Issues related to derivative musical work authorship are set forth in Section 802.6(A) through 802. 6(J) below. For general information on derivative works, see Section 801.8 and Chapter 500, Section 507.
802.6(A) Permission to Use Preexisting Material
Musical works that unlawfully employ a work that is protected by copyright are not subject to copyright protection if they are inseparably intertwined with the preexisting work. 17 U.S.C. § 103(a); see also H.R. Rep. No. 94-1476, at 57-58 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670-5671; 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 determine whether it has been used lawfully, but if the preexisting material is known to the specialist he or she may communicate with the applicant. The applicant may clarify the lawful use of preexisting material by including a statement to that effect in the Note to Copyright Office field of the online application or in a cover letter submitted with the paper application.
Where the authorship of the derivative work is clearly separable from that of the preexisting work, such as when a songwriter sets a copyrighted poem to new music, the specialist generally will not communicate with the applicant to determine whether the use was lawful. Where the authorship of the derivative work is not separable from the preexisting work, such as a new printed arrangement of a copyrighted song, the specialist may ask whether the derivative author's arrangement lawfully incorporates the preexisting work. Where a work employs preexisting copyrighted material that is separable from the new material, the new work generally is registrable, even if the use of the preexisting material was unauthorized.
For more information concerning this issue, see Chapter 300, Section 313.6(B).
802.6(B) Permission to Use Under a Section 115 Compulsory License
Under the compulsory license provided in Section 115 of the Copyright Act, a performer may record a copyrighted nondramatic musical work and make an arrangement of that work for purposes of the recording without obtaining permission from the owner of the musical work, provided that the requirements of the statutory license have been met. 17 U.S.C. § 115(a)(l)-(2). While musical arrangements embodied in a phonorecord and made pursuant to a Section 115 ("mechanical") license to make and distribute phonorecords of nondramatic musical works may contain enough original authorship to qualify as derivative works, neither the performer nor the arranger may claim copyright in the new arrangement without express permission from the copyright owner of the musical work. 17 U.S.C. §115(a)(2). The registration specialist may communicate with the applicant if it seems unlikely that permission to create an arrangement of the preexisting musical work was obtained.
802.6(C) Musical Arrangements
When sufficient new harmonies or instrumentation are added to a preexisting musical work, the musical arrangement may be registered as a derivative work
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