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Copyright Law: Distinguishing Between Musical Works and Sound Recordings

In general terms, federal copyright protection extends to “original works of authorship fixed in any tangible medium of expression.” Pursuant to Section 102 of the federal Copyright Act (the Act), works of authorship include, among other categories:

  1. Musical works, including any accompanying words; and
  2. Sound recordings.

As these two categories often overlap, understanding the difference between “musical works” and “sound recordings” can be crucial to understanding the scope of copyright protection afforded to each.

Copyright Protection for Musical Works

First, federal copyright law provides for copyright protection in “musical works, including any accompanying words.” The U.S. Copyright Office has interpreted “musical works” to include “both original compositions and original arrangements or other new versions of earlier compositions to which new copyrightable authorship has been added.”

Although copyright protection is usually automatic from the moment a work is created, registering a work with the Copyright Office is a better method of providing others with notice, and can provide more remedies for the copyright owner in case of infringement. The copyright owners of musical works can register their work with the Copyright Office by completing the Performing Arts application form (Form PA), which must be accompanied by a “deposit” of the work to be registered. Depending on the type of work to be registered, the deposit requirement varies from either one or two copies of the “best edition” of the work.

“Best Edition” Requirement

The Act requires that deposits be of the “best edition” of the work. The “best edition” is usually the edition that the Library of Congress determines to be “most suitable for its purposes.” When two or more editions of the same work have been published, the “best edition” is typically the one of the highest quality. For example, the Library of Congress considers compact digital disks to be the “best edition” of a phonorecord, as compared to a vinyl disk or a tape.

Copyright Protection for Sound Recordings

The Act also provides copyright protection for “sound recordings,” which are defined as “works that result from the fixation of a series of musical, spoken, or other sounds.” Sound recordings are typically “fixed” in “phonorecords,” which are the material objects in which sounds are fixed, such as tapes and disks (among other formats). The author of a sound recording is the performer, or the record producer, or both.

The author of a sound recording can register the work with the Copyright Office by completing the Sound Recordings application form (Form SR). When the same person owns the copyrights in both a musical work and a sound recording fixed in a phonorecord, Form SR may be used to register both. There is also a deposit requirement to register a copyright claim in a sound recording, which varies from either one or two copies of the best edition, depending on several factors.

The Duration of Copyright for Pre-1972 Sound Recordings

Federal copyright protection generally does not apply to sound recordings first fixed prior to February 15, 1972. This means that pre-1972 sound recordings are usually protected by individual state statutes. Perhaps the most significant effect of this exception is on the extended duration of copyright protection for pre-1972 sound recordings.

Although the federal Copyright Act generally preempts state copyright laws, there is an exception for pre-1972 sound recordings. Specifically, state copyright laws offering protection for pre-1972 sound recordings will not be preempted by federal law until February 15, 2067. While the duration of federal copyright protection is generally 95 years from publication (depending on the nature of the work), a state’s copyright laws can provide an indefinite term of protection for certain works. Therefore, pre-1972 sound recordings will not be subject to the 95-year term of protection provided by federal law until 2067. Accordingly, pre-1972 sound recordings will not enter the public domain as soon as they would have had they been subject to federal law from the beginning.

Compulsory License for Making and Distributing Phonorecords

Although the Act provides copyright protection in sound recordings made by individuals other than the original author of the musical work, it is important to note that copyright in a “nondramatic” musical work (i.e., not including the sounds accompanying a motion picture or other audiovisual work) includes the right to make and distribute the first sound recording. This means that the original author of a musical work has the exclusive right to make the first sound recording, although others are permitted to make subsequent sound recordings with the original author’s permission.

In recognition of the original author’s exclusive right to make the first sound recording, Section 115 of the federal Copyright Act requires all others to “obtain a compulsory license to make and distribute phonorecords of the work.” In order to obtain a compulsory license in compliance with this provision, an individual must notify the copyright owner of their intention to do so within 30 days of making the sound recording, and before distributing any phonorecords of the work.