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, Third Edition 803.5(D)

Pre-1972 Sound Recordings

Sound recordings were not protected under U.S. federal law until February 15, 1972, and the protection provided in 1972 was not retroactive. As such, sound recordings by U.S. authors that were first fixed prior to February 15, 1972 are not subject to federal copyright protection in the United States. 17 U.S.C. § 301(c).

Registration under the General Agreement on Tariffs and Trade ("GATT") may be possible for foreign sound recordings fixed prior to February 15, 1972. For more information on GATT registration, see Chapter 2000, Section 2007.

Sound recordings fixed before February 15, 1972 may be protected under state common law or statutes. The Copyright Act provides that any rights or remedies under the common law or statutes of any State shall not be annulled or limited by federal copyright law until February 15, 2067. 17 U.S.C. § 301(c).

803.6 Derivative Sound Recordings

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." 17 U.S.C. § 114(b). 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. For guidance on these procedures, see Chapter 600, Section 621.

IMPORTANT NOTE: 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. 17 U.S.C. § 103(a). 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. Id.; see also H.R. Rep. No. 94-1476, at 57-58 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670-71; S. Rep. No. 94-473, at 54-55 (1975).

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

803.6(A)

Permission to Use Preexisting Material

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