Third edition of USA copyright office compendium – types of derivative musical works

When sufficient new harmonies or instrumentation are added to a preexisting musical work, the musical arrangement may be registered as a derivative work.

Harmonization is the addition of chords or musical lines to a melody. To be copyrightable, the addition of chords to a melody must constitute sufficient new and original authorship, not simply standard chords in common sequences such as C, F, G, C. The harmonization of a melody using multiple musical lines involves additional compositional creative factors, such as voicing and counterpoint.

Musical instrumentation or orchestration is the distribution or redistribution of harmonic elements among different instruments. Instrumentation authorship may be registered as a derivative work if the author added sufficient original authorship to the preexisting work. Simply assigning entire lines from a preexisting work to new instruments would not be considered sufficient new authorship, such as a four-part choral work assigned without change to four brass instruments.

A musical adaptation may be registered as a derivative work if the author contributed a sufficient amount of original authorship to the preexisting musical work. An adaptation may involve a reworking of the melody, rhythm, harmony, and/or lyrics in a preexisting musical work that changes the style or genre of that work. It also may include a lyrical adaptation of the text of a preexisting work, such as an adapted poem or adapted Biblical text.

Variations usually consist of a theme followed by a number of changed or transformed versions of that theme. A registration for this type of work covers the new music that the author added to the work.

Setting usually means the act of putting a preexisting poem or text to new music. A registration for this type of work covers the new music that the author added to the work. A musical setting of Biblical or other preexisting text may be registered if the music represents sufficient original authorship. If there has been sufficient adaptation of the preexisting words, and if the preexisting text is in the public domain or has been used with permission, the claim also may include “some adapted lyrics.”

Sampling is the incorporation of a fragment or snippet from a preexisting recorded song into a new song. Sometimes the sampled portion is looped, modified, or repeated continuously. The Office may register such works based on the original new music or lyrics that the author added to the work, but not based on the use of the sample. Moreover, use of more than a de minimis amount of recognizable sample may be questioned for lawful inclusion.

The addition of music or lyrics, such as a new bridge or verse, may be registered if the additions represent sufficient original authorship. Small changes, however, such as substituting “he” for “she” in each incidence in a song would not be considered sufficient authorship to support a new claim.

Musical editing generally consists of adding markings for the performance of a musical composition, such as additional or altered fingering, accents, dynamics, and the like. Editing also may consist of textual notes on performance practice or the historical background for a musical composition. To assert a claim to copyright in this type of authorship, the applicant may use the term “musical editing”.

A work consisting of editorial revisions, annotations, elaborations, or other modifications which as a whole represent an original work of authorship, is a derivative work. These types of works may be registered only if the underlying authorship has been used lawfully. When asserting a claim to copyright in these types of work, the applicant may use the term “musical editing,” or may provide a more specific description of the new material that the author contributed to the work.

Instructional books for learning to play an instrument are sometimes known as method books.

Method books typically contain common property elements such as scales, arpeggios, chord charts, and musical examples taken from preexisting sources. They also may contain original elements, such as instructional text, new music, and original musical exercises. If a method book contains sufficient copyrightable text and/or new music, the application will be accepted on that basis.

A method book that contains only previously published material or chords, scales, exercises, and other information that is common property may be registered as a compilation (i.e., based on the selection, coordination, and/or arrangement of the preexisting material, if it contains at least a minimal amount of compilation authorship. If the compilation authorship is de minimis, the claim cannot be registered. For example (draft), a compilation of all the diatonic major and minor scales would not constitute sufficient creative compilation authorship, because the selection and arrangement is dictated by the Western musical scale system.