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What is a Copyright in a Sound Recording?
What is a Copyright?
A copyright is a group of exclusive rights belonging to the author or creator of an original
work to control how that work will be used. These exclusive rights are derived from the U.S.
Constitution in Article I Section 8 Clause 8. In pertinent part the Constitution states: " The
Congress shall have Power …To promote the Progress of Science and Useful Arts, by securing
for Limited Times to Authors and Inventors the exclusive Right to their respective Writings and
Discoveries."
Section 106 of the 1976 Copyright Act gives authors generally these five rights:
To reproduce the copyrighted work in copies or phonorecords. Phonorecords
are not copies for purposes of the copyright act. This has to do with a very old
case involving piano rolls so as the law developed the distinction has remained.
See White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S.ct.319,
52 L.Ed. 655 (1908)(holding piano rolls were not copies because they could not
be read or decoded by the naked eye and therefore were not copies of the
musical composition recorded upon them.)
To prepare a derivative work based upon a copyrighted work. When we are
talking about sound recordings this derivative work right becomes important. e.g.
when someone samples a copyrighted work without permission to create a new
work and then releases that recording under their own name this right protects
the original author from infringement of their original composition.
To distribute copies or phonorecords of the copyrighted work to the public by
sale or other transfer of ownership, or by rental, lease, or lending. This distribution
right has some unique twists when we are talking about phonorecords and sound
recordings. We will discuss these in great detail shortly.
To perform the copyrighted work publicly, in the case of literary, musical,
dramatic, and choreographic works, pantomimes, and motion pictures and other
audiovisual works. This performance right also takes a turn when we are
discussing phonorecords.
To display the copyrighted work publicly, in the case of literary, musical,
dramatic, and choreographic works, pantomimes, and pictorial, graphic, or
sculptural works, including the individual images of a motion picture or other
audiovisual work. Generally, this right is not a factor when we are talking about
sound recordings. Generally, the display right applies to things we can see.
Finally, in the case of sound recordings, to perform the work publicly by means
of a digital audio transmission. This is a relatively new right and not part of the
ones listed in Section 106. To find this one you must look at the Digital Audio
Recording Devices and Media Act of 1993.
While these rights are exclusive rights of the Copyright holder and it is illegal to infringe upon any of them, Congress has decided that many of these rights should not be so expansive and spends the majority of the Copyright Act chipping away at these exclusive rights. Sections 107 through Section 120 are limitations on these rights and some case are not merely limitations but wholesale exemptions from the copyright Act. These exemptions and limitations have been carved out by various groups as Congress has tinkered with the Copyright Act since enacting the first copyright statute in 1790. It has had four major revisions: 1831, 1870, 1909, and 1976. This is important because it indicates that Congress continues to tinker with the act, to refine it, so that it operates to protect original works of authorship for a limited period of time –as the Constitution commands.
Does this mean that the 1976 Act is perfect? No. It simply means that Congress,
when it spots a problem, enacts supplementary legislation to correct or fix problems. For example, Congress passed the Technical Amendments Act that fixes some problems in Satellite Home Viewer Act of 1994 (Public Law 103-369) and to make technical amendments to certain provisions of title 17, United States Code –which is The Copyright Act. What is key to remember is that the law regarding Copyright protection of original works is always changing and therefore one must stay current in order to not miss some important change that may affect your rights under the Act.
