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A musical work consists of the musical notes and lyrics (if any) in a musical composition.” A musical work may
be fixed in any form, such as a piece of sheet music or a
Musical works may be "dramatic," i.e., written as a part of a musical or other dramatic work, or "nondramatic," i.e., individual, free-standing composition.
Generally, a dramatic work is one in which a series of events is presented to the audience by characters through dialogue and action as the events happen, such as in a play.
PANTOMIMES AND CHOREOGRAPHIC WORKS
This category was first added to the list of protectible subject matter in 1976.4 While pantomimes and choreographic works, such as dances, can be fixed in a series of drawings or notations, they are usually fixed on film or videotape.
Congress did not define the term "musical work" in the statute based on the assumption that the term had a "fairly settled" meaning. See HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666-67. 99 A phonorecord generally embodies two works -- a musical work (or, in
( the case of spoken word recordings, a literary work) and a sound recording. Musical works available through services on the NII may also be the subject of Musical Instrument Digital Interface ("MIDI") recordings. A MIDI is a data stream between a musical unit in a computer and a music-producing instrument. The data stream instructs the instrument, such as a synthesizer, on what notes to play. 100
See H. ABRAMS, THE LAW OF COPYRIGHT 204[C][b][iv] (1993). The term "dramatic works" is not defined in the Act. See HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666-67. 101
Congress also declined to define the terms "pantomimes" and "choreographic works," again relying on "fairly settled meanings." See HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666-67.
PICTORIAL, GRAPHIC AND SCULPTURAL WORKS
A significant number of works traveling through the NII will be pictorial and graphic works. Works in this category include:
technical drawings, including architectural plans. A work of art which is incorporated into the design of a useful article, but which can stand by itself as art work separate from the useful article, is copyrightable, but the design of the useful article is not.
MOTION PICTURES AND OTHER AUDIOVISUAL WORKS
The Copyright Act provides definitions of "audiovisual works" and the subcategory "motion pictures":
"Audiovisual works" are works that consist of a
17 U.S.C. S 101 (1988) (definition of "pictorial, graphic, and sculptural works").
Mazer v. Stein, 347 U.S. 201, 214-17 (1954); see supra note 85.
17 U.S.C. S 101 (1988) (definition of "audiovisual works").
of motion, together with accompanying sounds,
if any." The House Report notes that the key to the subcategory "motion pictures" is the conveyance of the impression of motion, and that such an impression is not required to qualify as an audiovisual work. 106
A "sound recording" is the work that results from the fixation of sounds, including those that are musical or spoken. When those sounds are included in an audiovisual work, such as a music video, they are considered part of the audiovisual work rather than a sound recording.
An "architectural work" is "the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings." 109 It includes the overall form as well as the "arrangement and composition of spaces and elements" in the design of the building."
17 U.S.C.S 101 (1988) (definition of "motion pictures").
See HOUSE REPORT at 56, reprinted in 1976 U.S.C.C.A.N. 5669. 107
See 17 U.S.C. S 101 (1988) (definition of "sound recordings"). 108
The sounds accompanying an audiovisual work are specifically excluded from the definition of sound recordings. See id. 109
17 U.S.C. S 101 (Supp. V 1993) (definition of "architectural work"). The category of architectural works was added in 1990 by the Architectural Works Copyright Protection Act, Public Law 101-650, 1990 U.S.C.C.A.N. (104 Stat.) 5089, 5133.
COMPILATIONS AND DERIVATIVE WORKS
A compilation is "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship Directories, databases, magazines and anthologies are types of compilations.
A derivative work is a work "based upon" one or more preexisting works. A derivative work is created when one or more preexisting works is "recast, transformed, or adapted" into a new work, such as when a novel is used as the basis of a movie or when a drawing is transformed into a
Translations, musical arrangements and abridgments are types of derivative works.
The Copyright Act makes clear that the subject matter of copyright specified in Section 102 (literary works, musical works, sound recordings, etc.) includes compilations and derivative works."14 The copyright in a derivative work or compilation, however, extends only to the contribution of the author of the derivative work or compilation (the compiler), and does not affect the copyright protection granted to the preexisting material. Protection for an individual musical work, for instance, is not reduced, enlarged, shortened or extended if the work is included in a collection, such as a medley of songs.
17 U.S.C. $ 101 (1988) (definition of "compilation"). A "collective work," which is one kind of "compilation," is "a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole." 17 U.S.C. § 101 (1988) (definition of "collective work").
17 U.S.C. S 101 (1988) (definition of "derivative work").
Moreover, copyright in a compilation or derivative work does not imply any exclusive right in the preexisting, material employed in the compilation or derivative work. 116 The copyright in a compilation, for example, is limited to the original selection or arrangement of the facts or other elements compiled; protection for the compilation in no way extends to the facts or elements. 117
Copyright protection is not granted simply for the hard work that may be involved in compiling facts. The Supreme Court struck down the doctrine that had protected such efforts, known as the "sweat of the brow" or "industrial collection" theory.
Increasingly, works from different categories are fixed in a single tangible medium of expression. This will certainly be true as development of the NII progresses and the ability to
to create and disseminate interactive "multimedia" or "mixed media" products increases.
A prefatory note may be warranted because of the manner in which these terms are used in the context of copyright law. The terms "multimedia" and "mixed media" are, in fact, misnomers. In these works, it is the types or categories of works that are "multiple" or "mixed" -- not the types of media.
The very premise of a so-called
See Feist, supra note 36, at 350-51 (alphabetical "arrangement" of comprehensive list of telephone subscribers not sufficiently "original" and therefore noncopyrightable); see also supra pp. 32-34 (discussion of the noncopyrightability of facts).
See Feist, supra note 36, at 354 ("to accord copyright protection on this basis alone distorts basic copyright principles in that it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of 'writings' by 'authors'").
The embodiment of two or more different types of works in one medium is not a new concept. For instance, a book may contain both a literary work and pictorial works. A compact disc may contain a musical work and a sound recording.