A derivative sound recording is a sound recording that is based on preexisting sounds that have been “rearranged, remixed, or otherwise altered in sequence or quality.” Preexisting sounds may include sounds that have been previously published, previously registered, sounds in the public domain, sounds fixed before February 15, 1972, or sounds that are owned by another party.
The applicant should identify any preexisting work or works that the derivative recording is based on or incorporates, and should provide a brief general description of the additional material covered by the copyright claim being registered.
A sound recording usually embodies a preexisting musical composition, literary work, or dramatic work, and in that sense it is a derivative work of the underlying musical / literary / dramatic work which has been performed and recorded. For registration purposes, the Office does not require the musical / literary / dramatic work to be excluded from a claim in sound recording authorship, because the preexisting work is presumed to be excluded unless it is expressly claimed in the application.
Protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. Sound recordings that unlawfully employ preexisting sounds under copyright protection are not subject to copyright protection if they are inseparably intertwined with the preexisting sounds.
The U.S. Copyright Office generally does not investigate the copyright status of preexisting material or investigate whether it has been used lawfully. However, the registration specialist may communicate with the applicant to determine whether permission to use was obtained where a recognizable preexisting work has been incorporated in a sound recording. The applicant may clarify the lawful use of preexisting material by including a statement to that effect in the Note to Copyright Office field of the online application or in a cover letter submitted with the paper application.
To be registrable, a derivative sound recording must contain a sufficient amount of new, creative sound recording authorship. Where the changes made to the preexisting sound recording are the result of a purely mechanical process rather than creative human authorship, or where only a few slight variations or minor additions have been made, registration will be refused.
Although sound-alike recordings do not infringe preexisting sound recordings, a sound-alike recording is not copyrightable unless it contains new, original and sufficiently creative authorship to support a new registration. A virtually identical sound-alike recording will be refused registration (draft).