Compendium of US Copyright Office Practices (1973)/Chapter 13

In the case of a copyrighted musical composition, the copyright owner has an exclusive right to record the work on mechanical instruments such as phonograph records, up to the time he himself records the composition or licenses someone else to record it.

b.

Once the copyright owner has recorded the copyrighted musical composition on mechanical instruments, or licensed someone else to record it, he must file a "notice of use" in the Copyright Office in order to collect royalties from others who record the composition.

c.

When the copyright owner has filed a "notice of use" in the Copyright Office, showing that he has recorded his copyrighted musical composition or licensed it for recording, others who wish to record it must either:

1.

Obtain a license from the copyright owner, or

2.

Record the composition without the copyright owner's permission, relying on the "compulsory license" provided in the statute.

d.

The "compulsory license" provision operates as follows: when a copyrighted musical composition has been recorded under the copyright owner's authority and a notice of use has been filed in the Copyright Office, anyone may record the composition without the owner's permission if he: (1) sends the copyright owner a "notice of intention to use," and sends a duplicate of this notice to the Copyright Office; (2) pays the copyright owner a fee of 2 cents for each part manufactured; and (3) makes the required reports to the copyright proprietor of the number of records he manufactures.

II.

The "notice of use" requirement. "It shall be the duty of the copyright owner, it he uses the musical composition himself for the manufacture of parts of instruments serving to reproduce mechanically the musical work, or licenses others to do so, to file notice thereof, accompanied by a recording fee, in the Copyright Office, and any failure to file such notice shall be a complete defense to any suit, action, or proceeding for any infringement of such copyright." (17 U.S.C. § 1(e).)

III.

The "notice of intention to use" requirement. "Whenever any person, in the absence of a license agreement, intends to use a copyrighted musical composition upon the parts of instruments serving to reproduce mechanically the musical work, relying upon the compulsory license provision of this title, he shall serve notice of such intention, by registered mail, upon the copyright proprietor at his last address disclosed by the records of the Copyright Office, sending to the Copyright Office a duplicate of such notice;..." (17 U.S.C. § 101(e).)

13.1.2

Copyright Office policy.

I.

The function the Copyright Office performs in recording notices of use is similar to its function in recording assignments and related documents. (See Chapter 12.)

a.

As a rule the Copyright Office makes no effort to evaluate the accuracy of the statements given in a notice of use, but merely records and indexes any notice of use that meets the minimum formal requirements. (See part 13.3.)

b.

In exceptional cases, where it seems clear from the notice of use itself, or from accompanying correspondence, that the notice has been filed under a misconception of the law, the Copyright Office will write, pointing out the possible difficulty.

Examples of common misconceptions concerning notices of use:

(1)

That a notice of use may be filed instead of registering a claim to copyright.

(2)

That filing a notice of use secures copyright protection for the performance recorded, or for the recording as such.

(3)

That filing a notice of use secures protection for the title or idea for a song or a recording.

(4)

That filing a notice of use is required for non-musical material (stories, poems, lectures, etc.) reproduced on sound recordings.

(5)

That filing a notice of use offers protection for a phonograph label, or for the name or trademark of a recording company.

II.

Ordinarily the Copyright Office makes no effort to search its records to determine whether the musical compositions listed on a notice of use have been registered for copyright, or whether the titles are correctly stated. However, where it appears that the notice of use may have been filed under a misconception, a limited search may be undertaken in order to spot-check the information given on the notice.

III.

There are no circumstances in which the Copyright Office will require the recordation of a notice of use. Where appropriate, however, the Office may point out the "compulsory license" provisions of the law and suggest the desirability of recording a notice of use.

IV.

Where it is not altogether clear whether the filing of a notice of use is appropriate in a particular case, the Copyright Office will not discourage recordation. The Office will point out the statutory provisions to the person filing the notice, and will proceed with recordation if requested.

Part 13.2 APPROPRIATENESS OF A NOTICE OF USE

13.2.1

In General. Generally, the following four circumstances should all exist in order for the recordation of a notice of use to be appropriate:

I.

All works listed in the notice should be copyrighted.

II.

All works listed in the notice should be musical compositions.

III.

All works listed in the notice should either have been recorded or licensed for recording by the copyright owner.

IV.

The notice should be filed under the authority and in the name of the present owner of copyright in all compositions it lists.

13.2.2

Works listed should be copyrighted.

I.

As a rule, where it is apparent that the works listed on a notice of use have not yet been copyrighted, or are now in the public domain, the desirability of recording the notice will be questioned.

Examples:

(1)

Title listed as: "Rock, Caterpillar, Rock (no copyright filed as yet)."

(2)

Title listed as: "Beethoven's Symphony No. 7."

II.

Where a notice of use is accompanied by an application for registration covering the same composition as that listed on the notice, no question will be raised concerning the fact that the composition has not yet been copyrighted.

a.

This is true even where the title given on the notice is followed by a statement such as "copyright pending" or "submitted herewith."

b.

Where an application and notice of use covering the same unpublished composition are filed concurrently, and action on the application must be deferred because of some defect, action on the notice of use should not be deferred unless there is reason to doubt that registration for the work will be completed.

Examples:

(1)

Where the detect is lack of signature, the notice of use should be recorded without waiting for the new application.

(2)

Where there is a question as to the ownership of the copyright, the notice of use should not be recorded until entry has been made.

III.

Where it is clear or probable that the compositions listed on a notice of use have been published with a copyright notice, the fact that claims to copyright have never been registered will not affect the recordability of the notice. In appropriate cases, however, the necessity for registering a claim may be pointed out to the person submitting the notice, and the case may be referred to the Compliance Section for possible action.

13.2.3

Works listed should be musical compositions.

I.

Recordation of a notice of use should be discouraged where it seems clear that the works listed on the notice are neither musical compositions nor copyrightable works containing music.

Examples:

(1)

Title on notice: "The Poems of Dylan Milkweed, Vol. II".

(2)

Title on notice: "Mario Lasagna Sings! (a Concert Hall Recording, NaXL-7777)."

II

A notice of use will not be questioned where it seems clear that the works listed are musical compositions, even though registration for them, or for larger works containing them, has been made in a class other than Class E.

Examples:

(1)

Title on notice: "The Miraculous Minotaur, a dramatic cantata by Bela Earayk (Du-12345, January 13, 1949)".

(2)

Title on notice: "Sing, You Sibling!" words and music by Ziggy Miltown from "Songs are Better than Tranquilizers" by Dr. Josiah Rank (A-12345, January,13, 1949).

(3)

Title on notice: "Main title and score of Blood of the Son of Dracula (Lp-12345, January 13, 1949)."

13.2.4

Works listed should be recorded or licensed for recording.

I.

The Copyright Office ordinarily will not inquire as to whether or not a work has been recorded or licensed for recording at the time a notice of use covering it is filed. However, if it is clear from the correspondence or other circumstances that there has been no recording or license, or that the notice of use has been filed under a misconception, the notice should be questioned.

II.

For a notice of use to be appropriate, it is necessary that the composition be used, or licensed for use, "for the manufacture of parts of instruments serving to reproduce mechanically the musical work."

a.

Since the law makes no distinction between test or audition records and commercial records, the Copyright Office will not question a notice even when it is clear that only audition records have been made.

b.

For a notice of use to be appropriate, the recording need not necessarily have been reproduced on disks; no question will be raised as to the method of reproduction as long as it involves any form of sound recording--tape, wire, perforated rolls, motion picture sound tracks, etc.

13.2.5

Notice should be filed by copyright owner.

I.

A notice of use should be filed by or under the authority of the owner of copyright in all the compositions listed in the notice, and should list his name as copyright owner. A notice filed in the name of a record producer, licensee, performer, etc., should be questioned if it appears that the person listed is not now the copyright owner.

II.

The copyright owner listed in a notice of use should be the present owner of the copyright, even though copyright was secured in the name of an earlier owner.

a.

The notice should be recorded in the name of the present owner, even though this name appears nowhere in the Copyright Office records in connection with the copyrighted work.

b.

In appropriate cases, the Copyright Office may suggest the desirability of recording an assignment.

13.2.6

Other cases where a notice may or should be filed.

I.

When a new copyrighted arrangement or other copyrighted new version of a musical composition is recorded, a new notice should be filed, even though notices have already been filed for the original version of the work, or for earlier arrangements.

a.

The notice in such cases should be recorded in the name of the present owner of copyright in the arrangement or new version, rather than the owner of copyright in the basic composition.

b.

A notice in such cases may be recorded even when the new matter in the revised version of the composition consists of non-musical elements.

Examples:

(1)

New words for an old song.

(2)

A medley consisting of a compilation of old songs.

(3)

A new abridgement of Handel's "Messiah."

II.

Where a notice of use has been recorded for a composition during the first term of copyright, it is doubtful whether a new notice need be recorded when the copyright is renewed, but the recording of a notice will not be discouraged in such a case.

III.

Where a notice of use has been recorded for a composition in the name of the owner of copyright at that time, it is doubtful whether a new notice need be recorded when the copyright is transferred to a new owner, but the recording of a notice will not be discouraged in such a case.

IV.

A new notice of use may be filed to correct an error in a previously recorded notice.

Part 13.3 FORMAL SUFFICIENCY AND RECORDATION OF A NOTICE OF USE

13.3.1

Form. A notice of use should be filed on Form U. The second half of the form, which is a duplicate of the first half, is returned to the sender as an acknowledgment that his notice has been recorded.

13.3.2

Copyright owner.

I.

Line 1 of the notice of use should contain only the name and address of the present owner of the copyrights in all the compositions listed on the notice.

a.

Where the compositions are owned jointly or in common by two or more owners, who are the same for all the compositions listed, the names and addresses of all joint or co-owners should be given in line 1.

b.

Where all the compositions are owned jointly or in common by two or more owners, who are the same for the compositions listed, a notice filed in the name of only one or part of the owners will be recorded without question.

II.

Where two or more owners and two or more titles are given in the notice, the Copyright Office records may be spot-checked to determine whether all the owners listed actually own copyright in all the compositions listed. Where different owners are involved, separate notices of use should be filed.

13.3.3

Title.

I.

As a rule, the notice of use should list the title of each separate copyrighted musical composition that has been recorded.

II.

The title given should ordinarily be that under which the recordings were made, even though it differs from the title under which a copyright claim in the work was registered. It is desirable that the title under which registration was made should also be given, for clear identification of the copyrighted work in question.

Examples:

(1)

Title on notice: "Bye Bye Blues by Buddy Bomb (registered as So Long Blues, Eu-12345, June 30, 1956)".

(2)

Title on notice: "My Heart's a Wanderer by James Schovill, in Pardon My Past (Ep-123456, June 30, 1956)".

III.

A notice will be accepted if it contains a title sufficient to identify the musical composition in question. As further means of identification, however, it is desirable that the title be followed by the names of the authors, the registration number, and the copyright year date.

IV.

The notice of use should not contain information concerning the performers who have recorded the works, or concerning the recordings themselves. Where this information has been given, and it appears that there may be a misunderstanding concerning the notice of use requirements or the purpose of a notice of use, a new notice should be requested omitting this information.

13.3.4.

Date of recordation.

I.

The date of recordation for a notice of use is the date the last necessary element (acceptable notice and required fee) is received.

a.

When it is necessary to request a new notice because of some defect in the earlier one filed, the date the new notice is received is regarded as the date of recordation.

b.

When the fee, or part of the fee, is received after receipt of the notice, the date of receipt of the amount making up the total fee is the date of recordation.

II.

Where the fee is to be charged to a Deposit Account, and the Deposit Account does not contain funds sufficient to record the notice, recordation is deferred pending replenishment of the Deposit Account or receipt of a separate recording fee. However, it is the date the notice was received, rather than the date sufficient funds are received, that is regarded as the date of recordation in such cases.

13.3.5

Recording fee.

I.

Statutory provision. Section 215 of the Code prescribes the following recording fees: "For recording a notice of use, $3, for each notice of not more than five titles; and 50 cents for each additional title."

II.

Number of titles.

a.

Generally, in determining the number of titles in a notice of use, the same considerations as those applicable to assignments and related documents are observed. (See item 12.5.5.III.)

b.

Where a notice lists the general title of a collective work, together with the titles of two or more compositions included in the work, it may be necessary to ask the sender how he wishes the notice indexed, in order to determine the recording fee. (Example: Title given as "Some of My Best Friends are Children Folio, containing Finder's Keepers, The Woodchuck, Allee in the Tree, and Kick the Can Willy.")

1.

If the sender wishes the notice of use indexed only under the collective title, the Copyright Office will write and request a new notice of use giving only the collective title and charge for only one title.

2.

If the sender wishes the notice of use indexed under both the individual titles and the collective title, he will be requested to file a new notice listing them all on separate lines.

3.

If the sender wishes the notice of use indexed under the individual titles but not the collective title, a new notice should be filed listing the individual titles separately, each followed by the title of the collective work.

Example:

"Finder's Keepers, in Some of My Best Friends are Children Folio."

Part 13.4 NOTICES OF INTENTION TO USE

13.4.1

Definition. A "notice of intention to use" is a notice given to the copyright owner by someone who intends to record the copyrighted work on mechanical instruments without a specific license, under the "compulsory licensing provisions." (See item 13.1.1.) The notice of intention to use is sent to the copyright owner by registered mail, and a copy is sent to the Copyright Office. No special form is required.

13.4.2

Processing of Notices of Intention to Use.

I.

When a notice of intention to use is received in the Copyright Office it is given a number, which is written in the upper right hand corner of the notice itself. Index cards are prepared under the titles listed in the notice, and the notice is then filed by number. The fee required for recording a notice of intention to use is the same as that required for a notice of use.

II.

When the Copyright Office receives a letter or other document which appears to have been sent in an effort to comply with the "notice of intention to use" requirements, but which clearly does not meet these requirements, the Copyright Office will write to the sender pointing out the provisions of the law.