There are two types of sound recording authorship:
- Authorship in the performance(s); and
- Authorship in the production of the sound recording.
Both the performer and the producer of a sound recording of a musical performance or spoken word performance may contribute copyrightable authorship to the sound recording. Generally, the performance and production are considered a single, integrated work. In some cases, however, the main or sole contribution may be production authorship (as in a recording of bird songs, where there is no human performance) or the main contribution may be performance authorship (as in a recorded performance where the only production involved is to push the “record” button).
Examples of performance authorship include playing an instrument, singing, speaking, or creating other sounds that are captured and fixed in the sound recording. Individual performance authorship may be claimed only if the sound recording is comprised solely of an individual performance that is sufficiently creative. If a performance is part of an integrated work (e.g., a band performance), the Office will not accept a claim in an individual performer’s contribution to that work.
Examples of production authorship in a sound recording include (i) capturing and manipulating the sounds that are embodied in the sound recording, and (ii) compiling and editing those sounds to make the final recording.
To be copyrightable, a sound recording must originate from the author of that work, either through performance or production. A sound recording that is merely reproduced from another source is not copyrightable. To be registrable, a sound recording must contain a sufficient amount of creative, perceptible sound recording authorship fixed as a series of musical, spoken, or other sounds.
Elements that determine the sufficiency and creativity of a sound recording include the simultaneous or sequential number of sounds, the length of the recording, and the creativity perceptively expressed in creating, fixing, and manipulating the sounds. Short sound recordings may lack a sufficient amount of authorship to be copyrightable (just as words and short textual phrases are not copyrightable).
To be registrable, a sound recording must result from human authorship through performance and/or production. A sound recording will not be registered where there is no human authorship, such as a recording that results from a purely mechanical or automated process. The registration (draft) of a sound recording that involves no human performance, such as a recording of nature sounds, is only possible if there is sufficient human production authorship present.
Sound recordings were not protected under U.S. federal law until February 15, 1972, and the protection provided in 1972 was not retroactive. As such, sound recordings by U.S. authors that were first fixed prior to February 15, 1972 are not subject to federal copyright protection in the United States. Registration under the General Agreement on Tariffs and Trade (“GATT”) may be possible for foreign sound recordings fixed prior to February 15, 1972.
Sound recordings fixed before February 15, 1972 may be protected under state common law or statutes. The Copyright Act provides that any rights or remedies under the common law or statutes of any State shall not be annulled or limited by federal copyright law until February 15, 2067.