of that is at risk. For a number of reasons, the advertising industry never made much effort to save its work, either for history's sake, or for the public's sake, either.

Once again, the industry is at a crossroads, and what the industry does, or doesn't do, will affect what our industry leaves for history. In the next year or two, the fate of some 30 years of advertising from the golden age of radio will be decided. Whoever is determined to be the owner of nearly all of old time radio, either the public, or Radio Spirits, will have the ultimate say in whether these commercials survive. The advertising industry, if it chooses, could well determine which of these contenders will inherit 30 years of radio history (which, incidentally, the advertising industry paid for in the first place.)

That the golden age of radio (1930 to 1960 approximately,) could be considered as anything but pubic domain came as a surprise to the many in the advertising industry. It also came as a surprise to the OTR fans who've collected OTR over the past 35 years. According to senior OTR collectors, broadcasters and advertisers rarely made much effort to save the transcription disks OTR shows were recorded on. Instead, collectors found the disks in flea markets, in estate sales, even in their neighbor's attics, and over the years they salvaged about 80% of all the national radio shows ever broadcast. Over the years, Radio Spirits, now a MediaBay subsidiary, systematically bought rights to those shows, from varied, and largely undisclosed, sources.

In late 1999, Radio Spirits threatened a number of OTR distributors, fans and small businesses alike, with legal action for distributing OTR shows that Radio Spirits claimed the rights to. No one had the money to go to court, so many of the OTR sites on the Internet disappeared, and at least one business stopped selling OTR material completely.

Despite these events, many in the advertising industry continue to believe most OTR shows are really public domain, and not without reason. Under current copyright law, anything published from 1923 to 1963 without a copyright notice is considered public domain. On face value, this law would seem to mean that most OTR shows would be public domain since they were broadcast without copyright notices. Some shows, like the Green Hornet, did have a copyright notice in each episode (which clearly showed some people understood, and used, copyright protection,) but most shows had no copyright notice at all.

If the position that most OTR is public domain is correct, dozens of major advertisers are losing a lot of free advertising because of Radio Spirits. Many OTR fans prefer to listen to shows with the commercials still in them, and in many cases it's hard to cut the commercial out without losing part of the show. Johnson Wax commercials, for instance, are an essential component of hundreds of Fibber McGee & Molly shows and the company is still in business. Jack Benny creatively worked Lucky Strike commercials into his shows, and he made over 900 of them. It's not surprising that OTR fans buy OTR shows by the hundred (100+ OTR shows in MP3 format will fit on a single CD, and OTR fans sell them for $10.) Meanwhile, Radio Spirits is selling boxed sets of 60 OTR shows on cassettes for about $60, making large scale collecting both space consuming and costly.

Given the alternatives, it would be far better for the national advertising community if OTR were determined, once and for all, to be public domain, including the commercials. It could be managed legally so no advertiser's trademark rights would be compromised, and consumers and businesses alike would be free to distribute 200,000+ radio shows with some of finest commercials ever produced. It could be the biggest free advertising campaign of the last two centuries.

To this end, Advertising & Marketing Review is proposing that laws be passed in Colorado to protect old time radio, and the commercials that are a part of it. They are part of our national heritage, and they ought to be preserved. If the public is willing to preserve them for us, the least we can do is give them a chance. First, to protect OTR in general, we need a law that directs Colorado courts to presume any OTR show broadcast without a copyright notice to be in the public domain. Second, we need a law that allows commercials to be included in OTR shows, for historical purposes, without the permission of the trademark owner, whether the OTR is distributed by a lone OTR fan, or a large-scale business. This law would involve relieving the advertiser of any liability arising from those commercials, and also relieve the OTR distributor from any trademark infringement litigation, as long as the commercials were not altered in any way.

The public would benefit from these proposed laws, and so would the advertising community. With a younger generation just discovering old time radio, the timing couldn't be better. All it will take to make these laws reality is some modest effort by the appropriate trade groups and politicians, altogether a small price to pay for a place in history.

Copyright 1994 - 2010 by Glen Emerson Morris All Rights Reserved

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