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Third edition of USA copyright office compendium – publication issues of sound recordings for copyright registration purposes

For sound recordings, publication is the distribution of phonorecords of a work to the public by sale or other transfer of ownership or by rental, lease, or lending. Offering to distribute phonorecords to a group of persons for purposes of further distribution or public performance constitutes publication. A public performance of a sound recording does not, in and of itself, constitute publication.

Where the same sounds are published on both a soundtrack album and as part of a motion picture, the registration requirements (draft) vary depending on whether the soundtrack album or the motion picture was published first. The statutory definition of sound recording specifically excludes the sounds accompanying a motion picture. Thus, if the sounds were first published on a soundtrack album, they are considered a sound recording and cannot be registered as a motion picture. If the sounds were first published in a motion picture, they are considered the sounds accompanying a motion picture and cannot be registered as a sound recording.

If the soundtrack album was published before the motion picture, the applicant may register the sound recording without excluding any material that may be subsequently published in the motion picture. If the applicant subsequently submits an application for the motion picture, the portions of the sound recording that appeared on the soundtrack album should be excluded from the claim.

If the motion picture was published before the soundtrack album, the applicant may register the motion picture together with the sounds contained therein, provided that the copyright in the motion picture and the sounds are owned by the same claimant. The applicant may submit a separate application for the soundtrack album, provided that the album contains sounds or other copyrightable authorship that did not appear in the motion picture. In this situation, the sounds that appeared in the motion picture should be excluded from the claim. If the soundtrack album merely reprocessed sounds from the motion picture without change there would be no basis for registering the soundtrack album.

It is not possible to register the same series of sounds both as a sound recording and as sounds accompanying a motion picture. If an applicant submits a package containing a published CD and DVD, and attempts to register the same sounds both as a sound recording and as sounds accompanying a motion picture (such as a live concert and a concert video published together on the same date), the claim may include either the sound recording or the sounds accompanying the motion picture, but not both.

Where a single track is published as a single and then is subsequently published on an album, the single must be registered separately from the album because the dates of first publication differ. When completing the application for the single track the applicant should give the earlier date of publication. When completing the application for the remaining tracks on the album the applicant should give the later date of publication and should exclude the previously published track from the claim.

Where a previously published album is rereleased with a bonus track, the album and the bonus track must be registered separately because the dates of first publication are different. To register the previously published album the applicant should submit the album in the appropriate format and should provide the date of first publication for that work. To register the bonus track the applicant should submit the rereleased album in the appropriate format, provide the date of first publication for that album, and exclude the previously published recordings from the claim.

An unpublished collection of sound recordings and/or musical works may be registered together with one application and one filing fee 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 author must contribute copyrightable authorship to each element.

To register an unpublished collection of sound recordings and/or musical works, the applicant should list the individual titles and name the author(s) of those works. If there has been no transfer of ownership, the applicant should name the author(s) as the copyright claimant(s).

A group of works may be registered as an unpublished collection if the copyright in the works is owned by the same party and if an author contributed copyrightable authorship to all of the works. However, a separate application for each work will be required if the ownership of the copyrights is not the same or if there does not appear to be an author who contributed authorship to all of the works.

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