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803.4(C) Insufficiently Fixed Formats

Certain formats do not sufficiently fix a specific series of sounds. In such cases, the Office will not register a claim in sound recording. For example, standard midi files capture the underlying musical score, but they do not capture a specific series of sounds. While they contain instructions for producing sounds, any instrumentation may be applied, resulting in a file that contains different sounds each time it is played. For this reason, the Office does not consider standard midi files to be phonorecords and will not register a copyright claim in a sound recording contained in a standard midi file (although it may accept the claim as a musical work).

803.5 Copyrightable Authorship in Sound Recordings

803.5(A) Independent Creation

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.

803.5(B) Creative Expression

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). See 37 C.F.R. § 202.1(a); see also Chapter 300, Section 313.4(C).

803.5(C) Human Authorship

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 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.

For more information on mechanical processes see Chapter 300, Section 306.

Chapter 800 : 41

12/22/2014 Chapter _00 : 41