Sound Recordings & Copyright Law

By Jennifer Mueller

Section 102 of the U.S. Copyright Act includes sound recordings as a category of “original works of authorship” eligible for copyright protection. Like any other category, a sound recording is protected by copyright from the moment it is “fixed in any tangible means of expression.” Under the 1976 Copyright Act, copyright protection exists regardless of registration of a copyright claim or publication of the work.

Recordings Distinguished from Compositions

The copyright in a musical composition protects the music and lyrics of a song, and the composer, songwriter or lyricist is considered the author of the work. By contrast, a sound recording results from the fixation of sounds in some medium, and the author is either the performer or the producer who recorded the sound. Sound recordings are often, but not necessarily, recordings of musical compositions. For example, if an audio book is recorded, the sound recording copyright would protect that particular recording, but not the words of the literary work itself.

Exclusive Rights

As a sound recording copyright holder, the performer or producer retains the exclusive rights to reproduce and distribute the recording, as well as perform the work publicly: for example, by playing a copy of the sound recording over speakers at an event. Any live performances of the underlying music recorded would not infringe the sound recording copyright, but might infringe the copyright in the composition. The sound recording copyright holder also has the exclusive right to create derivative works based on the original: for example, by remixing the sounds recorded. As with other categories of protected works, sound recording copyright holders also have the right to license others to exercise these rights.

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Registration and Deposit

Copyright protection exists from the moment of fixation, and registration is not required. However, unregistered copyrights have minimal protection, do not enjoy the benefits of a public record, and may only recover actual damages. A copyright must be registered before an author may file a suit for infringement in federal court. In practice, an unregistered copyright can only serve as proof in a defense against allegations of infringement. Authors may register claims of copyright ownership using forms on the U.S. Copyright Office website. The Copyright Office requires claimants to deposit one copy of the sound recording if unpublished or two copies if it is published. Copies of unpublished sound recordings may be submitted as digital files.

Notice

Copyright notice is not required on any sound recording first published on or after March 1, 1989. Prior to that date, copyright notice was mandatory on all published works. Works first published prior to March 1, 1989, are still required to have notice affixed. Copyright notice for sound recordings differs from the notice for other categories of copyrighted work. A sound recording notice should include a (P) (the letter “P” in a circle, standing for "phonogram"), the year of first publication of the sound recording, and the name of the owner of the copyright in the sound recording.

Infringement

If a sound recording copyright holder discovers someone is copying and distributing his recording without his permission, he may file a lawsuit for infringement. Upon filing of the lawsuit, the judge may issue an injunction prohibiting the alleged infringer from continuing the activity until the dispute is resolved. If infringement is proven, the injunction may be made permanent. Additionally, infringing articles may be seized by the courts. If the sound recording copyright claim was filed within three months of the sound recording’s publication, the prevailing copyright holder is also entitled to statutory damages, costs, and attorney’s fees.

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Are Commercials Copyrighted?

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