808.10(H)(2) Sounds Contained in Two Different Formats
As a general rule, the exact same recorded sounds cannot be registered as both a sound recording and as sounds accompanying a motion picture.
When the same sounds are published in different formats, such as a CD and a DVD, the applicant should decide whether to register the sounds as a sound recording or as sounds accompanying a motion picture. This determination may be based a number of factors, such as whether the copy or the phonorecord was registered or published before the motion picture. These issues are discussed in Sections 808.10(H)(2)(a) through 808.10(H)(2)(d).
808.10(H)(2)(a) Sounds Published on the Same Date
If the same sounds are published on DVD and CD on the same day, and they contain the same fixation of sounds:
• If the applicant prefers to register the sounds as part of the motion picture, the applicant should only submit an application for the motion picture.
• If the applicant prefers to register the sounds as a sound recording, the applicant should submit separate claims for the motion picture and the sound recording. The sounds should be excluded from the claim in the motion picture by stating "Sounds registered separately as a sound recording" in the Material Excluded field. Both claims will be registered.
808.10(H)(2)(b) Remixes
If the sounds published on a CD are a remix of the sounds published in the motion picture, and if the publication date is the same for both works, the applicant may register both works with separate applications.
By contrast, if the motion picture was published before the CD, the claim in the remix should be limited to the new sound recording authorship that appears on the CD by stating "remixed sound recording" in the New Material Included field. In addition, the sounds from the motion picture should be excluded from the claim by stating "sounds from previously published motion picture" in the Material Excluded field.
808.10(H)(2)(c) Sounds Published on Different Dates
If an applicant submits two applications for the same published sounds — one application for a motion picture submitted on a DVD and one application for a soundtrack album submitted on a CD — and if the applicant provides a different date of publication on each application, the registration specialist will communicate with the applicant.
If the soundtrack album was published before the motion picture, the previously published album should be excluded from the claim in the motion picture.
Chapter 800 : 119
12/22/2014
