Compendium II: Copyright Office Practices

 

Chapter 400

 

COPYRIGHTABLE MATTER:

WORKS OF THE PERFORMING ARTS

AND SOUND RECORDINGS

 

Outline of Topics

 

401 Musical works: in general.

402 Music defined.

403 Elements of music.

403.01 Definitions.

404 Musical content.

404.01 No numerical standard.

404.02 Words and short phrases.

404.03 Transposition.

404.04 Works consisting entirely of information that

is common property.

404.05 "Melodiousness" and harmony.

405 Physical embodiment of musical works.

405.01 Physical embodiment: copies.

405.02 Physical embodiment: sound tracks.

405.03 Physical embodiment: phonorecords.

 

406 Limitations on copyrightability.

406.01 Copyright term expired.

406.02 Certain musical arrangements.

406.03 Chord charts.

406.04 Musical works unlawfully employing other works

under copyright protection.

 

407 Use of protected characters, names, and slogans.

408 Musical derivative works.

 

408.01 Musical arrangements.

408.02 Adaptation.

408.03 Setting.

-1 -

[1984]

Chapter 400

COPYRIGHTABLE MATTER:

WORKS OF THE PERFORMING

ARTS AND SOUND RECORDINGS               -2 –

 

408 Musical derivative works. (cont'd)

 

408.04 Variations.

408.05 Editing.

408.06 Additional music.

408.07 Abridgment.

408.08 "As a Whole" criterion.

 

409 Compilations.

 

409.01 Collective works.

409.02 Method books.

 

[Numbers 410 through 416 are reserved.]

 

417 Words accompanying music.

 

418 Claim in literary content.

 

419 Literary content.

 

420 Nondramatic literary works prepared for performance.

 

420.01 Song lyrics.

420.02 Comedy sketches.

420.03 Embodiment of nondramatic literary works prepared

for oral delivery.

 

[Numbers 421 through 429 are reserved.]

 

430 Dramatic works.

 

431 Dramatic works defined.

 

432 Characteristic features of dramatic works.

 

432.01 Plot.

432.02 Characters.

432.03 Dialog.

432.04 Directions for action.

432.05 Drama without words.

 

[1984]

Chapter 400

COPYRIGHTABLE MATTER:

WORKS OF THE PERFORMING

ARTS AND SOUND RECORDINGS              -3 -

 

433 Amount of dramatic content necessary.

434 Works not registrable as dramas.

435 Embodiment of dramatic works.

436 Dramatic derivative works.

437 Compilations.

438 Music accompanying dramas.

439 Components of dramatic musical works.

[Numbers 440 through 449 are reserved.]

 

450 Choreographic works.

 

450.01 Definition.

450.02 Presentation before an audience.

450.03 Characteristics of choreographic works.

450.04 Abstract choreography.

450.05 Requirement for registration.

450.06 Choreographic content: social dance steps and

simple routines.

450.07 Embodiment of choreography.

450.08 Derivative choreographic works.

450.09 Status of improvisation.

 

[Numbers 451 through 459 are reserved.]

 

460 Pantomimes.

 

460.01 Definition.

 

461 Pantomime content.

 

462 Distinction between pantomime and choreography.

 

[1984]

Chapter 400

COPYRIGHTABLE MATTER:

WORKS OF THE PERFORMING

ARTS AND SOUND RECORDINGS               -4 –

 

463 Embodiment of pantomimes.

 

[Numbers 464 through 469 are reserved.]

 

470 Audiovisual works.

 

471 A motion picture is a kind of audiovisual work.

 

472 Series of related images.

 

473 Sounds accompanying an audiovisual work.

 

474 Forms of embodiment.

 

475 Authorship in an audiovisual work.

 

475.01 Visually perceptible authorship.

475.02 Aurally perceptible authorship.

 

476 Derivative audiovisual works.

 

477 Multimedia works.

 

477.01 Classification of multimedia works.

 

[Numbers 478 and 479 are reserved.]

 

480 Motion pictures.

 

480.01 Requirement of fixation.

480.02 Forms of embodiment.

480.03 Copyrightable subject matter.

480.04 Motion pictures as derivative works and compi-

lations.

 

[Numbers 481 through 484 are reserved.]

 

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Chapter 400

COPYRIGHTABLE MATTER:

.WORKS OF THE PERFORMING

ARTS AND SOUND RECORDINGS               -5 –

 

485 Motion pictures: special problems.

 

485.01 Fixation as it relates to publication.

485.02 Works made for hire.

 

486 Deposit requirements for motion pictures.

 

486.01 Description required.

486.02 Unpublished motion pictures.

486.03 Published motion pictures.

486.04 Definition of "best edition."

486.05 Definition of "complete."

486.06 Motion picture Agreement.

486.07 Motion picture Agreement: Standard Modification.

486.08 Motion picture Agreement: Supplemental Property

Agreement

 

487 Separately registrable work of authorship fixed

in film, videotape, or the like.

 

[Numbers 488 and 489 are reserved.]

 

490 Sound recordings.

 

491 Sound recording distinct from underlying work.

 

492 Sound recording distinct from sounds accompanying

audiovisual work.

 

492.01 Classification.

492.02 Extent of claim.

 

493 Forms of embodiment.

 

493.01 Statutory definition of phonorecords.

493.02 Types of phonorecords.

493.03 Distinction between phonorecords and sound

recordings.

493.04 Distinction between phonorecords and copies.

 

[1984]

 

Chapter 400

COPYRIGHTABLE MATTER:

WORKS OF THE PERFORMING

ARTS AND SOUND RECORDINGS               - 6 -

 

494 Date of fixation as it affects eligibility.

 

494.01 Definition of fixation.

494.02 State protection for sound recordings

fixed before February 15, 1972.

 

495 Copyrightable subject matter.

 

495.01 Types of copyrightable authorship.

495.02 Authorship on the part of the performer.

495.03 Authorship on the part of the producer.

 

496 Sound recordings as derivative works.

 

496.01 Derivative sound recordings.

496.02 Types of derivative sound recordings.

496.03 Registrability of derivative authorship.

 

497 Compilations.

 

497.01 Registrable compilations.

497.02 Non-registrable compilations.

 

498 Multimedia works.

 

498.01 Audiovisual multimedia works.

498.02 Nonaudiovisual multimedia works.

 

[Numbers 498.03 through 498.99 are reserved.]

 

499 Glossary of terms.

 

[1984]

 

Chapter 400

COPYRIGHTABLE MATTER:

WORKS OF THE PERFORMING ARTS

AND SOUND RECORDINGS

 

401 Musical works: in general. Musical works,

including any accompanying words, are regis-

trable without regard to aesthetic standards.

The range of registrable works consists of music

produced by traditional and electronic means,

including works whose production involves the

use of a computer. An electronic composition

utilizing tones produced by synthesizer or

altered by omitting characteristics of its

timbre, such as omitting decay or attack, may

be registered. A discussion of the elements of

musical works, criteria for copyrightability,

forms of embodiment, and derivative musical

works follows.

 

402 Music defined. Music is a succession of pitches

or rhythms, or both, usually in some definite

pattern.

 

403 Elements of music. The elements of music are

melody, rhythm, and harmony. They are defined

below.

 

403.01 Definitions. Melody: a succession of single

tones: rhythm: a grouping of pulses accord-

ing to emphasis and length: harmony: the

combination, simultaneously, or nearly so,

of different pitches. These tones are spaced

at certain prescribed distances from one

another in related progressions. Although a

musical work will be registered if any of

these three elements can be considered to

constitute a work of authorship, melody, the

predominant element by which a work is per-

ceived, usually determines whether a work

is copyrightable. Even melody, however, may

be too minimal for copyright protection, as

it is in "Johnny One-Note," (excluding the

"break"), while other elements, such as the

rhythm and harmony in this composition,

supply all or substantially all of the

copyrightable content.

 

[1984]

400-2

404 Musical content. The criteria for copyright-

ability of music are: I) The work must contain

at least a minimum amount of creative musical

expression1 2) The work must not have been

copied from another source. See Chapter 200:

COPYRIGHTABLE MATTER - IN GENERAL.

 

404.01 No numerical standard. There is no pre-

determined number of notes or measures that

will automatically qualify a work for copy-

right registration.

 

404.02 Words and short phrases. Words and short

phrases, such as names, titles, and slogans,

are not subject to copyright. 37 C.F.R.

202.1(a). Just as words and short phrases

cannot be registered, phrases consisting of

only a few musical notes, such as clock

chimes, i.e., "mi do re sol, sol re mi do"

cannot be registered.

 

404.03 Transposition. Transposition is the act of

transferring music from one key to another,

note for note. Compare "My Bonnie” in F:

 

Since the relationship of all the notes to

one another remains the same, and all that

is required is the mere act of measuring

intervals, transposition is a mechanical act

and, as such, is not subject to copyright

protection. There is no creative musical

expression in a transposition. This turn-

about four-note pattern repeated at a

certain melodic interval from the preceding

statement is essentially a transposition,

and therefore is not registrable.

 

[1984]

400-3

 

404 Musical content. (cont'd)

 

404.04 Works consisting entirely of information

that is common property. Works consisting

entirely of information that is common

property are not subject to copyright. 37

C.F.R. 202.01(d). Diatonic and chromatic

scales, as such are considered works con-

sisting entirely of information that is

common property. Thus, works of this kind

are excluded from copyright protection.

 

404.05 "Melodiousness" and harmony. "Melodious-

ness" and conventional (triadic) harmony are

not criteria for registration. A musical

composition based on a tone row, or a

quarter-tone scale, for example, may be

accepted for registration. Claims to copy-

right in composition with harmony based on

intervals of seconds, fourths, or any other

combination of tones may also be registered.

 

405 Physical embodiment of musical works. Music may

be embodied in either copies or phonorecords. No

basic registration is possible, however, without

some kind of physical representation of the work

--a copy, or phonorecord, or, where applicable,

identifying material. See Chapter 800: DEPOSIT

FOR REGISTRATION.

 

405.01 Physical embodiment: copies. The term

copies includes every kind of embodiment

of the work acceptable for registration,

except phonorecords and certain identifying

material.

 

405.01(a) Copies required before 1978. Until

1978, a copy was the only form in which

a musical work could be accepted for

registration. Various kinds of copies,

however, were acceptable.

 

[1984]

400-4

 

405 Physical embodiment of musical works. (cont'd)

 

405.01 Physical embodiment: copies. (cont'd)

 

405.01(b) Copies: musical notation. Standard I

musical notation, using--the five-line,

four-space staff is the form most fre-

quently employed to embody musical

works. Precision equal to that offered

by conventional notation is not

required, although the deposit should

constitute as precise a representation

of the work as possible. Any graphic

representat1on of p1tch, rhythm, or

both, suffices as long as the notation

is capable of being performed. Examples:

graphically drawn hand signals, fret

notation, staves with more or fewer

lines than the conventional staff, and

"new music," combining graphic art with

music notation.

 

405.01(c) Copies: literary description. A copy

may be in the form of textual instruc-

tions for performance, e.g., a descrip-

tion of notes and rhythms. However, in

order to be registrable as a musical

composition, such instructions must be

specific enough for the work to be per-

formed.

 

405.02  Physical embodiment: sound tracks. Where

music is embodied in a motion picture sound-

track, the motion picture is the copy.

Although the deposit ordinarily required

would be the motion picture, an exception to

the deposit requirements permits the deposit

of identifying material instead of a copy.

See Chapter 800: DEPOSIT FOR REGISTRATION.

 

NOTE: Music published in a sound track before

1978 can be registered apart from the motion

picture as a whole, only if the motion picture

bore a separate copyright notice for the music.

Music published in a sound track after 1977 may

be registered apart from the motion picture,

without a notice of copyright on the motion

picture in the name of the music claimant.

 

[1984]

 

 

400-5

 

405 Physical embodiment of musical works. (cont'd)

 

405.03 Physical embodiment: phonorecords. On

January 1, 1978, phonorecords, including

tapes, disks, sound sheets, soundwheels, and

piano rolls, became acceptable deposits for

registering claims to copyright in music

recorded on them. Moreover, music embodied

only in phonorecords before 1978 is now

acceptable for registration in that form.

If such phonorecords were available for sale

or public distribution on January I, 1978,

after having been sold or publicly distrib-

uted earlier, the musical work would be

considered published and the date of such

publication is January I, 1978. See section

909, Chapter 900: PUBLICATION.

 

406 Limitations on copyrightability. By reason of

certain limitations in the copyright law, some

works are not registrable though they might

otherwise appear to be the subject matter of

copyright.

 

406.01 Copyright term expired. A work whose copy-

right term has expired is not subject to

copyright protection. Once a work has

entered the public domain, its term cannot

be extended or the protection revived. See

section 103, Transitional and Supplementary

Provisions of the current Act.

 

406.02 Certain musical arrangements. Musical

arrangements embodied in a phonorecord and

made pursuant to a compulsory license to

make and distribute phonorecords of non-

dramatic music are not subject to copyright

protection without the express consent of

the copyright owner. See 17 U.S.C. 115(a)

(2).

 

406.03 Chord charts. Chord charts ordinarily

contain a significant number of public

domain standard chords. To be registrable,

works embodying chord charts must qualify as

a compilation or as some other original work

of authorship. See section 408.02 below.

 

[1984]

 

400-6

 

406 Limitations on copyrightability. (cont'd)

 

406.04 Musical works unlawfully employing other

works under copyright protection. Musical

works that unlawfully employ another work

under copyright protection are not them-

selves subject to copyright protection if

they are inseparably intertwined with the

preexisting work. See 17 U.S.C. 103(a) and

H.R. Rep. No.94-1476, 94th Cong., 2d Sess.

57-8 (1976) .For example, an unlawful four-

part reharmonization of "All The Things You

Are" that cannot be separated from the

previous melody and harmony would not be

registrable. However, the Copyright Office

does not generally investigate the copyright

status of preexisting material or whether it

has been used lawfully. Where a work unlaw-

fully employs preexisting copyrighted mate-

rial that is separable from the new mate-

rial, the new work is registrable.

 

407 Use of protected characters, names, and slogans.

Occasionally musical works incorporate names,

titles, or slogans whose utilization is subject

to restrictions under other Federal laws, but

the incorporation of such items does not prevent

copyright registration. Where the Copyright

Office is aware that a use of certain elements

within a work may be in violation of existing

law, it may inform the applicant of the possible

restriction and direct the applicant to the

Government agency that deals with the item in

question. Some examples of restricted names

and characters are: "Olympic," "Olympiad," (36

U.S.C. 380); "Woodsy Owl" (18 U.S.C. 711a); and

"Smokey Bear" (18 U.S.C. 711).

 

408 Musical derivative works. A derivative work is

a work based upon one or more preexisting works,

such as. ..musical arrangements. 17 U.S.C.

101. In the case of derivative works, only

certain kinds of preexisting material need be

excluded from the claim on an application for

 

[1984]

 

400-7

 

408 Musical derivative works. (cont'd)

 

copyright registration, namely, that which con­stitutes a significant amount of previously registered published, or public domain mate­rial.

 

1) Where the work does not incorporate any preexisting copyrightable material, but

is merely based on a preexisting idea, the work is considered a new work, and not a derivative work.

 

Example:

 

A song about crossing a river inspired by the painting, "Washington Crossing the Delaware."

 

2) Where the work incorporates only a negligible amount of previously registered, published, or

public domain material, the work is considered

a new work: thus, the claim to copyright need not exclude the preexisting material.

 

Example:

 

A musical work incorporating only the first three notes of "Also sprach Zarathustra," by Richard Strauss.

 

3) Where a work incorporates preexisting mate­rial that was theretofore unregistered and unpublished, the work is considered a new work, for purposes of most registrations.

 

Examples:

 

a) An author writes song lyrics in 1978 and files them away in his home. In 1981, the author sets the lyrics to new music. Even though the lyrics were preexisting when the music was composed, the lyrics are not considered a preexisting work, for purposes of registration.

 

[1984]

 

 

 

 

400-8

 

408 Musical derivative works. (cont'd)

 

3) (cont’d)

 

Examples: (cont'd)

 

b) A composer receives authority to set to

music unpublished song lyrics that have

never been registered, but is not,

authorized to claim copyright in the

lyrics. Since the lyrics have not been

previously published or registered, they

are not considered a preexisting work

for purposes of registration, but they

should nevertheless be excluded from the

claim.

 

408.01 Musical arrangements. A musical arrangement

is a work that results from the addition of

new harmony to a preexisting work. The

standard of originality for arrangements

takes into consideration the fact that a

melody carries with it a certain amount of

implied harmony.

 

408.01(a) Harmonic chord symbols. Chord symbols

represent the presence of three or

more specific notes. However, the

individual notes in the chords are not

specifically distributed as are chord

members in a written-out harmony or in

harmony recorded on a phonorecord. To

reach the "minimal amount" require-

ments, harmonic chord symbols must go

beyond standard chords in common

sequences.

 

Example:

Chord symbols C (major), a (minor),

d (minor), and G (major) are sub-

mitted with original words. The

harmony is not registrable because

this chord sequence is both too

short and standard. The words, if

substantial enough, may be regis-

tered.

 

[1984]

 

 

 

400-9

 

408 Musical derivative works. (cont'd)

 

408.01 Musical arrangements. (cont'd)

 

408.0l(b)  Instrumentation. Music may also be arranged by distributing or redistrib­uting harmonic elements among different instruments.

 

Examples:

 

1) An orchestration of Debussy's "Reverie," a work originally com­posed for piano.

 

2) A marching band arrangement of Beethoven's String Quartet in G major, Opus 18, No.2.

 

Transpositions are not copyrightable. See section 404.03 above. Therefore, the Copyright Office will not make

multiple registrations for the same work in different keys.

 

Example:

 

"Madame Evanti's Solfege songs" is sub­mitted in a different key each for High, Medium, and Low voice. The applicant may select the version to be registered, but only one registration may be made.

 

Moreover, the notation of a musical work necessary to enable transposing instruments to play in the same key is not copyrightable.

 

Example:

 

The transposition of the standard four-part setting of the hymn "Abide with Me" for E-flat, A-flat, and B-flat saxophones and C clarinet, assigning a different part to each instrument, is not registrable.

 

[1984]

 

400-10

408 Musical derivative works. (cont'd)

 

408.02 Adaptation. An adaptation results from

reworking a preexisting melody, possibly

including rhythmic variation as well. An

example might be a jazz version of the

"Battle Hymn of the Republic." This defi-

nition of adaptation is not as widely known

as the definition of arrangement: thus, the

Copyright Office will accept a claim on

adaptation where the primary change is in

the harmony. Where there is no registrable

harmony, an application stating the claim as

arrangement will not be accepted, but the

Copyright Office will request that the basis

of the claim be changed to adaptation, if

appropriate.

 

408.03 Setting. A setting is a harmonization, or

arrangement of a preexisting melody, or

entirely new music set to preexisting words.

Settings are similar to arrangements, except

that they are more closely associated with

preexisting words and chorale-type harmony.

 

408.04 Variations. Variations are adaptations and

arrangements of one basic theme in various

moods and styles. The basic theme is

usually the preexisting work. Variations

are treated as new works for purposes of

registration, where the treatment results in

substantial divergence from the preexisting

material, or where the new material over-

whelmingly predominates in comparison to the

theme, such as where the theme or motive

consists of only a few notes.

 

Example:

Because of substantial divergence from

the theme, utilization of the Paganini

motive in this phrase of Rachmaninoff's

"Rhapsody on a Theme of Paganini," Opus

43,

 

[1984]

400-11

 

408 Musical derivative works. (cont'd)

 

408.04 Variations. (cont'd)

 

Example: (cont'd)

 

would not have prevented the Rachmaninoff work from being registered as a new work.

 

408.05 Editing. Music editing generally consists of markings for the performance of music, such as additional or altered fingering, accents, dynamics, and the like.

 

408.06 Additional music. Additions of music can be registered, such as the completion of an unfinished work or a reconstruction of missing music.

 

408.07 Abridgment. An abridgment of a musical work may be registrable provided that there is a substantial amount of selectivity, for example, more than merely omitting a section from the beginning or end.

 

408.08 "As a Whole" criterion. A derivative musical work may be registrable in the aggregate, even though the individual changes, examined separately, may not be.

 

Example:

 

A revision consisting of a change of fingering in two measures, added dynamics in four measures, and three measures of additional music could, in the aggregate, constitute a derivative musical work.

 

409 Compilations. A compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordi­nated, or arranged in such a way that the resulting work as a whole constitutes an orig­inal work of authorship. The term "compilation" includes collective works. 17 V.S.C. 101.

 

[1984]

400-12

 

409 Compilations. (cont'd)

 

409.01 Collective works. A collective work is

a work. ..in which a number of contri-

butions, constituting separate and indepen-

dent works in themselves, are assembled into

a collective whole. 17 U.S.C. 101.

 

Example:

 

A folio of selected Rodgers and

Hammerstein songs.

However, a work will be rejected for regis-

tration if the claim is on compilation,

unless it appears that enough basic material

has been compiled.

 

Example:

 

A compilation claim on Sides 1 and 2 of

a 45-r.p.m. phonorecord containing a

musical selection on each side will be

refused. A claim in the music, however,

will be accepted if the music appears to

meet the standards of originality. See

section 404 above.

 

409.02 Method books. Method books that contain

only previously published material, such as

public domain chords, scales, exercises, and

other information that is common property,

may be registered as compilations if the

works contain at least a certain minimum

amount of compilation authorship. In view

of the limited protection available, the

Copyright Office will not suggest a compi-

lation claim on its own initiative unless

the contribution is obviously substantial.

 

[Numbers 410 through 416 are reserved.]

 

[1984]

400-13

 

417  Words accompanying music. Words accompanying music are considered an integral part of the musical work. There is no specific manner in which words shall accompany music. The words may be narrated to background music, sung to

music on a phonorecord, set above the notes to which they are to be sung on a notated copy, or

may be written on a separate sheet with no

instructions as to how they are to be performed. The Copyright Office will question whether words accompany music only where it appears

improbable that the words and music are meant

to be performed or otherwise used together.

 

418  Claim in literary content. The words must be sufficiently substantial in themselves to support a claim on words. If the words are insufficient, the copyright Office will request that the claim on words be deleted from the

application. The words may still be included as

part of the deposit.

 

419  Literary content. In addition to ordinary words

used in the conventional manner, nonsense syl­lables, nonsyntactica1 words, or coined words

may be registered. The verbal expression, how­ever, must have been originated by a human being

and be of a sufficient amount.

 

420  Nondramatic literary works prepared for perfor­mance. Nondramatic literary works prepared for

performance may be registered in Class PA. Non­

dramatic literary works not intended for per­formance should be registered in Class TX. See

Chapter 300: COPYRIGHTABLE MATTER -- NONDRAMATIC

LITERARY WORKS.

 

420.01  Song lyrics. Song lyrics, unaccompanied by

mUS1C, may be registered in published or un­published form in Class PA.

 

420.02  Comedy sketches. Jokes and other comedy

routines may be registered if they contain

at least a certain minimum amount of orig­inal expression in tangible form. Short

quips and slang expressions consisting of no

more than short phrases are not registrable.

 

[1984]

 

400-14

 

420 Nondramatic literary works prepared for perfor-

mance. (cont'd)

 

420.03 Embodiment of nondramatic literary works

prepared for oral delivery. Nondramatic

literary works intended for oral delivery

may be embodied in copies or phonorecords.

Human or mechanical agents, including com-

puters, may be used to fix the words in

tangible form.

 

[Numbers 421 through 429 are reserved.]

 

430 Dramatic works. The term "dramatic works"

includes plays prepared for stage presentation,

as well as those prepared for cinema, radio, and

television. Applications for registration of

claims to copyright in dramatic works should

be submitted on Form PA.

 

431 Dramatic works fined. A dramatic composition

is one that portrays a story by means of dialog

or acting and is intended to be performed. It

gives directions for performance or actually

represents all or a substantial portion of the

action as actually occurring, rather than

merely being narrated or described. Examples

of narration or description alone might be:

the Bible story of Shadrach, Meshach, and

Abednego, or a narration of the "Three Little

Pigs." If the narrator is to devise or

improvise his or her own action, the dramatic

content is not fixed and thus the work is not

a drama.

 

432 Characteristic features of dramatic works. Some

of the features which are characteristic of

dramas are the following:

 

432.01 Plot. A drama contains a thread of consecu-

tively related events, either as a theme or

in segments. A story delivered by narration

alone, however, should be registered as a

nondramatic work.

 

[1984]

 

400-15

 

432 Characteristic features of dramatic works. (cont'd)

 

432.02 Characters. A work may be considered a drama even though it contains only one character. The script of a soliloquy or

monolog that tells a story may be registered as a drama, provided that it includes suffi­ciently explicit stage directions from which it can be performed.

 

Example: ,

 

A poem, such as "Invictus," with direc­tions for acting out the story.

 

432.03 Dialog. Dialog alone will constitute a drama only if characters and a plot are inherent therein.

 

432.04 Directions for action. While directions for action by themselves do not constitute a drama, such instructions (or the actual representation of the action) are essential to drama.

 

432.05 Drama without words. A drama may be represented silently, provided there is visual dramatic action or pantomime, as for example, a new drama in the Noh style. However, a still tableau depicting a story incident does not meet this criterion.

 

 

433 Amount of dramatic content necessary. The work should have enough action to avoid the conclu­sion that the dramatic contribution is too minimal for copyright protection as a dramatic work. While a mere outline or narrative summary of the idea for a drama is not registrable as a dramatic work, every element of the drama need not be set out. A scenario may be registered as a dramatic work if it is adequate to serve as the basis for directing its action, even though the directions are brief and some details are

 

[1984]

400-16

 

433 Amount of dramatic content necessary. (cont'd)

 

left unspecified. Also, a recorded narration

coupled with directions for the dramatic repre-

sentation of some story incidents is registrable

as a drama.

 

Example:

 

The script for a children's radio program

narrating a visit to the zoo, containing

detailed instructions to actors for charac-

terizations of various animal antics.

 

434 Works not registrable as dramas. Simple

directions for using scenery, stage settings,

or ideas for sound effects do not in themselves

constitute dramatic content. Where the version

submitted is not an acting version, the work

will not be registered as a drama. However, a

work that does not meet the criteria for regis-

tration as a dramatic work may contain enough

copyrightable content in another category to be

registrable on some other basis.

 

435 Embodiment of dramatic works. A drama may be

embodied in manuscript, typescript, or printed

copy, on a video-recording, such as a video-

cassette, or another form of copy, or in a

phonorecord. The fixation of a drama may be

made simultaneously with its transmission or

live performance.

 

436 Dramatic derivative works. Copyrightable addi-

tions or other changes to dramatic works may be

made in one or more of several categories. Where

a drama is translated, the work remains dramatic

in nature and can be described as such on the

application. Since the copyrightable addition

is not dramatic, the new claim is on translation

and not on drama. Where a drama is made into a

novel, the addition is not dramatic and thus

neither is the new work. Where a novel is made

into a drama, the copyrightable new material is

dramatic. Where a preexisting drama has been

 

[1984]

400-17

 

436 Dramatic derivative works. (cont'd)

 

substantially revised or new dramatic material

has been added, the result is a dramatic deriva-

tive work.

 

437 Compilations. A collection of dramas can be

registered as a collective work. If the indi-

vidual selections consist of dramatic works, the

collection can be registered in Class PA, even

though the dramas are not then under copyright

protection.

 

438 Music accompanying dramas. To be a dramatico-

mus1cal compos1t1on, a sufficiently substantial

part of the dramatic action or dialog should be

combined with the music.

 

Examples:

 

Singspiel, musical comedy, operetta, and

opera, including music drama.

 

A group of songs with instructions for expres-

sive delivery, however, is not a dramatico-

musical work. Where music is to accompany a

dramatic work, such music must be fixed in the

deposit and must be copyrightable on its own to

support a claim in music~ it need not be inter-

woven with drama, however, as long as it is

intended to form an integral part of the drama.

 

439 Components of dramatico-musical works. The

music and book of a dramatico-musical work are

registrable together as one unit, or they may be

registered separately. Components that are not

copyrightable cannot be registered separately.

 

[Numbers 440 through 449 are reserved.]

 

[1984]

 

400-18

 

450 Choreographic works. Under the current law,

choreography is included as a specified category

of works in which copyright subsists. See 17

U.S.C. 102(a)(4)~ see also section 460 below.

 

450.01 Definition. Choreography is the composition

and arrangement of dance movements and

patterns, and is usually intended to be

accompanied by music. Dance is static and

kinetic successions of bodily movement in

certain rhythmic and spatial relationships.

Choreographic works need not tell a story in

order to be protected by copyright.

 

450.02 Presentation before an audience. Although

some reference works define choreography

as "dancing, especially for the stage,"

presentation before an audience is not

required for registration as a choreo-

graphic work.

 

450.03 Characteristics of choreographic works. Most

choreography includes the following general

characteristics:

 

450.03(a) Compositional arrangement. Choreo-

graphy represents a related series of

dance movements and patterns organized

into a coherent whole. The movements

must be more than mere exercises, such

as "jumping jacks" or walking steps.

 

450.03(b) Movement or execution. Choreography is

primarily executed by the torso, limbs,

or both, in rhythm.

 

450.03(c) Capacity for performance. The specific

movements of dancers are set out in a

form from which the work can be per-

formed. See section 450.06 below.

 

450.04 Abstract choreography. The Copyright Office

will register claims to copyright in all

choreographic works, including abstract

choreographic works, that constitute orig-

inal works of authorship fixed in tangible

form.

 

[1984]

 

400-19

 

450 Choreographic works. (cont'd)

 

450.05 Requirement for registration. To be registrable, the choreographic work must contain at least a certain minimal amount of copyrightable matter in the form of dance steps or other movements in a coherent compositional arrangement. It must also be capable of performance as submitted.

 

450.06 Choreographic content: social dance steps and simple routines. social dance steps and simple routines are not copyrightable under the general standards of copyright­ability. Thus, for example, the basic waltz step, the hustle step, and the second position of classical ballet are not copy­rightable. However, this is not a restric­tion against the incorporation of social dance steps and simple routines, as such, in an otherwise registrable choreographic work. Social dance steps, folk dance steps, and individual ballet steps alike may be utilized as the choreographer's basic material in much the same way that words are the writer's basic material.

 

450.07 Embodiment of choreography. Broad outlines in which the movements of the dancers have not been set out with any certainty are not registrable as choreography. If the basic movements of the dancers have been fixed, however, registration will not be refused simply because there is room for improvisation, or because some improvisa­tion is intended. See section 450.09 below.

 

450.07(a) Choreographic works embodied in motion picture form. A choreographic work may be embodied in motion-picture form. If such a motion picture constitutes the

deposit for registration, the registra­tion extends only to what is disclosed therein.

 

[1984]

 

400-20

 

450 Choreographic works. (cont’d)

 

450.07 Embodiment of choreography. (cont’d)

 

450.07(b) Notation systems. Labanotation, sutton Movement Shorthand, Benesch Choreo1ogy, and other systems of notation are appropriate forms of embodiment to represent the precise movements of the dancers. Such notation, however, is considered a system, and, therefore, is not registrable. See 17 U.S.C. 102(b).

 

450.07(c) Textual description. Precise explana­tions in narrative form, whether in copies or phonorecords, are acceptable if the description is specific enough to indicate detailed movements of the dancers. Where the description is not sufficiently specific, it cannot be registered as a choreographic work, but may be registrable as a literary work.

 

450.07(d) Combinations of various formats. A description might include a combination of forms of embodiment, for example, pictorial or graphic diagrams, or detailed verbal descriptions narrated to music on a phonorecord.

 

450.08 Derivative choreographic works. When sub­stantial new choreographic material has been added to preexisting choreography, it may be registered as a new choreographic work.

 

Example:

 

An addition of a new section to Petipa1s “Don Quixote.”

 

When the only preexisting material is a few public domain steps, for example, a waltz, or ballet positions, the work is not considered derivative. See section 450.05 above.

 

[1984]

 

400-21

 

450 Choreographic works. (cont'd)

 

450.08 Derivative choreographic works. (cont'd)

 

450.08(a) Other derivative works based on choreo-

graphy. Nonchoreographic additions may

be made to a choreographic work, for

example, where a nonchoreographic comedy

routine is interspersed between choreo-

graphic scenes. In this case, the claim

should be made on the new nonchoreo-

graphic material. As a practical

matter, however, the added material may

dictate changes in the choreography as

well, especially when new music or new

dramatic scenes are added.

 

450.09 Status of improvisation. Registration can-

not be made for improvisation to be provided

by the dancer unless such improvisation is

fixed.

 

[Numbers 451 through 459 are reserved.]

 

460 Pantomimes. Pantomimes are distinct from chore-

ographic works, and thus their registrability

does not depend on choreographic criteria.

 

460.01 Definition. Pantomime is the art of imi-

tating or acting out situations, characters,

or some other events with gestures and body

movement. Mime is included under this cate-

gory. Pantomimes need not tell a story or

be presented before an audience to be pro-

tected by copyright.

 

461 Pantomime content. To be registrable, panto-

mimes must include more than a few stock ges-

tures. As there is no copyright protection for

ideas in general, a style of movement imitating

mechanical dolls, for example, would not be

protectible. A significant amount of copyright-

able matter in the form of specific gestures in

 

[1984]

 

400-22

461 Pantomime content. (cont’d)

 

such style and embodied in some tangible form,

however, may be registered. Tableaux employing

less than a minimum amount of action are not

registrable as pantomimes. See section 433

above.

 

462 Distinction between pantomime and choreography.

In general, pantomime movement is more restricted

than dance although, within its narrower scope,

pantomime employs more gestures of the arms and

facial expressions. Also, pantomime is usually

more representational than choreography, in that

it imitates or is a caricature of some event or

situation. Pantomime movement is synchronized

with music less often than is choreography. In

fact, pantomimes are often performed without

music, and any accompanying sound is dictated

by the situation being portrayed. Most often,

however, pantomimes are performed without sound

or measured rhythm.

 

463 Embodiment of pantomimes. Unlike choreography,

pantomimes are not usually fixed using a speci-

fic form of symbolic notation. Conceivably,

however, the same systems could be used for

notating pantomimes as for dance. To register

a work as a pantomime, the movements must be

described in sufficient detail to enable the

work to be performed from such description, or

an actual performance must be captured on some

form of film or videotape. Subject to this

requirement, any form of copy or a narrative

description on a phonorecord will suffice.

 

[Numbers 464 through 469 are reserved.]

 

470 Audiovisual works. Audiovisual works are works

that consist of a series of related images which

are intrinsically intended to be shown by the use

of machines or devices such as projectors, viewers,

or electronic equipment, together with accompany-

ing sounds, if any, regardless of the nature of the

material objects, such as films or tapes, in which

the works are embodied. 17 U.S.C. 101.

 

[1984]

 

400-23

 

471 A motion-picture is a kind of audiovisual work.

Motion pictures are audiovisual works consis-

ting of a series of related images which, when

shown in succession, impart an impression of

motion, together with accompanying sounds, if

any. 17 U.S.C. 101. For a separate discussion

of motion pictures, see section 480 et seq.

below. It is possible for the series of

related images to be embodied in a medium that

is traditionally used for motion pictures, for

example, film or videotape, and not impart an

impression of motion. In such cases, the work

is audiovisual, but not a motion picture. A

series of related photographs or drawings

embodied in the film stock would not be con-

sidered a motion picture, unless, when shown,

the images give an impression of motion. Such

an impression of motion could be accomplished

by incorporating certain cinematic techniques,

such as panning in and out and dissolving.

 

472 Series of related images. It is the presence

of the series of related images embodied in a

filmstrip slides, or the like, which generally

determines that a work is audiovisual even where

this element does not predominate. For example,

where a work consists of a series of related

pictorial images, accompanied by a set of

booklets containing nondramatic literary printed

matter, the claim is usually appropriately

registered in Class PA, even though the printed

matter predominates.

 

473 Sounds accompanying an audiovisual work. When

sounds are present, they do not need to be

physically integrated with the series of related

images to be considered "accompanying sounds,"

for example, a filmstrip with a separate audio

cassette. By definition, there is a distinction

between the "accompanying sounds" of an audio-

visual work and the series of sounds in a "sound

recording." While sound recordings are works

that result from the fixation of a series of

musical, spoken, or other sounds, such sounds do

not include "sound accompanying a motion picture

or other audiovisual work."

 

[1984]

 

400-24

 

474 Forms of embodiment. The series of related

images in an audiovisual work may be embodied

in several different media, for example, a

filmstrip, slides, or transparencies. Any

accompanying sounds may be embodied in an audio

cassette, reel-to-reel tape, or disk. They

may also be physically integrated with the

related images, for example, in a cartridge.

For embodiments of audiovisual works which are

motion pictures, see section 480.02 below.

 

475 Authorship in an audiovisual work. Audiovisual

works embody several categories of authorship.

 

475.01 Visually perceptible authorship. Any kind

of visually perceptible material such as

photographs and artwork may be embodied

in the related images of the audiovisual

work.

 

475.02 Aurally perceptible authorship. If an aural

element is present, It may embody several

kinds of authorship such as dramatic or

nondramatic literary material, or music

which is recorded, as well as the "accom-

panying sounds."

 

476 Derivative audiovisual works. For registration

purposes, a derivative audiovisual work is a

work that incorporates previously published,

registered, or public domain material. If an

audiovisual work contains some photographs by

Mathew Brady as well as some new photographs,

the Form PA should be completed to show the

extent of the claim. Or, if the text recorded

in the aural element contains numerous Biblical

quotations, the quotations should be excluded

from the claim.

 

477 Multimedia works. A multimedia work is one

which combines two or more kinds of authorship

in two or more media, for example, a filmstrip

and cassette, or a booklet and slides.

 

[1984]

400-25

 

477 Multiple works. (cont’d)

 

477.01 Classification of multimedia works. The

content of the multimedia work determines

which class is appropriate for registration.

For example, the presence of a series of

related images makes the work audiovisual in

nature, and registration is generally appro-

priate in Class PA. See section 490 et

seq. for a discussion of multimedia works

that do not include an audiovisual element.

 

[Numbers 478 and 479 are reserved.]

 

480 Motion pictures. Motion pictures are audio-

visual works consisting of a series of related

images which, when shown in succession, impart

an impression of motion, together with accom-

panying sounds, if any. 17 U.S.C. 101.

 

480.01 Requirement of fixation. To be eligible

for copyright protection, a motion picture

must be fixed. See Chapter 200: COPYRIGHT-

ABLE MATTER --IN GENERAL. A telecast

transmission of a live performance is not

considered a "motion picture." However, a

motion picture is created when an authorized

fixation is made of a live performance or

telecast.

 

480.02 Forms of embodiment. Motion picture authorship

may be embodied in several different forms,

including the following:

1) Film- a thin sheet or strip of flexible

cellulose material coated with a photo-

sensitive emulsion.

 

2) Videotape- a magnetic tape containing

video signals or picture information

recorded by a television camera system.

 

3) Videodisk- a magnetic alloy-plated

aluminum disk on which picture infor-

mation is recorded.

 

[1984]

400-26

 

480 Motion pictures. (cont'd)

 

480.02 Forms of embodiment. (cont'd)

 

4) Hologram- a special photographic film

or plate which, when developed and

illuminated from behind by a coherent

light beam, produces an intangible

three-dimensional image in space. No

visual image appears on the film or

plate whose function is to record photo-

graphically a light-wave interference

pattern made by intersecting beams of

coherent light.

 

480.03 Copyrightable subject matter. A motion

picture may embody the contributions of many

persons whose efforts are brought together

to make a cinematographic work of author-

ship. Some examples of copyrightable

elements might be camerawork, directing,

editing, sound engineering, and other

cinematographic contributions. By contrast,

however, mere mechanical acts cannot serve

as the basis for copyright registration; for

example, a claim based on conversion from

35-mm film to one-half-inch videocassette is

not subject to registration.

 

480.04 Motion pictures as derivative works and

compilations. Generally, motion pictures

by their nature are derivative works. For

registration purposes, the motion picture is

considered derivative only when it incor-

porates previously registered, published,

or public domain material. In these cases,

the application should identify such pre-

existing material incorporated in the work

and also include a "material added" state-

ment. The following examples reflect how

this should be stated in the appropriate

space on the application form:

 

[1984]

 

400-27

 

480 Motion pictures. (cont'd)

 

480.04 Motion pictures derivative works and

compilations.

 

Preexisting                                            "Material added"

material                                                            statement

 

1) Previously published              1) All other cinema-

film footage from a                                tographic material.

1924 silent movie.

 

2) Novel: "The Ghost                 2) Television dramati-

of Hawk Mountain."                              zation.

 

3) Screenplay regis-                   3) Cinematographic

tered in 1960.                                        material.

 

Compilation authorship in a motion picture

is generally combined with editing authorship.

The following example reflects how this can

be stated on an application for registra-

tion:

 

Preexisting                                            "Material Added"

material                                                            statement

Assorted newsreel foot-                         Compilations and editing

age, still photographs,                 of old materials, plus

and radio commentaries                         new script and narra-

from 1938 to 1940, drawn                      tion, and some new cine-

from various sources.                matographic material.

 

[Numbers 481 through 484 are reserved.]

 

485 Motion pictures: special problems. Discussed

below are spec1al problems and policies that are

peculiar to motion pictures.

 

485.01 Fixation as it relates to publication. The

definition of “publication” includes the

offering to distribute copies. ..to a

group of persons for purposes of further

distribution, public performance, or public

 

[1984]

400-28

 

485 Motion pictures: special problems. (cont'd)

 

485.01 Fixation as it relates to publication. (cont’d )

 

display. 17 U.S.C. 101. This sentence is

generally recognized as including motion

picture distribution practices. Inherent

within the definition as a whole is the

presumption that copies are in existence

and ready for distribution before a work

can be published. Thus, offers in the

form of advertising, and catalog or other

distribution offers made before or during

~production of the motion picture, do not

constitute publication. For a general

discussion of fixation, see Chapter 100:

BASIC POLICIES.

 

485.02 Works made for hire. A "work made for hire"

Is a work prepared by an employee within the

scope of his or her employment: or. ..a

work specially ordered or commissioned for

use. ..as a part of a motion picture or

other audiovisual work. ..if the parties

expressly agree in a written instrument

signed by them that the work shall be con-

sidered a work made for hire. 17 U.S.C.

101. Ordinarily, a motion picture embodies

the contributions of a number of persons who

are employees in a work made for hire,

either by virtue of being employees working

within the scope of their employment, or by

special written agreement that their contri-

bution shall be considered a work made for

hire. In the case of a work made for hire,

the employer, and not the individual

employees who actually created the work, is

considered the "author" for copyright

purposes. For a general discussion of

authorship, see Chapter 200: COPYRIGHTABLE

MATTER --IN GENERAL.

 

(1984]

 

 

400-29

 

486 Deposit requirements for motion pictures. The

deposit required to accompany an application

for registration of copyright claims for pub-

lished and unpublished motion pictures is

discussed below. For a discussion of deposit

requirements for motion pictures, see Chapter

800: DEPOSIT FOR REGISTRATION, sections 806.13

and 807.

 

486.01 Description required. In all cases, whether

the motion picture is published or unpub-

lished, the deposit must include a written

description of the contents of the motion

picture. This may be a shooting script or

continuity, a pressbook, or a detailed

synopsis. 37 C.F.R. 202.20(c)(2)(ii). The

separate description should contain full,

complete, and detailed information about the

work, including the running time. When the

Copyright Office is asked, it will encourage

the deposit of a shooting script as the

description. NOTE: This description does

not in any way extend the registration

coverage beyond the material fixed in the

motion picture.

 

486.02 Unpublished motion pictures. The deposit

required to accompany an application for

registration of a copyright claim in an

unpublished motion picture, in addition to

the description, can be either of the

following:

 

1) One complete copy of the motion picture

containing all the visual and aural

elements that the registration covers:

or

 

2) Identifying material consisting of one

of the following:

 

a) An audio cassette or other audio

recording reproducing the entire

sound track or other sound portion

of the motion picture: or

 

[1984]

400-30

 

486 Deposit requirements for motion pictures.

(cont'd)

 

486.02 Unpublished motion pictures. (cont'd)

 

2) (cont'd)

 

b) A set of prints consisting of one

frame enlargement or similar visual

reproduction from each ten-minute

segment of the motion picture. Where

the work is a videorecording, prints

taken from the viewing monitor are

the preferred form of deposit.

486.03 Published motion pictures. The deposit

required to accompany an application for

registration of a claim to copyright in a

published motion picture, in addition to the

written description, is one complete copy of

the best edition.

 

486.04 Definition of "best edition." The "best

edition" is that edition published in the

United States at any time before the date

of deposit that the Library of Congress

determines to be most suitable for its

purposes. 37 C.F.R. 202.20(b)(1) and

202.19(b)(1). The criteria, listed in

descending order of preference, are:

 

1) Film rather than any other medium.

 

a) Preprint material, by special

arrangement

b) Most widely distributed film gauge

c) 35 mm rather than 16 mm

d) 16 mm rather than 8 mm

e) Special formats (for example, 70 mm)

only in exceptional cases

f) Open reel rather than cartridge or

cassette

 

[1984]

400-31

 

486 Deposit requirements for motion pictures.

(cont'd)

 

486.04 Definition of "best edition." (cont'd)

 

2) Videotape rather than videodisk

 

a) Most widely distributed tape gauge

b) Two-inch tape

c) One-inch tape

d) Three-quarter-inch tape cassette

e) One-half-inch tape cassette

 

See generally Appendix, 43 Fed. Reg. 763~771

(1978).

 

486.05 Definition of "complete." A copy of any

published or unpublished motion picture is

"complete" if the reproduction of all of the

visual and aural elements comprising the

copyrightable subject matter in the work is

clean, undamaged, undeteriorated, and free

of splices, and if the copy itself and its

physical housing are free from any defects

that would interfere with the performance

of the work or that would cause mechanical,

visual, or audible defects or distortions.

37 C.F.R. 202.20(b) (2) (vi).

 

486.06 Motion picture Agreement. The Copyright

Office Regulations permit copyright depos-

itors of published motion pictures to enter

into an agreement with the Library of Con-

gress allowing for the return of deposit

copies to such depositors under certain

conditions. 37 C.F.R. 202.20(c)(2)(ii).

The Motion picture Agreement provides that

after copyright registration has been com-

pleted, the deposit copy will be returned to

the depositor (upon written request and at

the depositor's expense) and is subject to

recall for the collections of the Library of

Congress within a period of two years. The

depositor, in signing the Motion Picture

 

[1984]

 

400-32

 

486 Deposit requirements for motion pictures.

(cont’d)

 

486.06 Motion picture Agreement. (cont’d)

 

Agreement, agrees to provide the Library of

Congress with a copy of archival quality if

and when such a copy is requested. See 43

Fed. Reg. 12,320-4 (1978) and Chapter 800:

DEPOSIT FOR REGISTRATON.

 

486.07 Motion Picture Agreement: Standard Modifi-

cation. Works initially published outside

the United States, but later published in

the United States prior to the date of

deposit are governed by the basic Motion

picture Agreement. Works published only

outside the United States may be made

subject to the Motion picture Agreement

if the Standard Modification is executed

by the depositor in addition to the basic

Motion picture Agreement. See Chapter 800:

DEPOSIT FOR REGISTRATION.

 

486.08 Motion Picture Agreement: Supplemental

Property Agreement. The purpose of the

Supplemental Property Agreement is to allow

the depositor to submit something other than

the "best edition" for registration. See

Chapter 800: DEPOSIT FOR REGISTRATION. By

filing a Supplemental property Agreement,

the depositor agrees to submit a best-

edition copy of archival quality, if the

Library calls for a copy of the motion

picture under the terms of the Motion

picture Agreement. See 43 Fed. Reg.

12,320-4 (1978).

 

487 Separately registrable works of authorship fixed

in film, videotape, or the like. For a dis-

cussion of deposit requirements for separately

registrable works of authorship fixed in film,

videotape, or the like, see Chapter 800: DEPOSIT

FOR REGISTRATION, section 806.13(b)(4).

 

[Numbers 488 and 489 are reserved.]

 

[1984]

400-33

 

490 Sound recordings. Sound recordings are works

that result from the fixation of a series of

musical, spoken, or other sounds, but not

including the sounds accompanying a motion

picture or other audiovisual work, regardless

of the nature of the material objects, such as

disks, tapes, or other phonorecords, in which

they are embodied. 17 U.S.C. 101.

 

491 Sound recording distinction from underlying work.

Copyright in a sound recording relates only to

the particular series of sounds constituting the

recording. It is not the same as, nor is it a

substitute for, copyright in a musical, dramatic,

or literary work, the performance of which is

recorded.

 

492 Sound recording distinct from sounds accom-

panying audiovisual work. Sounds accompanying

audiovisual works, whether physically integrated

with the audiovisual work (such as a sound track

on a motion picture) or fixed on a separate ,

tape, disk, or other such object, are not sound

recordings under the statute.

 

492.01 Classification. Where a sound recording I

claim is asserted in sounds accompanying an I

audiovisual work, and the complete audio-

visual work is being registered, the Copy-

right Office will request a new application

in the class appropriate to audiovisual ,

works. See section 470 et. seq. above.

 

Example:

 

A multimedia kit containing a filmstrip

and an accompanying cassette tape is sub-

mitted in Class SR with a claim on "sounds,

text, and photographic material." Since

this is an audiovisual work, the sounds

are not considered a "sound recording,"

and are not registrable as such. The

claim to copyright should be registered

in Class PA as an audiovisual work. See

sections 470 and 477 above.

 

[1984]

400-34

 

492 Sound recording distinction from sounds accompany-

ing audiovisual work. (cont'd)

 

492.02 Extent of claim. Where a sound recording

contains sounds previously published as part

of a motion picture, the claim must be

limited to the material not contained in the

motion picture. See section 496.03 below.

 

Example:

 

Album jacket states "original sound track

recording," and application asserts an

unlimited claim in sounds. The Copy-

right Office will question whether the

sounds are the same as those originally

fixed in the motion picture, or whether

they have been altered. If the sounds

are unchanged, they are not considered a

"sound recording" and the claim cannot

be registered as a sound recording. (The

sounds could be, and generally are,

covered by the registration for the

motion picture.} However, if the sounds

are substantially altered from those in

the motion picture, perhaps remixed from

the original multi-track tapes, a claim

in the sounds may be registered, but it

must be limited to the new material, as

for example, the remixing.

 

493 Forms of embodiment. Sound recordings are

embodied in phonorecords.

 

493.01 Statutory definition of phonorecords.

"Phonorecords are material objects in which

sounds, other than those accompanying a motion

picture or other audiovisual work, are fixed

by any method now known or later developed,

and from which the sounds can be perceived,

reproduced, or otherwise communicated, either

directly or with the aid of a machine or

device. The term "phonorecords" includes the

material object in which the sounds are first

fixed. 17 U.S.C. 101.

 

[1984]
400-35

 

493 Forms of embodiment. (cont'd)

 

493.02 Types of phonorecords. Examples include the

following:

 

I) Vinyl disks: common types are 45-r.p.m.

and 33-r.p.m.

 

2) Audio tapes: open reels, cartridges, and

cassettes.

 

3) Player piano rolls: perforated sheets on

a roll.

 

4) Sound cards: cards with sound embodied

in horizontal tape strip.

 

5) Sound sheets: paper backed with an oxide

cover.

 

6) Perforated metal disks: such disks

include sprocketed disks often used in

.music boxes.

 

493.03 Distinction between phonorecords and sound

recordings. The term "phonorecord" refers

only to the material object in which a work

is embodied: the phonorecord itself is not a

work of authorship. A "sound recording," on

the other hand, is a work of authorship,

regardless of the type of phonorecord in

which it is embodied.

 

493.04 Distinction between phonorecords and copies.

"Copies" are material objects, other than

phonorecords, in which a work is fixed. See

17 U.S.C. 101. The term "copy" usually

applies to a material object from which a

work can be visually perceived (with or

without the aid of a device or machine),

but may also refer to a material object in

which sounds accompanying a audiovisual work

are fixed. The term "phonorecord" applies

to a material object in which sounds are

fixed, other than those sounds accompanying

an audiovisual work.

 

[1984]

400-36

 

494 Date of fixation as affects eligibility. No

sound recording fixed before February 15, 1972,

is subject to Federal copyright protection. See

17 U.S.C. 301(c}. Any sounds fixed before

February 15, 1972, must be excluded from the

claim. Where it appears that all or a substan-

tial part of the sounds may have been fixed

before February 15, 1972, the basis of the claim

will be questioned.

 

494.01 Definition of fixation. A work is "fixed"

in a tangible medium of expression when its

embodiment in a copy or phonorecord, by or

under the authority of the author, is suffi-

ciently permanent or stable to permit it to

be perceived, reproduced, or otherwise

communicated for a period of more than

transitory duration. 17 U.S.C. 101.

 

Examples:

 

1) Phonorecord jacket states: "Recorded

live in 1970." The Copyright Office

will question the date of fixation.

 

2) Phonorecords indicate that the work is a

compilation of disk jockey radio shows

of the 1940's with some new musical and

narrative material. The Copyright

Office will question the fixation date

of the sounds from the disk jockey radio

shows. If fixed before February 15,

1972, these sounds should be excluded

from the claim.

 

3) Phonorecords state that the work consists

of some of the last live performances of

a musician who died before February 15,

1972. The Copyright Office will question

the date of fixation. If all sounds were

fixed before February 15, 1972, the only

possible claim is in the compilation.

 

[1984]

 

400-37

 

494 Date of fixation as it affects eligibility.

(cont'd)

 

494.01 Definition of fixation. (cont'd)

 

4) The work recorded is an opera. Phono-

records state: "The famous radio broad-

cast of this opera on December 7, 1940,

is made available for the first time."

The Copyright Office will question the

date of fixation. If the sounds in the

radio broadcast were fixed at the time

of original transmission, the sound

recording is not registrable.

 

494.02 State protection for sound recordings fixed

before February 15, 1972. with respect to

sound recordings fixed before February 15,

1972, any rights or remedies under the

common law or statutes of any State shall

not be annulled or limited by the copyright

law until February 15, 2047. 17 U.S.C.

301(c).

 

495 Copyrightable subject matter. To be regis-

trable, there must be an appreciable amount of

original sound recording authorship. Registra-

tion as a sound recording is not authorized if

original authorship is lacking, as for example,

where there is no human authorship and the

recording results from a purely mechanical

process.

 

495.01 Types of copyrightable authorship. Sound

recording authorship may be contributed by

the performer or the record producer.

Usually, authorship is contributed by both

performer and producer. The Copyright

Office will accept an application naming the

performer or the producer or both as

author(s) of the sound recording, provided

it is clear that the author(s) named con-

tributed copyrightable authorship.

 

[1984]

400-38

 

495 Copyrightable subject matter. (cont'd)

 

495.02 Authorship on the part of the performer.

Only a human performer can contribute per-

formance authorship. Such performance will

presumably result in a sound recording when

the performance is fixed on a phonorecord.

 

495.02(a) Musical sounds. Included are sounds

produced by vocalists and instrumental-

ists.

 

Examples:

1) A recording of a vocalist performing

selected songs of a well-known

contemporary composer.

 

2) A recording of a pianist performing

a Beethoven sonata.

 

495.02(b) Spoken sounds. Included are sounds

spoken by an actor, orator, lecturer,

or the like.

 

Examples:

 

1) A recording of an actor portraying

Hamlet.

 

2) A recording of a preacher delivering

a sermon.

 

495.03 Authorship on the part of the producer. This

type of authorship involves capturing and elec-

tronically processing the sounds, and compiling

and editing them to make the final recording.

 

495.03(a) Producer's contribution in the recording

of musical or spoken sounds. Where there

is sound recording authorship on the part

of the performer, the producer may have also

contributed copyrightable sound engineering

authorship to the sound recording.

 

[1984]

400-39

 

495 Copyrightable subject matter. (cont'd)

 

495.03 Authorship on the part of the producer.

(cont'd)

 

495.03(b) Producer's contribution in the recording

of other sounds. In some cases, for -

example where sounds are produced by

nature or non-human sources, the copy-

rightability of the sound recording

depends on the contribution of the

record producer in selecting, recording,

and mixing the sounds.

 

Examples:

 

I) Recording of bird calls.

 

2) Recording of sounds of racing cars.

 

496 Sound recordings as derivative works. A deri-

vative work is-one based upon one or more pre-

existing works, such as a translation, musical

arrangement, dramatization, fictionalization,

motion picture version, sound recording, art

reproduction, abridgment, condensation, or any

other form in which a work may be recast, trans-

formed, or adapted. A work consisting of edi-

torial revisions, annotations, elaborations, or

other modifications which, as a whole, represent

an original work of authorship, is a derivative

work. 17 U.S.C. 101. A sound recording usually

embodies a pre-existing musical composition or

literary work, and in that sense is usually a

derivative work.

 

496.01 Derivative sound recordings. For registra-

tion purposes, a derivative sound recording

is one in which previously published or

registered recorded sounds are rearranged,

remixed, or otherwise altered in sequence

or character. A sound recording consisting

of an entirely new and independent fixation

of original sounds is not a derivative sound

recording for registration purposes. This

 

[1984]

400-40

 

496 Sound recordings as derivative works. (cont'd)

 

496.01 Derivative sound recordings. (cont'd)

 

distinction is important since it determines

when a "material added" statement will be

required on the application.

 

Examples:

 

1) A sound recording of a Beethoven symphony

may be considered a derivative work under

the definition in the statute, in the sense

that it embodies a preexisting musical

composition. If it is an entirely new

recording, however, the Copyright Office

does not regard it as a derivative sound

recording for registration purposes.

 

2) If a previously released recording of a

Beethoven symphony was later remixed, the

resulting sound recording would be a deri-

vative sound recording.

 

496.01(a) When a "material added" statement will

not be required. On an application for

registration, a statement of material

added will not be required for a sound

recording consisting of an entirely new

fixation where the authorship statement

refers only to the sound recording.

 

496.01(b) When a "material added" statement will

be required. On an application for

registration, the Copyright Office will

require a statement of material added

for a sound recording containing pre-

viously published or registered sounds,

or sounds fixed before February 15,

1972. The Copyright Office will also

require a statement of material added if

the authorship statement on the appli-

cation refers to element(s) other than

the sound recording (for example, the

underlying work or artwork on the record

jacket) which have been previously pub-

lished or registered.

 

[1984]

400-41

 

496 Sound recordings as derivative works. (cont'd)

 

496.02 Types of derivated sound recordings. These

include sound recordings with additional

recorded material or preexisting sounds

recast.

 

496.03 Registrability of derivative authorship. A

new version is registrable only If It con-

tains at least a certain minimum amount of

recast sounds or new recorded material.

Where only a few slight variations or minor

additions of no substance have been made,

registration is not possible. Also, where

the changes are the result of mechanical

rather than creative processes, registration

will be refused.

 

496.03(a) Additional recorded material. Where

more than a certain minimum amount of

new recorded material is added to pre-

viously released or registered sounds,

the new version is registrable. The

claim should be limited accordingly.

 

496.03(b) Preexisting sounds recast. This

includes recordings reissued with sub-

stantial editorial revisions or abridg-

ments of the recorded material. NOTE:

For specific definitions of terms listed

below, see the Glossary of Terms in

section 499 below.

 

496.03(b)(1) Copyrightable elements. The

following elements are acceptable

as descriptions of material added:

Remixed

Remixed for quad from original multi-

track sound sources

- Remixed for continuity and balance

- Resequencing

- Sweetening

- New mix

- Remixed for stereo

[1984]

400-42

 

496 Sound recordings as derivative works. (cont'd)

 

496.03 Registrability of derivative authorship.

(cont'd)

 

496.03(b) Preexisting sounds recast. (cont'd)

 

496.03(b)(1) Copyrightable elements. (cont'd)

 

- Remixed for monaural sound

- Compilation (see also section 497

below).

 

496.03(b)(2) Noncopyrightable elements. Claims based

solely on the following elements will be

refused:

 

- New master cut

- Remastering

- Enhanced stereo

- Encoding a two-track master onto

four channels

- Reprocessing

- Compatible stereo

- Simulated stereo

- Electronically rechanneling for

stereo (or quad)

- Electronically enhanced

- Derived 4-channel

- Declicking

- Reissue

- Dolbyized

 

NOTE: Any claim in a sound recording

originally fixed before February 15,

1972, must be limited to whatever

sound recording authorship may have

been added on or after February 15,

1972. See section 494 above. Where

the original fixation was in a mono-

phonic recording, the possibility of

adding copyrightable authorship by

editing or mixing in the course of

reprocessing is minimal or non-

existent, so that the copyrightable

 

[1984]

400-43

 

496 Sound recordings as derivative works. (cont'd)

 

496.03 Registrability of derivative authorship.

(cont'd)

 

496.03(b) Preexisting sounds recast. (cont'd)

 

496.03(b)(2) Noncopyrightable elements. (cont'd)

 

NOTE: (cont'd)

 

content of the original sounds and

the new ones remains essentially

unchanged. In such a case, the date

the original recording was made is

the date of fixation, and there is

generally no new sound recording

authorship {except compilation,

where appropriate) on which to base

a claim. Most recordings made

before 1960 fall into this cate-

gory.

 

496.03(b)(3) Minimal contributions. The follow-

ing elements may involve effort, but

registration based on them alone

will be refused. However, where

they are included in addition to

clearly copyrightable new material,

the claim should be registered.

 

- Changing the treble (highs) and

bass (lows)

- Equalization

- Reverberation

- Balancing

 

496.03(b)(4) Elements whose registrability is subject

to question. These include the following:

 

1) Editing. The Copyright Office

will question "editing" when

this is the only statement of

new material. A claim based on

"editing" should be defined in

terms of specific sound engi-

neering techniques employed.

 

[1984]

400-44

496 Sound recordings as derivative works. (cont'd)

 

496.03 Registrability of derivative authorship.

(cont'd)

 

496.03(b) Preexisting sounds recast. (cont'd)

 

496.03 (b)(4) Elements whose registrability is

subject to question. (cont'd)

 

2) Abridgment. Such a claim will

not be questioned unless there

is reason to doubt its substan-

tiality.

 

3) Overdub. If there is newly

recorded material added, the

Copyright Office will register

the claim: otherwise, an expla-

nation of the nature and extent

of the claim will be requested.

 

4) Re-engineering. The Copyright

Office will request an explana-

tion.

 

496.03(b)(5) Ambiguous or unfamiliar terms. The

Copyright Office will question am-

biguous or unfamiliar terms.

 

497 Compilations. A compilation is a work formed

by the collection and assembling of preexisting

materials or of data that are selected, coordi-

nated, or arranged in such a way that the

resulting work as a whole constitutes an orig-

inal work of authorship. 17 U.S.C. 101.

 

497.01 Registrable compilations. A collection of

previously published or registered sound

recordings, or of sound recordings fixed

before February 15, 1972, in which the

assembling, selection, or combination of

works represents original authorship, con-

stitutes a registrable compilation.

 

[1984]

 

400-45

 

497 Compilations. (cont'd)

 

497.01 Registrable compilations. (cont'd)

 

Examples:

 

1) "The Greatest Country & Western

Recordings of 1975"

 

2) "The Greatest Recordings of the Nine

Beethoven Symphonies" (a recording of

the nine Beethoven symphonies, each

performed by a different orchestra and

conductor)

 

497.02 Non-registrable compilations. A mere re-

publication together of several previously

released or registered sound recordings,

where no appreciable degree of original

authorship was involved in putting the

sound recordings together, does not con-

stitute a registrable compilation.

 

Examples:

 

1) Combination of three previously released

recordings. The Copyright Office will

refuse a claim in compilation, since the

compilation of only three selections

does not represent enough authorship to

support such a claim.

 

2) A well-known conductor's recordings of

the Nine Beethoven Symphonies with the

same orchestra, where all nine sympho-

nies have been previously released sepa-

rately. The Copyright Office will

refuse to register the claim in compila-

tion. Merely grouping together a single

conductor's recordings of the nine

Beethoven symphonies with the same

orchestra does not represent enough

original authorship to support a claim

 

[1984]

 

 

400-46

 

498 Multimedia works. A multimedia work is one

which, excluding the physical housing of its

components, combines two or more kinds of

authorship in two or more of the following

media: phonorecords, copies from which the work

may be visually perceived without the aid of a

machine or device, and copies from which the

work is intrinsically intended to be perceived

with the aid of a machine or device.

 

498.01 Audiovisual multimedia works. These incor-

porate an audiovisual work: any accompanying

sound element is not registrable as a sound

recording. See sections 492 and 470 above.

 

498.02 Nonaudiovisual multimedia works. A non-

audiovisual multimedia work generally incor-

porates a sound recording accompanied by

material which can be perceived visually

without the aid of a machine or device (for

example, textual material in a booklet). The

sound recording and any material published

with it, such as underlying text, or accom- -

panying text or illustrations, may be regis-

tered together in Class SR. For registra-

bility of various elements, see sections

appropriate to each such element.

 

[Numbers 498.03 through 498.99 are reserved.]

 

499 Glossary of terms. The following is a list

of terms commonly used with reference to sound

recordings.

 

BALANCE -- relative level or volume, for

example, between different or

instruments, bass and treble,

or different tracks or channels.

 

BALANCING -- adjusting the relative levels

of voices or instruments,

bass and treble, or recorded

tracks.

 

[1984]

400-47

 

499 Glossary of terms. (cont'd)

 

CARTRIDGE -- an enclosed package containing a

continuous loop of magnetic tape

and its winding apparatus, thus

removing the need for handling

the tape.

 

CASSETTE -- a sealed package containing a

length of magnetic tape and

winding apparatus which can

be loaded into a player without

handling or threading the tape.

 

CHANNEL -- a single recording path, for

example, from microphone to

speaker.

 

DECLICKING -- in reprocessing sounds from

an old 78-r.p.m. recording,

the process of eliminating

the noises or "clicks" pro-

duced by groove irregulari-

ties, by manually or elec-

tronically removing them from

the tape made from the old

recording.

 

DECODING -- transforming information from

a form suitable for trans-

mission to a form suitable

for use. Frequently used in

reference to quadraphonic

recordings, which require an

electronic "decoder" for

playback.

 

DOLBYIZED -- refers to a recording pro-

cessed through a particular

noise reduction device (a

"dolby"). The dolby achieves

noise reduction by raising

the volume of quiet passages

while recording and lowering

them to proper levels while

playing back.

 

[1984]

400-48

 

499 Glossary of terms. (cont'd)

 

DUB -- to duplicate a sound recording

by making an exact recording

from that recording; or a

duplication of a recording

made by dubbing; to dub may

also mean to add sounds to a

recording or to combine two

or more sources of sound (at

least one of which is a

recording) into one record.

 

EDITING -- cutting and splicing tape to

rearrange recorded material,

thus changing content, form,

or replacing undesirable

material.

 

ENCODING -- to convert (as a body of

information) from one system

of communication into another;

.especially to convert infor-

mation into code; for example,

reprocessing a stereo record-

ing into a quadraphonic for-

mat which can be played on

equipment with a quadraphonic

decoder to produce a quadra-

phonic effect.

 

EQUALIZATION -- the process of boosting treble

during recording and boosting

bass during playback, so as to

compensate for losses in record-

ing and reproduction, usually

with the intent of achieving a

result as close to the original

performance as possible.

 

LOOP -- a length of tape with its ends

spliced together for continuous

playback.

 

[1984]

400-49

 

499 Glossary of terms. (cont'd)

 

MASTER -- may refer to the original

recording made directly from

recording microphones, the

final mixed-down tape from

which other recordings are

made, or the lacquer disk

from which stampers are made

for vinyl pressings.

 

MIXING -- combining many separate tracks

into fewer tracks, usually one,

two, or four.

 

MONOPHONIC -- recorded on a single channel

or played back from a single

sound source.

 

MULTI-TRACK -- refers to a recorder which

produces, or a recording

which contains, more than two

tracks or channels of rec-

orded information, generally

eight or more.

 

OVERDUB -- mixing previously recorded

material with new material.

QUADRAPHONIC four-channel sound reproduc-

tion.

 

REMASTERING -- cutting a new master from the

original recording, usually

without remixing.

 

REMIXING -- mixing down from multiple tracks

to one, two, or four tracks for

the second or any subsequent time.

REVERBERATION prolongation of sounds by

repetition, resulting from

sound reflections in a large

hall or simulating such

reflections.

 

[1984]

 

400-50

 

499 Glossary of terms. (cont'd)

 

STEREOPHONIC -- sound reproduction on two or

more channels.

 

COMPATIBLE STEREO -- refers to

a recording which may be

played on either stereophonic

or monophonic equipment with-

out loss of quality.

 

ENHANCED STEREO -- refers to

a stereo recording in which

the stereo effect has been

augmented by increasing or

heightening the separation

between channels.

 

SIMULATED STEREO -- refers to a

recording originally made mono-

phonically, reprocessed so as

to get a stereo effect.

 

SWEETENING -- the addition of strings, brass, ..

background vocals, etc. to a

previously recorded tape.

 

[END OF CHAPTER 400]

 

[1984]