Copyright Compendium

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1509.2 (A) (2) (B) Musical Works Published in the United States in Printed Copies

 

1509.2 (A) (2) (B) Musical Works Published in the United States in Printed Copies

 

If the musical work was published in the United States solely in printed copies, the applicant should submit one complete copy of the best edition of that work.

 

Likewise, if the work was published both in printed copies and phonorecords that were distributed in the United States, the applicant should submit one complete copy of the best edition of that work. In other words, if the work was published on physical and electronic phonorecords (such as a compact disc and/or a digital audio file), and in physical or electronic copies (such as sheet music and/or PDF files), the applicant should submit one complete copy of the best edition of the printed work, rather than submitting a phonorecord.

 

When a musical work has been published in both copies and phonorecords, the Office considers the copies to be the best representation of the work. Visually perceptible formats typically contain a clear and precise representation of the music and lyrics that constitute the work. When a preexisting musical composition is published in a phonorecord, the sound recording is a separate work that recasts, transforms, or adapts the music and lyrics embodied in that recording. See 17 U.S.C. § 101 (definition of “derivative work”). And in cases where the music and sound recording are created simultaneously, it may be difficult to identify the author or co-authors of the music and sound recording or the respective owners or co-owners of each work.

 

To be clear, when a musical work is published solely in a phonorecord, the phonorecord constitutes the only representation of the work. In such cases, the applicant should submit the phonorecord, as discussed in Section 1509.2 (A) (2) (A). There is no need to transcribe or notate the work in a visually perceptible form. See Simplifying Deposit Requirements for Certain Literary Works and Musical Compositions, 82 Fed. Reg. 38,859, 38,862 (Aug. 16, 2017); Deposit Requirements: Proposed Rulemaking, 42 Fed. Reg. 59,302, 59,304 (Nov. 16, 1977).

 

The Copyright Act defines the “best edition” as “the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes.” 17 U.S.C. § 101 (emphasis added). In other words, this definition only applies to editions of a work that exist at the time that the deposit is submitted to the U.S. Copyright Office. If the applicant submits a musical work on a phonorecord, and if the same work is published in a printed copy sometime thereafter, there is no need to resubmit the work in its visually perceptible form. See 42 Fed. Reg. at 59,304.

 

The criteria used to determine the best edition for a copy of a musical work are listed in section VI of the “Best Edition Statement,” which is set forth in Appendix B to Part 202 of the Office’s regulations. The Best Edition Statement is also posted on the Office’s website in Best Edition of Published Copyrighted Works for the Collections of the Library of Congress (Circular 7b).

 

Specifically, if the musical work was published in a printed edition, the applicant should submit one complete copy of the work as published in that edition. If the work was published in multiple printed editions, the applicant should review the Best Edition Statement and should submit the edition that is listed highest on the list.

 

NOTE: There are two additional considerations for works published in the following formats:

 

• If the work was published as a full score and parts, the full score is considered the complete copy. Id. § 202.20 (B) (2)(vi) (A). If it was published as a conductor’s score and parts, the conductor’s score is considered the complete copy. Id. § 202.20 (B) (2)(vi) (B).

 

• If the musical work was published as a contribution to a collective work (such as a hymn published in a hymnal), the applicant may submit one complete copy of the collective work, or a photocopy of the work as it was published in the collective work. 37 C.F.R. § 202.20 (B) (2)(iv), (C) (2)(xv).