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Copyright and "Sound Recordings"
Why the Fuss? It has never been difficult for the Copyright office to understand why the underlying musical composition precisely meets the subject matter requirements for copyright protection. As long as the work is an original one (and as case law demonstrates this is a very low threshold) and can be fixed in a form from which it can be copied and falls within one of the enumerated categories of Authorship in Section 102(a) then it can be copyrighted. If we take a closer look at Section 102(a) it describes in pertinent part the following requirements for copyrightable subject matter:
Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of Authorship include the following categories:
- literary works;
- musical works, including any accompanying words;
- dramatic works, including any accompanying music;
. . .
7. sound recordings; …
Note that music is found in a couple of places, but "sound recordings" are in a special separate category. The copyright Act provides some guidance for this special placement by defining "sound recordings" in Section 101:
Sound recordings’ are works that result from the fixation of a series of musical, spoken or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.
Review: There are at least two possible copyrights (and possibly more) in any record, tape, or other media to which sound has been affixed –one in the underlying musical composition and one in the sound recording itself. The composer of the music has almost always had copyright protection for the underlying music, but the producer or performer who made the recording had no copyright protection until relatively recently.
Why the need for the protection of "sound recordings"?
In 1972, Congress authorized revision of the Copyright Act to correct a huge problem that existed in the prior 1909 Copyright Act. The problem arose from a provision of the Act, as amended, which allowed composers the exclusive right to make arrangements to make a sound recording (a so called "authorization") in "any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced." Prior to this the composer had no right to authorize the sound recording and was not paid on any of the recordings containing his composition. While this was a big step forward, Congress did not have the foresight to predict what would happen once the author "authorized" such a sound recording. The 1909 Act provided that if the composer authorized the production of a sound recording ANY other person could make his own similar recording if he paid the composer the statutory royalty rate of 2 cents per copy. In short, Congress authorized pirating of the composer’s work for 2 cents a record. Why? Simple- there was no protection for the sound recording – only for the underlying musical composition.
Congress eventually figured this out and in the 1976 Act, sound recordings and phonorecords have full copyright protection. By granting copyright protection to sound recordings and phonorecords Congress fixed the piracy problem at the same time.
17 U.S.C.A.§ 115(a)(1) prevents producers of records from duplicating another person’s sound recording without the copyright owners express consent. Now, for a person to make a copy of a sound recording, they must get the permission of the owner of the copyright in the sound recording. The owner of the copyright in sound recording must still have the authorization of the owner of the copyright in the underlying musical composition in order to make the recording. If the work has already been released, that is, a first sale has been made, then a new sound recording of the underlying composition can be made without permission or authorization of the owner of the copyright in the musical composition but a royalty, currently 7.01 cents per composition (but the artist will never see this 7.01 cents –Why? Because this rate can be negotiated and is regularly negotiated to 3/4th of the statutory rate) must be paid to the composer for use of the composition. No copies can be made of the original sound recording without the consent of the owner of the copyright in the sound recording. (As you will see a little later on we will come back to this distinction)
Now that we know that "sound recordings" are copyrightable under the 1976 Copyright Act, Congress wasn’t about to completely abandon its original thinking on the subject. While granting "sound recordings" and "phonorecords" copyright protection, Congress placed some serious limitations on the scope of the exclusive rights granted these owners in a sound recording may have.
