A sound recording is defined as:
|“||a recording, fixed in any material form, consisting of sounds, whether or not a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work.||”|
|“||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.||”|
More generally, a sound recording is a recorded version of a musician singing or playing a musical work, as that rendition is captured in a tangible medium of expression such as a compact disc, cassette tape, vinyl album, or MP3 file. A sound recordings is a derivative work of the preexisting musical work, and to obtain a copyright in a sound recording one must secure a license from the copyright owner of the musical work.
Sound recordings have existed as one of the most salient features of Amer- ica’s cultural landscape for more than 130 years.
The sound recording copyright protects the elements of original authorship expressed in a particular recorded rendition. "The author of a sound recording is the performer(s) whose performance is fixed, or the record producer who processes the sounds and fixes them in the final recording, or both."
- reproduction of the copyrighted sound recording;
- preparation of derivative works based on the copyrighted sound recording;
- distribution of phonorecords of the sound recording to the public by sale, rental, lease or lending.
In addition, holders of sound recording copyrights have a qualified and limited public performance right. The Act covers the performance of the sound recording publicly by means of a digital audio transmission only.
State law protection
Sound recordings fixed before February 15, 1972 remain subject to protection afforded by state laws until February 15, 2067. State law protection for pre-1972 sound recordings generally took two forms: (1) statutes that criminalize intentional unauthorized copying and distribution of sound recordings for profit, and (2) civil law (usually common law, that is, judge-made law and not statutory law) prohibiting unauthorized copying and distribution of sound recordings, usually in a commercial context.
The criminal statutes were fairly similar from state to state. The applicable civil law, however, varied from state to state. State courts may protect sound recordings under a number of different legal theories, such as unfair competition, misappropriation, and common law copyright.
A sound recording can embody another work (referred to as the “underlying work”), such as a musical composition, a play, or a literary work such as a novel. Although pre-1972 sound recordings are generally not protected by copyright, these works embodied in them are protected by federal copyright law.
Sound Recording Act of 1971
Sound recordings were first granted protection beginning February 15, 1972 by the Sound Recording Act of 1971 (SRA). This law was concerned with the prevention of phonorecord piracy facilitated by advances in duplication technology. Under the Act, a sound recording copyright owners did not receive all of the exclusive rights conferred upon traditional copyright holders. They were granted reproduction, distribution and adaptation rights, but not performance rights. This limited copyright protection was incorporated into the 1976 Copyright Act.
Digital Performance Right in Sound Recordings Act
In 1995, Congress enacted the Digital Performance Right in Sound Recordings Act of 1995 (DPRA). This law created a new exclusive right to perform copyrighted sound recordings publicly by means of digital audio transmissions. Like the SRA, the DPRA was technology-driven. Its goal was to provide copyright holders of sound recordings the ability to control the distribution of their product by digital transmissions without hampering the arrival of new technologies and without imposing new and unreasonable burdens on radio and television broadcasters' traditional analog transmissions.
- Canadian Copyright Act §2.
- Copyright Office Circular 56A, at 1 (“Copyright Registration of Musical Compositions and Sound Recordings”).
- 17 U.S.C. §106(6). This right was added pursuant to the Digital Performance Right in Sound Recordings Act of 1995.
- 17 U.S.C. §301(c).
- Pub. L. No. 92-140 (Oct. 15, 1971).
- H.R. Rep. 104-274, 104th Cong., 1st Sess. 11 (1995) (to accompany the Digital Performance Right in Sound Recordings Act of 1995).
- S. Rep. 104-128, 104th Cong. 1st Sess. 15 (1995).