From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

You can't get many of this country's great records because the vast majority of America's recorded legacy is out of print. That's the finding of a report by the Library of Congress. It's part of a series of studies commissioned by the library on access to historical recordings. The report shows that consumers can legally purchase less than 30 percent of US sound recordings made before 1965. Reporter Joel Rose of WHYY explains.

JOEL ROSE reporting:

Before trumpeter Louis Armstrong led his own band in the 1920s, he played on records by other musicians, including blues singer Maggie Jones.

(Soundbite of song)

Ms. MAGGIE JONES (Singer): (Singing) Hear the thunder rumbling, see the lightening flash.

Mr. SAM VALOSKI(ph) (Archivist, University of California Santa Barbara): For the most part, those are not available in the United States.

ROSE: Sam Valoski is an archivist at the University of California Santa Barbara and the former head of the sound division at the Library of Congress.

Mr. VALOSKI: You'll find one or two on a reissue on a compilation but there's not package of early Armstrong.

ROSE: At least not on an American label. More on that later. Archivists and collectors have long lamented the lack of access to older recordings so the Library of Congress commissioned a team, including Valoski, to find out just how many are out of print. The report released in August suggests that over 70 percent of American music recorded before 1965 is not legally available in the United States.

Mr. VALOSKI: The recording industry is a business and their business is to sell records and if the esoteric material loses its favor with the public, they have no obligation to keep it in print in perpetuity. So the recordings go out of print and they stay out of print.

ROSE: There are some companies that specialize in older music. Glen Schwartz(ph) is vice president of Rhino Entertainment, the division of Warner Music Group that handles reissues.

Mr. GLEN SCHWARTZ (President, Rhino Entertainment): We would love to be the ones who reissue a lot of those titles, but with the amount of product we have coming out and the amount of catalog we own, that work's just not possible. We don't have the people or the time to do every reissue we'd like to.

ROSE: Let's say Schwartz wanted to release a compilation of early Louis Armstrong. He'd have to find contact information for every small or large label that released discs by the singers and bandleaders Armstrong accompanied. Rhino would have to find out who owns the rights to the recordings and how much it would have to pay to reissue them. Even for older releases within the Warner family it's not a sure thing says Schwartz.

Mr. SCHWARTZ: We have to make sure we have the rights, that we still own the recording. There could be a reversion clause in an old agreement that Warner or Electra or whoever it is had the right for 25 years and then it goes back to the artist. So we have to make sure we still have the rights. We have to check the royalty to make sure we're getting enough money to cover the artist's royalty as well as making a margin of our own.

ROSE: Recently Rhino reissued a four CD set of girl groups from the 1950s and '60s in a make-believe hatbox. The Library of Congress report says releases like this are aimed at what it calls the nostalgia market. But Sam Valoski says most record labels are simply not interested when it comes to titles released before baby boomers were born.

(Soundbite of song)

Mr. VALOSKI: They'll say to you, `Yes, we'd love to license this to you, but you have to guarantee 15,000 in record sales or maybe even more, 25,000. And as lovely as this Al Jolson recording from 1913 is, it's unlikely it's going to sell 15,000 copies.

(Soundbite of song)

Mr. AL JOLSON (Singer): (Singing) I've been worried all day long. Don't know if I'm right or wrong.

ROSE: But it's not just economics that keeps older recordings out of print. It's also a matter of a copyright. Sound recordings made after 1972 are protected by federal law. Recordings made before that were covered by state and common law copyright. These laws do not have expiration dates. The Library of Congress found that 84 percent of recordings from before 1965 cannot be reissued without permission from the copyright holder, which is usually the original record label.

Mr. KLAUS HEYMANN (Founder, Naxos Records): I would say 95 percent of what has been recorded is not available, at least from the original copyright owners.

ROSE: Klaus Heymann is the Hong Kong-based founder of Naxos Records. His independent label was taken to court last year over three historical recordings it reissued in the United States.

(Soundbite of instrumental music)

ROSE: In Europe, says Heymann, this 1936 recording of cellist Pablo Casales is in the public domain, because his copyright expires after a finite period of time.

Mr. HEYMANN: In the rest of the world it is 50 years from the end of the year in which the recording was first released. Fifty years after that date a sound recording goes into the public domain.

ROSE: That is not the case in Australia or the United States, and Heymann found himself in New York state court when Naxos was sued by Capitol Records. The two parties announced a settlement earlier this month but archivist Sam Valoski says there are still countless illegal titles on record store shelves in the US.

Mr. VALOSKI: So if you go to your local record store, if you go on the Internet to a record retailer, you see literally thousands, if not tens of thousands, of recordings of jazz and pop and country and classical music that predates 1955 and is getting reissued overseas. They're getting imported but technically they're illegal imports.

ROSE: That's how Valoski was able to find Louis Armstrong's early work on CD. For the most part, Valoski says the major labels turn a blind eye to these imports because sales are slim and labels are far more concerned about unauthorized downloading of contemporary titles.

(Soundbite of "Love Don't Cost a Thing")

Ms. JENNIFER LOPEZ: (Singing) When I took a chance, thought you'd understand. Baby, credit cards aren't romance, so you're tryna to buy what's already yours. What I need from you is not available in stores.

ROSE: But while college students nationwide were sharing the latest song by Jennifer Lopez during the heyday of Napster, some music fans were using the file sharing network and its offspring to help preserve the nation's recorded legacy without permission. Jason Schultz is an attorney for the Electronic Frontier Foundation.

Mr. JASON SCHULTZ (Attorney, Electronic Frontier Foundation): One of the little reported stories about Napster was just how much new material became digital, that people, individual users, not companies, were digitizing old records, old tapes. They're finding ways to get it online because of this exciting new medium and then as it gets shut down that enthusiasm waned.

ROSE: But it's not gone. Some music lovers continue to take matters into their own hands by sharing MP3 downloads of forgotten LPs and 45s across the Internet and on Web sites devoted exclusively to old music.

(Soundbite of instrumental music)

ROSE: One of these so-called sharity Websites is It's founder also calls it Our Lady of Perpetual Obsolesensce Vinyl Rescue Mission and Orphanage. Record collector Max McMillan posts one record a week, including the cover art on his site. McMillan says a lot of the things he shares are obscure self-released recordings so he's not worried about getting sued even though he is breaking the law. But he insists most sharity sites are careful not to post records that have been reissued on CD.

Mr. MAX McMILLAN ( We realize there's a lot of really good performances that essentially go unheard. Unless I happen to stumble across it in a thrift store and then encode it and put it on my Website, more than likely you're not going to hear it at all.

ROSE: For the time being, that could be the fate of most historical recordings unless there's a change in the law or Al Jolson suddenly makes a comeback. For NPR News, I'm Joel Rose.

(Soundbite of song)

Mr. JOLSON: (Singing) Some love from you, that's who, you know what to do, you need to do, yes you do. Give me, gimme, gimme, gimme, gimme what I cry for. You now you've got the bread of kisses that I die for. You know your baby loves you.


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