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
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]