A musical work and a sound recording of that work are separate works. For example, the song “America the Beautiful” and a recording of Whitney Houston singing “America the Beautiful” are two distinct works. The song itself (i.e., the music and lyrics) is a “musical work.” An audio recording of that song performed by a particular artist is a “sound recording.”
A registration (draft) for a musical work covers the music and lyrics (if any) embodied in that composition, but it does not cover a particular recording of that composition. Likewise, a registration for a recording of a particular musical work covers the performance and production authorship involved in creating that recording, but does not cover the music or lyrics embodied in the underlying composition.
A musical work and a sound recording of that work may be registered with one application and one filing fee if the composition and the recording are embodied in the same phonorecord and if the claimant owns the copyright in both works. If the copyright in the musical work and the sound recording are owned by different parties, a separate application and filing fee must be submitted for each work.
It also may be possible to register multiple musical works together with a sound recording of each work if the compositions and the recordings are owned by the same claimant and if they were packaged or physically bundled together as a single unit and first published on the same date. This is known as the unit of publication option.
A public performance or display of a work does not, in and of itself, constitute publication. If an applicant gives a publication date, but states that the publication date refers to a performance of the musical work, the registration specialist will communicate with the applicant.
Under the current copyright law, the public distribution of phonorecords on or after January 1, 1978 publishes the musical works recorded therein. By contrast, musical works distributed only in the form of phonorecords (e.g., records, tapes, or discs) prior to January 1, 1978, cannot be registered as published works under the 1909 Act or the 1976 Act.
Thus, if a musical work was released only in phonorecords prior to January 1, 1978 and if the phonorecords were still available as of that date, the date of first publication for registration purposes would be January 1, 1978. If the phonorecords were no longer available as of January 1, 1978, but the musical work was subsequently rereleased in any format, the rerelease date would be considered the date of first publication. If the phonorecords were no longer available as of January 1, 1978, and the musical work was not subsequently rereleased, the work may be registered as an unpublished work.
Two or more unpublished songs, song lyrics, or other musical works may be registered with one application and filing fee, but only under the following conditions:
- All the works must be unpublished;
- The works must be assembled in an orderly form;
- The combined works must bear a single title identifying the collection as a whole;
- The copyright claimant(s) in all of the works, and in the collection as a whole, must be the same; and
- All of the works must be by the same author; or, if they are by different authors, at least one of the authors must contribute copyrightable authorship to each work.
If it appears that the conditions for registering an unpublished collection have not been met, the registration specialist will communicate with the applicant or may reject the claim.
When registering musical works as an unpublished collection, applicants frequently overlook the requirement that the copyright owner(s) must be the same for each and every song. If this is not the case, the songs cannot be registered with the same application and filing fee. Copyright initially belongs to the author and can be transferred by a written agreement or other legal means. If the songs are by different combinations of authors and there has been no transfer of ownership, the copyright ownership requirement has not been met.