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, Third Edition commissioned work under the statutory definition of work made for hire, then the performing group should be named as author and the work made for hire question should be answered "yes."

803.8(D) Work Made for Hire Authorship

For a sound recording to be made for hire, it must fall within the statutory definition. See 17 U.S.C. § 101 (definition of "work made for hire"). If the applicant states that a sound recording was a work made for hire and if it appears that the work does not fall within the statutory definition, the registration specialist may communicate with the applicant.

For a detailed discussion of works made for hire, see Chapter 500, Section 506.

803.8(E) Executive Producer

An executive producer of a sound recording generally is involved only in the financial or administrative aspect of production. This type of contribution does not constitute copyrightable sound recording authorship. When an executive producer does contribute copyrightable sound recording authorship, the applicant should describe that author's contribution using terms such as "production" or "sound recording" as appropriate, and not "executive producer."

803.8(F) Publication Issues

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. 17 U.S.C. § 101 (definition of "publication").

803.8(F)(1) Sounds Published on Both a Soundtrack Album and in a Motion Picture

Where the same sounds are published on both a soundtrack album and as part of a motion picture, the registration requirements 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. 17 U.S.C. § 101. 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

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