Constitutional Obstacles? Reconsidering Copyright Protection for Pre-1972 Sound Recordings

53 Pages Posted: 6 Sep 2012 Last revised: 16 Jun 2015

See all articles by Eva E. Subotnik

Eva E. Subotnik

St. John's University School of Law

June M. Besek

Columbia Law School

Date Written: 2014


Amidst the waves of cutting-edge technological innovation affecting access to music, the eyes and ears of the music industry, library associations, policy makers and others are focused on a legislative decision made some four decades ago. Specifically, these parties are staking out their positions on the possibility of extending federal copyright protection to pre-1972 sound recordings. Those sound recordings are currently protected by a patchwork of state laws, which will not be preempted by federal copyright until 2067, when all pre-1972 sound recordings will enter the public domain.

The U.S. Copyright Office recently issued a report recommending that federal law be amended to bring pre-1972 sound recordings under federal copyright protection in the near future. The Office’s proposal would result in a shorter term of protection for some recordings, and effect other changes in the rights and responsibilities of right holders and users of pre-1972 sound recordings. This article examines the constitutional implications of such a change. In particular, we consider whether, in the face of a challenge that might be brought by affected stakeholders, such a legislative amendment could violate due process or constitute a taking pursuant to the Fifth Amendment of the Constitution.

Keywords: Copyright, Sound Recordings, Pre-1972 Sound Recordings, Music Industry, Copyright Office, Constitution, Fifth Amendment, Takings, Due Process, Preemption

Suggested Citation

Subotnik, Eva E. and Besek, June M., Constitutional Obstacles? Reconsidering Copyright Protection for Pre-1972 Sound Recordings (2014). 37 COLUM. J.L. & ARTS 327 (2014) , St. John's Legal Studies Research Paper No. 15-0014, Available at SSRN: or

Eva E. Subotnik (Contact Author)

St. John's University School of Law ( email )

8000 Utopia Parkway
Jamaica, NY 11439
United States
718-990-3296 (Phone)

June M. Besek

Columbia Law School ( email )

435 West 116th St
New York, NY 10025
United States

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