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Findings
Protected Recordings
The first goal of this study was to determine the percentage
of historic recordings of interest to scholars and collectors
that are currently protected under U.S. law. The average proportion
of this sample found to be protected was 84 percent.2 A
summary of protected recordings, presented by time period,
appears in table 1.
Table 1. Summary: Protected recordings by time period
The proportion protected varies somewhat by period, although
not as much as might be expected. Even for the earliest period,
1890–1894, 39 percent of sampled recordings are still protected
today (all of them cylinders made by the Columbia Phonograph
Company). In the late 1890s, the proportion rises to 62 percent,
and in nearly every subsequent five-year period it exceeds
80 percent. The percentage protected peaks during 1900–1915,
an early period of extreme concentration in the record industry,
declines a bit during the late 1910s and early 1920s, when
independent labels flourished, then rises to more than 90 percent
after 1935, as major labels dominate the marketplace. In later
years, smaller labels were increasingly bought by larger companies,
whose successors retain rights to their recordings today.
The percentage classified as nonprotected, and therefore freely
available for duplication and dissemination (16 percent), could
be reduced by future claims of ownership. Already, one of the
few notable labels believed to be "free" at the time this study
was conducted has been claimed. Gennett, the jazz and blues
label of the 1920s, is claimed by Concord through an ownership
chain tracing back through Fantasy and Riverside.
There is some variation in percentage of recordings protected
by genre of music (table 2). Classical and country recordings
are the most heavily protected overall, each exceeding 90 percent.
Jazz and ragtime, blues and gospel, and "other" (mostly show
music) are in the 86 percent to 90 percent protected range.
On the low end are popular (76 percent) and ethnic (81 percent)
recordings.
Table 2. Summary: Protected recordings by genre
It is difficult to generalize about the trends over time within
genre, because breaking down the sample into such small segments
results in unstable data (there are usually only 15 to 20 recordings
per time period per genre). However, the data indicate that
the majority of historic U.S. recordings are still under a
current owner's control, and that this ownership extends over
all genres of music and all time periods since the 1890s (table
3).
Table 3. Summary: Protected status by genre and time period
Reissues
Drawing next on the sample that included only protected recordings,
we looked at the number of CD reissues of protected historic
recordings by rights owners, their licensees, and others (see
table 4). Here we found distinct differences by period. On
average, rights owners have made available 14 percent of the
historic recordings that they control from the various eras.3 However,
the percentage varies greatly by age. For the two post-1955
periods, the rock-and-roll era, they have reissued 33 percent
to 34 percent. This number declines sharply in earlier periods.
The 1940s and early 1950s average 25 percent reissued, and
the late 1930s (the beginning of the big band swing era) average
drops to 15 percent. In most periods before that, rights holders
have reissued 10 percent or less of their holdings, and in
some periods virtually none. The 1 percent reissued for the
early 1890s, it should be noted, is based on a single reissued
recording, to our knowledge the only recording of that era
reissued by a rights holder, which happened to fall into our
limited sample.
Table 4. Summary: Reissues of protected recordings
Unsurprisingly, rights holders tend to reissue recordings
that were made within the life span of their current mass customers—essentially
the nostalgia market. The rights holders virtually ignore earlier
periods, no matter how historically important recordings from
those periods may be. It is difficult for third parties to
reissue such material legally.
How much demand is there for historic recordings? The number
of unauthorized reissues by other entities, such as foreign
labels (which are not subject to U.S. copyright laws) and small
domestic operations operating under the legal radar, may give
some evidence of the potential demand. An additional 22 percent
of historical recordings have been reissued by these other
entities, which is substantially more than are made available
by the rights holders themselves. This figure reflects recordings
reissued exclusively by others and not by
the rights holders (not recordings issued by both). The percentage
of exclusive reissues by third parties does not differ as significantly
by time period as does that of reissues by the rights holders.
Non–rights holders have reissued 20 percent to 40 percent
of these recordings for most periods from 1900 to 1950. The
percentage drops off after 1950 as rights-holder reissues become
more frequent.
As a result of these differing patterns, more historic recordings
are made available by non–rights holders than by rights holders
for every period up to 1945. While historically important recordings
may not constitute a large-enough market for rights holders
to invest in, they are clearly of enough cultural interest
to persuade others to reissue some of what the rights holders
themselves decline to make available, despite the legal obstacles
to doing so. There is a measurable public interest in these
recordings, and individuals and organizations are willing to
serve it.
An analysis of reissues of historic recordings by genre (see
table 5) reveals some interesting disparities. Recordings in
the "other" category (spoken word and show music) are most
likely to have been reissued by rights holders, at an average
28 percent. Country music is the second-highest field of rights
holder interest, with 20 percent reissued. Ethnic recordings
appear to have been very poorly served, with only 1 percent
reissued. Surprisingly, jazz and ragtime music, blues and gospel,
and popular music are all around only 10 percent reissued.
Table 5. Summary: Reissues of protected recordings by
genre
In virtually every category, parties without legal rights—foreign
labels and domestic non–rights holders—have made more historic
U.S. recordings available than have rights holders. Blues and
gospel music has been particularly well served by third-party
reissuers, although a significant demand for reissues seems
to exist in every genre, with the possible exception of ethnic.
Tables 6 through 9 show reissues of protected recordings by
time period within genre. These data should be regarded as
very approximate and subject to fluctuation, owing to the small
sample sizes when the sample is broken down this finely (again,
there were only about 15 to 20 recordings for each genre within
each five-year time period).
The general pattern of rights-holder reissues is the same
within genre as it is overall. Recent periods are heavily mined
for reissues; earlier periods are largely neglected. In fact,
we found no rights-holder reissues of jazz or ragtime in this
sample for periods before 1915, and only one popular recording
before 1930. This does not mean that rights holders have reissued
no such recordings; it simply indicates that such reissues
are such a tiny percentage of those that interest scholars
and collectors that they did not show up in our sample.
Others have taken up the slack in earlier periods, especially
with reissues in the blues, classical, jazz, and other (show
music, spoken-word) fields.
Table 6. Reissues of protected jazz and blues recordings
Table 7. Reissues of protected country and ethnic recordings
Table 8. Reissues of protected popular and classical recordings
Table 9. Reissues of protected other (show music, spoken
word) recordings
FOOTNOTES
2 This is the average percentage
for the 15 five-year periods between 1890 and 1964. It is not
weighted by the number of recordings issued in each period.
The percentage protected does not vary much by period, so skewing
the percentage toward more-recent periods, in which more records
were issued, should not result in a significantly different
number.
3 As with percentage protected,
this is the average percentage reissued for the 15 periods
examined. Since more recordings were made in later years, and
the rights-holder reissue rate is also higher for later years,
the gross reissue percentage for all recordings listed
in the consulted sources would presumably be higher—at least
for rights holders. The central purpose of this study was to
determine reissue percentage by time period, however, not to
favor more-recent periods, so the latter percentage is less
relevant.
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