|Right||Sound Recordings||Musical Works|
|§ 106(1) right to reproduce the work||§ 114(b): The right extends only to reproductions of actual sounds--not imitations thereof. It thus includes synchronization rights.||§ 115(a): A compulsory license to make phonorecords of the work applies if phonorecords of the work have already been distributed to the public. Ask Harry Fox Agency, Inc. (HFA) or Copyright Office. The compulsory license does not include synchronization rights. Absent a compulsory license, reproducing the work may infringe it.
|§ 106(2) right to prepare derivative works||§ 114(b): The right extends only to reproduction of actual sounds--not imitations thereof.||§ 115(a)(2): A compulsory license to make phonorecords interpreting the work applies if phonorecords of the work have already been distributed to the public, but no such interpretation shall "change the basic melody or fundamental characteristics of the work" without the copyright owner's permission. Ask HFA or Copyright Office. Absent a compulsory license, creating derivative works may give rise to infringement.
|§ 106(3) right to distribute copies to public||You must license the work, absent an educational or public broadcasting exception per § 114(b).||§ 115(a): A compulsory license to distribute phonorecords of the work applies if phonorecords of the work have already been distributed to the public. Ask HFA or Copyright Office. Absent a compulsory license, distributing copies of the work to the public may give rise to infringement.
|§ 106(4) public performance right||§ 114(a): No rights exist under § 106(4).||Ask a collecting society such as ASCAP, BMI, or SESAC to license nondramatic (or "small") performance rights. Ask the work's publisher or the composer's agent to license dramatic (or "grand") performance rights, such as for synchronization. See also § 116 (specifying means of licensing jukebox performances), for which licenses you should ask the Jukebox License Office (a joint venture of ASCAP, BMI and SESAC).
|§ 106(6) right to publicly perform sound recording via digital audio transmission||§ 114(d)(1): no need to get author's permission for traditional broadcasts;*
§ 114(d)(2): pay statutory license for non-interactive subscription-like services or webcasts of AM/FM signals;*
§ 114(d)(3): get copyright owner's permission subject to antitrust-like limitations
|does not affect rights under § 106(4) or elsewhere to musical works embodied in sound recording|
Notes to the Table
This table illustrates, in admittedly cursory form, the differences between the copyright protection afforded to sound recordings and to nondramatic musical works under U.S. law. Note that in actuality the cited provisions often prove extraordinarily complicated and, thus, nothing can fully substitute for a close reading of the Act. All citations refer to the 1976 Copyright Act as Amended, 17 USCA § 101 et seq. (2004).
The copyright in a sound recording applies to any work of authorship resulting from the fixation of a series of musical, spoken, or other sounds, see § 101, and typically vests in those who make the sounds (e.g., a musical group) and/or those who fix them (e.g., a sound engineer). The Act specifies that sound recordings are fixed in "phonorecords," a term encompassing not just vinyl disks but all manner of fixing sound recordings. Id. Notice of a copyright in a sound recording takes the form, "(P) [year of first publication] [owner's name]." Section 402(b).
Although the Act does not define "musical work," plain meaning and general principles of copyright law suggest that the copyright in a musical work applies to any fixed musical composition. Nor does the Act define "nondramatic musical works," a term that presumably refers to musical works, such as pop singles, not incorporated and performed in an opera or theater musical. The copyright in a nondramatic musical work typically vests in its composer, who may fix the work via musical notation, a sound recording, or any means "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Section 101 (defining "fixed").
Note, however, that a sound recording sufficient to fix a musical work, and thus to qualify the work for copyright protection, may itself give rise to a separate copyright in the sound recording. Suppose, for instance, that a sound engineer records a jazz artist spontaneously crating a new musical work. The sound engineer might in that event share with the musician a joint copyright in the sound recording, because both would have mixed their authorship in fixing the musical sounds. See § 101 (defining "joint work"). Only the jazz artist would, however, own the copyright in the improvised musical work.
Notice of a copyright in a musical work takes the form, "(C) [or "Copyright" or "Copr."] [year of first publication] [owner's name]." Section 401(b).
* See Bonneville Int'l Corp. v. Peters, 347 F.3d 485 (3rd Cir. 2003) (upholding Copyright Office ruling, Public Performance of Sound Recordings, 65 Fed. Reg. 77292 (Dec. 11, 2000), that AM/FM broadcasters not exempt from rights afforded by § 106(6)).
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