Album Economics: Bear's Choice-The History Of The Grateful Dead, Vol. 1 (Why?)

The album cover of the final Grateful Dead Warner Brothers lp, The History Of The Grateful Dead, Vol. 1 (Bear's Choice), released in July 1973

While the Grateful Dead were legends almost from their inception, in their first several years, the albums they released on Warner Brothers played a huge part in spreading that legend. Of course, it was attending live Dead concerts that put people On The Bus, but for most fans in the early 70s, hearing some of their albums sparked the interest or willingness to attend a Grateful Dead concert in the first place. Most of the albums from the band's time on Warner Brothers are revered today, even if they weren't upon release, except one: the band's last release on Warners, in July 1973, with the provocative title of History Of The Grateful Dead, Vol. 1, but usually referred to by its parenthetical add-on (Bear's Choice).

I can recall the anticipation when Bear's Choice was released, and the mystification and dismay when I actually listened to it. Time has not really improved the album's reception. Only the most thorough of Deadheads even recalls it, and the record is almost never mentioned in blogs, tweets or posts, much less with any fondness. As most Deadheads became more knowledgeable about the breadth of the band's music, we became aware that Bear's Choice consisted of tracks recorded from some of the finest Grateful Dead concerts of 1970, and I for one became convinced that the least attractive songs were chosen. The release of a bad, dated live album from a great set of tapes was a strange decision for a band to make, but it was actuallly consistent with the long-gone practices of the 1970s record industry. This post will review the History Of The Grateful Dead Vol. 1 (Bear's Choice) album in its proper context, and make some case for how such a peculiar release came to exist.

The rear cover of Bear's Choice (actually from the cd re-release)

The Bear's Choice Album

Most Deadheads today forget about Bear's Choice, if they ever even knew about it in the first place. Back in '73, however, there were only 10 Grateful Dead albums in existence (including the two dubious ones on MGM/Sunflower, Vintage Dead and Historic Dead). For all but the hippest of the hip in San Francisco or Brooklyn, there were no Dead tapes in circulation. In New York City, at least, there were Grateful Dead bootleg lps circulating, but they too were a rare commodity unknown in the outside world. The Grateful Dead were no different than Ten Years After or The Byrds: if the music wasn't available on LP at your local record dealer, that music didn't exist. 

So when the Grateful Dead left Warner Brothers for their own self-financed label after the release of the Europe '72 triple-live album, it was not surprising to find out that they owed the label one more album. It was pretty exciting for a suburban 15-year old like me to read that they would release an album from three-year-old tapes. For me, 1970 was before I started listening to the Dead, so as far as I was concerned the forthcoming album would pretty much be a time machine, transporting me to the fabled, long-gone days of the Fillmores. But come July, and this strange album came out (details from Deaddisc, of course):

History Of The Grateful Dead, Vol. 1 (Bear's Choice)

Grateful Dead

Initial release : July 1973
Warner Bros. BS-2721
The Dead's last album for Warner Brothers. A single LP of acoustic and electric material from the shows on February 13 and 14, 1970 at the Fillmore East
Tracks

• Katie Mae (Hopkins)
• Dark Hollow (Browning)
• I've Been All Around This World (Traditional, arr. Grateful Dead)
• Wake Up Little Susie (Bryant/Bryant)
• Black Peter (Garcia/Hunter)
• Smokestack Lightnin' (Burnett)
• Hard To Handle (Redding/Isabell/Jones)

Musicians

• Jerry Garcia - acoustic guitar, lead guitar, vocals
• Bob Weir - acoustic guitar, electric guitar, vocals
• Ron "Pig Pen" McKernan- acoustic guitar, organ, percussion, harmonica, vocals
• Phil Lesh - bass
• Mickey Hart - drums
• Bill Kreutzmann - drums

Credits

• Recorded Live by Bear: February 13-14, 1970 at the Fillmore East, New York, NY
• Produced by: Owsley Stanley

Notes
The songs on Bear's Choice are taken from the following shows;

• Katie Mae, Wake Up Little Susie, Black Peter and Smokestack Lightnin' - February 13, 1970
• Dark Hollow, I've Been All Around This World and Hard To Handle - February 14, 1970

At the time Bear's Choice came out, I was probably a relatively typical Deadhead. I was a teenager in the suburbs, I had all but two of the Warners albums (I didn't have Anthem Of The Sun or Aoxomoxoa yet), and I had heard the Vintage Dead lp, but I didn't yet have any of the tapes or bootlegs. I had been fortunate enough to see the Grateful Dead twice already (Winterland Dec 12 '72 and Maples Feb 9 '73), but it all had been pretty overwhelming. Sure, there were crusty 24-year olds in San Rafael, the East Village or Montague Street who had seen the Dead a bunch of times over the years and had at least heard some tapes or bootlegs, but nationally, most Deadheads were more like me than those veterans. 

Of the seven songs on Bear's Choice, three were acoustic, three were by Pigpen, six were covers, and they only electric Jerry song was the mournful "Black Peter" (I think Pigpen played organ on it). While I recognized that the record was a sort of tribute to the recently diseased Pigpen, it was a strange tribute: the "anchor song" was a seemingly interminable blues song ("Smokestack Lightning") that I knew as a Yardbirds cover. The Otis Redding cover ("Hard To Handle") was intriguing, but it had a strange, clunky arrangement. The Everly Brothers song ("Wake Up Little Susie") was cute, but trivial, and it was difficult to process. As for "Katie Mae" and "Dark Hollow" I knew nothing about the Dead's 1970 acoustic sets, nor did most fans--were these typical, or random?

And who was "Bear", and why did he get to choose?

Aoxomoxoa, released in June 1969, and recorded on the Grateful Dead's original contract with Warners

Grateful Dead Record Contracts 1966-1973

The strange, counterproductive tale of Bear's Choice can only be understood in the context of the Grateful Dead's record contracts with Warners, which in turn only makes sense because of industry practices at the time. Despite the Dead's best efforts to break that mold, efforts that largely succeeded, the band fell prey to the least forward looking approach typical of bands at the time, and they did not help their own cause. 

The Grateful Dead's first record contract was signed with Warner Brothers executive Joe Smith around December 1966, although they had agreed in principle a few months earlier and had just spent time negotiating the details. The general outline of the deal was that the Grateful Dead agreed to deliver three albums to Warners, although Warners probably had an option for another album or two, per typical contracts of the time. However, the Dead had made somewhat better decisions than some of their contemporaries. 

For one thing, the Dead's Warner Brothers contract gave them complete artistic control of their albums. For another, while typical album contracts of the era required that a band deliver a certain number of songs (tracks) to qualify as an album (usually 10 in the US), the Dead had a jazz-inspired deal. Thanks to Rock Scully, who had conferred with some jazz musicians, the Dead were only required to deliver a certain number of recorded minutes, like a jazz artist, rather than a specific number of tracks. There were still economic reasons for them to make up song titles on Anthem Of The Sun, but that had to with mechanical publishing royalties (a dense subject I have addressed elsewhere) rather than a record company obligation. The Dead also retained the music publishing rights to their own songs (through IceNine publishing), largely because Joe Smith and Warners did not realize that popular rock songs would have such a long shelf life and did not care (per Smith's own admission). 

By mid-1969, the Dead had produced Aoxomoxoa, their third album, and were in a position to renegotiate their contract with Warners. The band themselves did not know that, however, and manager Lenny Hart negotiated an extension with Warner Brothers without the band members' knowledge. Both Columbia and MGM had interest in the Dead, but Lenny had his reasons for negotiating directly, mainly to get his hands on the advance money more easily. Thus the Dead ended 1969 with an extension from  Warner Brothers. 

I believe that Live/Dead was released (in November '69) as an option on the original contract, and that the Dead subsequently had a five-album deal with an option for two more, but it doesn't really matter. By the end of the year, the Dead had a substantial commitment to deliver more material to Warner Brothers. One of the confusing aspect of old record contracts was that double or triple albums could be construed as single or double albums as part of the contract, subject to negotiation between the artist and the record company. The negotiation was inevitably over how much the record company would charge for the album and what rate the band would get paid at. A band could deliver two albums worth of material to a record company, but the company could release each album separately or simply charge double for the album, wrecking sales. 

Both Skull and Roses and Europe 72 were sold for far less than double or triple retail price, so I think in the case of something like those records, Warners counted the other LPs as part of one album so that left the Dead owing one more record to Warners to fulfill their contract. After the Dead had told Warners they weren't renewing, Warners wasn't going to do the group any favors (see the Appendix below for some coherent speculation about the Dead's obligations to Warners, which likely included the Garcia and Ace albums).

The remnants of the band Blues Project released an album's worth of blues jams on Verve in 1968, so that most of the members would be free to record as Sea Train on Capitol in 1969. Verve released it anyway, with the ironic title of Planned Obsolescence. I like both Blues Project and Seatrain, yet this was still a waste of tape.

The Early 70s Rock And Roll Record Business
The Grateful Dead have a reputation for having been true mavericks of the music business, blazing a trail for others to follow decades later. In many ways this reputation is justified. However, in many other ways, the Dead fell prey to much of the false logic of the record business of the time, and much to their own detriment. The strange song choices of Bear's Choice betray the Grateful Dead's acceptance of certain 1970s assumptions about the record business and the rock audience, assumptions that were proven fundamentally incorrect less than 20 years later. While the Dead had their own peculiar twist on these assumptions, the assumptions were still wrong.

Consider the Dead's position in early 1973. After being a sort of infamous cult band in the '60s, that had never sold many records, the group had climbed into the middle tier of touring rock bands. They had released four successful albums in a row (Workingman's, American Beauty, Skull And Roses, Europe '72), all of which had garnered good FM airplay, and their concert receipts had continued to increase. Rather than just being popular in a few strongholds like Northern California and New York Metro, the band could play profitable shows in Wembley or Wichita. If a band was ever going to go it alone, the Grateful Dead had picked a great time--on a roll with their releases, and playing great live shows in a booming rock concert industry.

Yet in order to go it alone, the Dead still owed an album release to Warner Brothers. Obviously they weren't going into the studio, and obviously they weren't going to give Warners any new, original material if they could help it. The effort and hopeful rewards of writing and recording new material would accrue to Grateful Dead Records. So it wasn't surprising to read in Rolling Stone (or possibly Joel Selvin's column in the SF Chronicle) that the Dead would fulfill their obligation with an LP of older live material. At the time, I was still 14 years old, and very few Dead fans would have been twice my age. Tapes and bootlegs were largely unknown in the suburbs, so a live album from the past was enticing indeed, since I had no other means of getting that music.

Successful groups changing record labels wasn't unheard of in the early 1970s. The Rolling Stones had moved from Decca Records (London Records in the US) to Atlantic in early 1970. Decca had punished them by releasing a terrible album of outtakes called Stone Age in 1971, which no one remembers. This was a typical record company maneuver. The reasoning was that rock fans were kids, fickle and with limited resources. If they bought the "next" album by a group and it was crummy, the kids would figure "this band's no longer hip" and move on, because they didn't have money to waste. Another variation of this was for a record company to release some sort of "Best Of" album when a group left the label (MGM released MotherMania when Zappa went to Warners in '68), with the idea that it would cut into sales of any newly released album by the artist.

On the other side, rock bands often had an equally hostile attitude towards their record company. When a group left a label, there was often a lot of hostility and frustration, usually over money. On one hand, record contracts were structured to overwhelmingly favor the label. New artists usually had no leverage, and particularly in the 60s, no one knew how much money was really going to be made. So artists with a quick hit often felt taken advantage of, with some justification. Of course, the same artists had no idea how much of their own money they were wasting on new gear and first class airline tickets, fronted by the label out of future royalties.

Thus when a band needed to turn in a final album to escape a record contract, they often had no desire to let their former employer have a good record. In one particularly emblematic case, there had been a groundbreaking group from 1965-67 called The Blues Project, who had been very hip and popular in the early days of the Fillmore, and had released two memorable albums on MGM-Verve. Although they were a Greenwich Village band, some members ended up reforming the group in Marin County in 1968. Rapidly they evolved into the interesting group Seatrain, and were signed by A&M. However, in order to escape their obligation to Verve and sign as Seatrain, they had to produce one more Blues Project album. They released an album of formless jams called Planned Obsolescence, a meaningless exercise. Verve released it anyway.

The Grateful Dead had released five successful albums in a row on Warners, going back to Live/Dead, and seven if you count Garcia and Ace. Yet they had been persuaded by Ron Rakow, with some justification, that Warners was taking too big a share of their receipts from those albums. Now, Warners had distribution and radio promotion with a lot of overhead, but according to Rakow at least, the Dead were getting only 31 cents from every album sale (albums sold for around 3 or 4 dollars at the time). Most Grateful Dead fans were like me--suburban or college kids, unconnected to any underground network, getting all their music from new lps. Yet the Dead had no plans to give Warners an album that would keep up the string of exciting albums they had released in the preceding four years. 

The image from the 1967 Pigpen t-shirt, promoted by Warners

Owsley And Pigpen
I do not think the Grateful Dead actively planned to put out a strange album for their final Warners release. However, they did the next closest thing: they assigned the project to Owsley. The Dead had made the decision by the end of 1972 to go independent, and Warners must have made it clear that another album was required to escape the contract. I'm sure there would have been no other concessions on Warners part, either, like a good advance, so the band would have wanted to do it cheaply.

Owsley "Bear" Stanley had been in Federal Prison from July 1970 until about July 1972 on charges of illicit LSD distribution. The Dead's touring operation was on a solid financial footing by the time Owsley returned, and their sound system was handled by Alembic Engineering, a company that Owsley had helped found. However, for all his legendary status, Owsley didn't have a financial stake in Alembic itself, and he didn't really have an official job with the crew either. Owsley wanted to be in charge, of course, but it wasn't the sixties and he didn't have a role. Conversely, that would have meant Owsley could be spared to work on the record. Thus the album was indeed "Bear's Choice," and I think there was only general approval from the band, with no direct input, so it really was Owsley's album.

Pipgen had died in March 1973. He had not performed with the band since June of 1972, but until the end of the year there may have been some residual hope that Pig could have gotten healthy and at least continued on as an occasional guest star. It was not to be, and Pigpen died while the Dead were on tour in the East. So it seemed appropriate that Bear's Choice became a tribute to their fallen comrade. Owsley had been their since the beginning, so he was an appropriate steward, even if it was strange to have the Acid King construct a tribute to the only family member who didn't like his product.

Owsley liked the blues and he liked folk music. Thus he took the tapes from the Fillmore East shows from February 13 and 14, 1970, and tried to give listeners a taste of what they missed with from those days, with a big focus on Pigpen. However, to a normal suburban listener like me, the album was completely devoid of context. There were four acoustic songs, one by Pigpen, a mournful "Black Peter" for the only original, an 18-minute "Smokestack Lightning," and a rocking but clunky version of Otis Redding's "Hard To Handle." Regular Dead material from those great concerts was entirely absent.

The acoustic material was fascinating, but mysterious, since there was only the faintest knowledge of Garcia's old-timey folk roots. And Weir singing an Everly Brothers song--had that been typical? The answer was "no," but how would I have known that? The slow, grinding "Smokestack" made sense in terms of a three hour show, but it made up most of side two and was kind of a drag to a teenager. Two years later I would get the Hollywood Palladium bootleg (August 6, 1971), and I could hear how "Hard To Handle" should really sound, but back in 1970 the Dead hadn't really figured out the arrangement yet.

Thus it appears that Owsley, given a free hand, and always his own man in any case, made his own tribute to Pigpen. With the knowledge of the Dead's music that we have today, it sort of makes sense: it featured some of the left-out corners of the Grateful Dead's music up until that time. Now we know that old-timey acoustic music, slow blues and psychedelic R&B covers were part of the Dead's broad pallette, but to my 15-year-old self it just seemed strange. I was enormously disappointed when Bear's Choice came out. So was everyone else, I think, because almost no one ever mentioned it again.

Dick's Picks Vol. 4, recorded Feb 13-14, 1970, released 1996

"The History Of The Grateful Dead, Vol 1"
The most tantalizing aspect of Bear's Choice was the actual title: "The History Of The Grateful Dead, Vol 1." It suggested that the album would be the first of many. In a way, it was, although the next installment was eighteen years later, with 1991's One From The Vault. Yet Bear's Choice shows us that the Dead had the idea to use their vault as a way to disseminate their music and provide some income far into the future, as long ago as the early 1970s. Granted, at the time, the Dead were competing with the presence of two almost-bootleg albums, Vintage Dead and Historic Dead, in MGM-Sunflower, both recorded in 1966, but Vintage in particular was a far catchier album than Bear's Choice.

I got excellent quality cassette recordings of the February 13-14, 1970 shows at the end of 1980. The music stunned me, of course, as I couldn't believe there was that much uninterrupted goodness out there to listen to. But it only made Bear's Choice more peculiar. With all that great music to choose from, why did Owsley pick the strange tracks that he did? If the Dead had ended their Warner Brothers run in '73 with an lp that featured Fillmore East performances of, say, "Dancing In The Streets" and "Alligator" (both from Feb 14 '70), it would have been another great seller. "Dancing" would have been all over FM radio, and the Dead's audience would be even bigger. But the Dead fell into the trap of sticking it to the record company, and turned in a purposely strange album that was bound to confuse all but a then-tiny number of old heads. 

The Golden Road Boxed Set, released 2003

Final Coda
Bear's Choice was rightly forgotten, soon after it was released, and it has remained an orphan ever since. The one real effect of the album was limiting the scope of Dick's Pick's Vol 4. Volume 4, released in 1996, featured the relatively widely circulated Feb 13-14 '70 show at its finest. Yet the Bear's Choice tracks needed to be excluded, for contractual reasons. Now, granted, DP4 was already a three-cd set and anyone could make their own custom mix tape of the complete show, but the acoustic songs might have made a good addition and they had to be left off.

When Bear's Choice was released as part of the 12-cd Golden Road boxed set, a few additional tracks were included.

Bonus tracks on 2003 expanded CD release, all live recordings from Feb 1970;

• Good Lovin' - February 13, 1970 at Fillmore East, New York, NY
• Big Boss Man - February 5, 1970 at Fillmore West, San Francisco, CA
• Smokestack Lightnin' - February 8, 1970 at Fillmore West, San Francisco, CA
• Sitting On Top Of The World - February 8, 1970 at Fillmore West, San Francisco, CA

While additional live material from the Dead is always welcome, these seem to be a particularly random assortment of selections. "Sitting On Top Of The World" from 1970 was a rarity, but was another "Smokestack" called for? No matter. Bear's Choice was a contractual obligation, and it was designed to be a quirky artifact that would spite the band's former record company. The final, strange bonus cuts were an appropriately head-scratching appendix to a strange release.

Appendix: Grateful Dead/Warner Brothers Record Contracts
The Grateful Dead signed a three-album deal with Joe Smith of Warner Brothers in December 1966. If it was a typical contract of that era, Warners would have had an option for an additional album or two under the same terms.
The Grateful Dead (March 1967)
Anthem Of The Sun (July 1968)
Aoxomoxoa (June 1969)
Live/Dead (November 1969) While the Dead were touring in mid-69, Lenny Hart negotiated an extension with Warners. I don't know which contract Live/Dead was assigned to, but that was probably part of the negotiation. My assumption is that Live/Dead was considered a record company option on the original deal.

The Workingman's Dead (June 1970) I'm assuming that Workingman's was the first album of a five-album deal with an option for two more.
American Beauty (December 1970)
Grateful Dead [Skull & Roses] (September 1971) This double album was presumably considered one album, a conventional arrangement that would have been negotiated between Warners and the Dead.
Garcia (January 1972) It was conventional practice in the 70s for the "main" players in any popular band to be offered a solo album, though a "Key Man" clause. From Warners' point of view, they didn't care whether Jerry Garcia or the Grateful Dead were the ones with a hit. Now, Garcia could not have recorded a solo album with anyone other than Warners, but he might have negotiated a separate deal. If he did, then it would follow that Live/Dead was part of the second deal, not the original one.
Ace (March 1972) I know that Ace was recorded as part of the Warners deal, and was considered a Grateful Dead album for contractual purposes. Warners probably figured that they had a good chance of making a genuine rock star out of Weir.
Europe '72 (November 1972) The Dead told Warners at the end of '72 that they had no intention of renewing their contract, and told Clive Davis and Columbia they weren't signing with them either, but rather going independent. Double live albums were pretty common, but Europe '72 was a triple album, and the band's last release had been a live album as well. One way or another, the Dead had delivered six albums on the Warners contract, so they still owed a final album.
The History Of The Grateful Dead, Vol.1 Bear's Choice (July 1973) Although the Dead had left Warners by mid-73, they could not have released an album on their own label without having fulfilled their Warners contract.

The Dead put out two albums independently (Wake Of The Flood and Mars Hotel), as well as some solo material on Round. They then signed a distribution deal with United Artists, where they owed four Dead albums and Garcia and Weir solo albums. These obligations were only partially fulfilled, with two Dead albums, one a double (Blues For Allah and Steal Your Face), Reflections and Kingfish (which would have counted as the Weir album).

I do not know the structure of the Dead's 1976 contract with Arista. However, by that time the group was established and both the Dead and Arista knew what they were getting into. The royalties and other factors with releasing the inevitable double live albums were probably written into the contract from the beginning. The deal that was not fulfilled until In The Dark was completed in 1987, which was the sixth Grateful Dead album on Arista. Possibly the two Garcia solo albums and Heaven Help The Fool were part of the obligation as well, or maybe they were contracted separately. After that time, the Dead had an agreement with Arista, but it was basically an album-to-album deal, and Garcia himself was free to record for anybody.

Update 
Appendix 2: The Dead on Bear's Choice
Fellow scholar LightIntoAshes comes up with some contemporary quotes from the band, from Cameron Crowe articles

Cameron Crowe talked to Garcia & others for a couple of illuminating articles in 1973-74: "Rather than choose the usual 'greatest hits' packaging, for their final [Warners] album commitment, The Dead dispatched production manager Owsley 'The Bear' Stanley to rummage through his collection of live tapes to find a unique performance LP with which to bow out... 'It’s a side of the group that never went on record,' says Jerry in retrospect... 'It shows a Dead you’ll never see or hear again,' Rock [Scully] picks up the story. 'The album is sixty percent Pigpen and the other forty percent is acoustic material. Needless to say, Pigpen is no longer with us and The Dead don’t do acoustic material onstage anymore. The record is very, very interesting if you know the history behind it.'" {from Circus Magazine, October 1973 issue) 

But a later article revealed that the Dead themselves were "ambivalent at best" about the album: "Weir is upset about the inclusion of a flat 'Wake Up Little Susie' duet with Jerry. Garcia could care less about the whole thing. When handed his first copy of the album, he mumbled something about it having a less-than-stellar cover and didn’t even bother taking it home. 'We had to give that record to Warner Brothers,' says Jerry... 'We weren’t contracted for it originally, but we had [to] give it to them in order to make Europe ’72 a triple-LP. We could have been cut loose if we gave them two single records, rather than one triple album. We ended up giving them four discs instead of just two just to be able to go to Europe...'As far as I’m concerned, it’s something we owe them. I’m not interested in making Warner Brothers any richer. In a way, I’m glad it’s a low-profile, non-success record. It just means there won’t be any more energy going to WB via us. The music is what it is, us in early 1970... The stuff we were doing at the time never got onto any of our records before now. I might not like it, but I played it. If they were no good, it’s too late to take those notes back.{from Creem Magazine, January 1974 issue}