The Office uses the term “work of the performing arts” to collectively refer to the following works of authorship:
- Musical Works, including any accompanying words.
- Sound Recordings.
- Dramatic Works, including any accompanying music.
- Choreographic works.
- Audiovisual Works.
- Motion Pictures.
The Copyright Act does not define the term “work of the performing arts,” nor does it provide definitions for the majority of the works listed above (i.e., musical works, dramatic works, choreographic works, and pantomimes). When Congress revised what is now the Copyright Act of 1976, it determined that definitions for musical works, dramatic works, choreographic works, and pantomimes were unnecessary because these terms “have fairly settled meanings.” As a general matter, a work that was created to be performed before an audience, directly or indirectly, is a work of the performing arts.
The Office classifies the following types of works as works of the performing arts, but they also may be classified as literary works:
- Interviews intended to be performed before an audience (e.g., television interviews, radio interviews, onstage interviews, etc.)
- Lectures and sermons
Screen displays for videogames may be registered as visual art works, as well as works of the performing arts.
The Copyright Act states that “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 sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are transmitted, is ‘fixed’ … if a fixation of the work is being made simultaneously with its transmission”. All fixations of works of the performing arts are grouped into two main categories: copies and phonorecords.
Copies are “material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘copies’ includes the material object, other than a phonorecord, in which the work is first fixed.”
Copies include all forms of embodiment for works of the performing arts, except for “phonorecords”. Copies may be submitted in hard copy or electronic format. Examples of copies include, but are not limited to books, scripts, musical scores, sheet music, librettos, lyric sheets, filmstrips, and electronic text and presentation files.
A “phonorecord” is a material object “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 also refers to the material object in which sounds are first fixed. Phonorecords may be submitted in hard copy or electronic format. Examples of phonorecords include, but are not limited to .mp3 files, compact discs, LP albums, and audiotapes.
“To qualify for copyright protection, a work must be original to the author,” which means that the work must be “independently created by the author” and it must possesses “at least some minimal degree of creativity.”
The term “independent creation” means that the author created the work without copying from other works. The copyright law protects “those components of a work that are original to the author,” but “originality” does not require “novelty.” A work may satisfy the independent creation requirement “even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.”
In addition, a work of the performing arts must have at least a “modicum of creativity” to be copyrightable. This means that the fruits of creative thought originating from the author must be evident in the work, and the work must not be simply the result of wholesale copying, discovery, or an uncopyrightable change to a preexisting work. A work of the performing arts is deemed uncopyrightable if it does not constitute copyrightable subject matter, if it is not original to the author, or if it contains insufficient or de minimis expression.
Joint works are works “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” Works of the performing arts often have more than one author, and in many cases, the authors are joint authors. If the multiple authors of a work created their contributions with the intention of merging them into a unitary, interdependent whole at the time of creation, their contributions should be registered together as a joint work on the same application.
If the authors did not intend for their separate elements to be merged into an interdependent whole, the separate copyrightable elements should be registered as separate works on separate applications. If the parts of the unitary work are inseparable, each joint author must be listed in the application unless the work is a work made for hire.
A work made for hire is (i) “a work prepared by an employee within the scope of his or her employment” or (ii) “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”
A derivative work is “a work based upon one or more preexisting 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, transformed, or adapted. 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’”.
Generally (draft), if the author of the derivative work is not the copyright owner of the preexisting work, and the preexisting work is still under copyright protection, the author of the derivative work may not use the preexisting copyrighted work as the basis for a new work, unless a copyright exception applies. See, e.g., 17 U.S.C. § 115 (providing a compulsory license for the creation of a new sound recording of a preexisting nondramatic musical work).