A derivative musical work is one that is based on one or more preexisting, copyrightable work(s) of any nature. The new music authorship may be registered if it represents sufficient new original authorship. The applicant should identify any preexisting work or works that the derivative work is based on or incorporates, and should provide a brief general statement identifying the additional material covered by the copyright claim being registered. Descriptions of new material might include:
- New or revised lyrics.
- New or revised arrangements.
Musical works that unlawfully employ a work that is protected by copyright are not subject to copyright protection if they are inseparably intertwined with the preexisting work. The U.S. Copyright Office generally does not investigate the copyright status of preexisting material or determine whether it has been used lawfully, but if the preexisting material is known to the specialist he or she may communicate with the applicant. The applicant may clarify the lawful use of preexisting material.
Where the authorship of the derivative work is clearly separable from that of the preexisting work, such as when a songwriter sets a copyrighted poem to new music, the specialist generally will not communicate with the applicant to determine whether the use was lawful. Where the authorship of the derivative work is not separable from the preexisting work, such as a new printed arrangement of a copyrighted song, the specialist may ask whether the derivative author’s arrangement lawfully incorporates the preexisting work.
Where a work employs preexisting copyrighted material that is separable from the new material, the new work generally is registrable, even if the use of the preexisting material was unauthorized.
Section 115 of the Copyright Act establishes a “compulsory license” permitting any person to make and distribute phonorecords of a nondramatic musical work without obtaining permission from the copyright owner of that work, if certain conditions are met.
In particular, the musical work must have been “distributed in the United States under the authority of the copyright owner.” A party using the compulsory license may also make a musical arrangement of the underlying musical work “to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work.”
Section 115(a)(2) also states that the arrangement “shall not be subject to protection as a derivative work” under the Copyright Act without “the express consent of the copyright owner.” This means that the arrangement cannot be registered with the U.S. Copyright Office unless the licensee obtains express consent from the owner of the musical work. This is the case even if the arrangement made pursuant to the compulsory license contains enough original authorship to qualify as a derivative work.
If it seems unlikely that the licensee obtained permission to claim copyright in the new arrangement of the preexisting musical work, the registration specialist may communicate with the applicant or may refuse registration (draft).