A musical work must originate from the author of that work to be protected by copyright. A musical work that is merely copied from another source is not copyrightable. For instance, a musical work consisting entirely of common property material would not constitute original authorship. Some examples of common property musical material include:
- Diatonic or chromatic scales.
- Arpeggios.
- Chord symbols based on standard chord progressions.
To be copyrightable, a musical work must contain a sufficient amount of creative musical expression. Generally, the musical and lyrical elements of the work are considered separately in determining whether there is sufficient creative expression. There is no predetermined number of notes, measures, or words that automatically constitutes de minimis authorship or automatically qualifies a work for copyright registration.
However, short musical phrases are not copyrightable because they lack a sufficient amount of authorship (just as words and short textual phrases are not copyrightable). For example, the phrase, “I love you so much it hurts” is both too short and too lacking in creative spark to be registrable. Similarly, a short phrase of only a few musical notes, such as clock chimes or “mi do re sol, sol, re mi do” would be considered too short and too lacking in creative expression to be registrable.
To be copyrightable, musical works, like all works of authorship, must be of human origin. A musical work created by solely by an animal would not be registrable, such as a bird song or whale song. Likewise, music generated entirely by a mechanical or an automated process is not copyrightable. For example, the automated transposition of a musical work from one key to another is not registrable. Nor could a musical composition created solely by a computer algorithm be registered.
A collective musical work is a work that contains “a number of contributions” that constitute “separate and independent works in themselves” that have been “assembled into a collective whole” “in such a way that the resulting work as a whole constitutes an original work of authorship.”
Collective works potentially contain two types of copyrightable authorship: (i) the compilation authorship involved in selecting, coordinating, and/or arranging a number of separate and independent musical works and assembling them into the collective whole; and (ii) the authorship involved in creating the music and/or lyrics for the individual musical works.
A collective work may be registered together with the individual musical works contained therein, provided that the collective work and the individual works are owned by the same party, and provided that the individual works have not been previously published or previously registered.
In no case may the claimant register (draft) a musical work that is in the public domain. If the owner of the individual musical works does not own the copyright in the collective work as a whole, then each musical work must be registered separately as an individual contribution to a collective work.