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.

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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