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Compendium II: Copyright Office PracticesChapter 400 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.] [1984] 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 | |||||||||||