Third edition of USA copyright office compendium – audiovisual works

What Is an Audiovisual Work?

The Copyright Act defines audiovisual works as “works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.”

• Types of audiovisual works include:
• Motion pictures.
• Arcade games and videogames.
• Karaoke displays.
• Applications designed for mobile phones and tablets.
• Banner advertisements.
• Webinars.
• Slide presentations.
• Multimedia kits that have an audiovisual component.
• Virtual reality environments.

There is a legal distinction between the “soundtrack” of an audiovisual work and a “sound recording.” The statutory definition of a sound recording specifically states that this category does not include “sounds accompanying a motion picture or other audiovisual work.”

Audiovisual works often include visual art works, namely pictorial and graphic images. Audiovisual works are distinguished from visual art works in that the images in an audiovisual work (i) must be in a series, (ii) must be related, and (iii) must be intended to be shown by the use of a machine or device. Visual art works have no such requirements.

Audiovisual works may include text and a screen display comprised solely of text may constitute an “image” within an audiovisual work. The statutory definition of a literary work specifically states that this category does not include audiovisual works.

Thus, continuous text, such as the text of a book, magazine, journal, or other literary work appearing on the screen of a device such as a tablet or karaoke machine would not be considered an audiovisual work.

Elements of Audiovisual Works

Any kind of visually perceptible images, such as photographs, artwork, and text, or a combination thereof, may satisfy the requirement that an audiovisual work contain visually perceptible material. The series of related images may appear on succeeding screens (such as a slide presentation) or as images in motion (such as a videogame).

A key element of authorship in an audiovisual work is that the images must have some connection to one another and must be displayed as a series. A slide presentation created as a cohesive work, for instance, is a series of images, while a single slide or unorganized group of random slides is not.

A key element of an audiovisual work is that the images must be “intrinsically intended to be shown by the use of machines or devices.” Such machines and devices include disc and video cassette players, electronic devices that play digital files, such as computers, tablets, and mobile phones, and machines with dedicated hardware, such as videogame consoles.

The authorship in an audiovisual work generally is considered a single, integrated work and must be registered as a whole, with the possible exception of a computer program or musical score that was not created with the intention of being part of the audiovisual work. For this reason, the individual elements of authorship in an audiovisual work generally cannot be registered as separate works.

An audiovisual work may, and often does, include aurally perceptible authorship in the form of recorded words, music, and sounds. Aurally perceptible authorship, however, is not a required element in a copyrightable audiovisual work.

The term “soundtrack” refers to the accompanying sounds of an audiovisual work, which may include spoken text, sound effects, background music, or musical compositions. Generally, the soundtrack and the audiovisual work constitute a single, integrated work.

When sounds are present in an audiovisual work, they do not need to be physically integrated with the visual element in order to be considered “accompanying sounds.” Most contemporary audiovisual works contain physically integrated sounds. For example, the soundtrack of a motion picture or the sounds of a videogame are considered integrated sounds.

By contrast, sounds are considered non-physically integrated if the images and the sounds are fixed on separate objects, such as a filmstrip with a separate compact disc containing the narration that accompanies the still images.

Fixation of Audiovisual Works

To be protected by copyright, an audiovisual work must be fixed in a tangible medium of expression. Audiovisual works may be fixed in copies and generally they are fixed in one or more of the following electronic or hard copy formats:

• Machines, such as computers, tablets, mobile phones, and arcade consoles.
• Machine readable copies, such as CD-ROMs, hard drives, and flashdrives.
• Discs or tapes, such as Blu-ray, DVD, or videotape.
• Videogame discs and cartridges for consoles with dedicated hardware.
• Server hosted digital files.

Copyrightable Authorship in Audiovisual Works

An audiovisual work must contain a sufficient amount of original and creative human authorship to be copyrightable. The visual material, the aural material, and the flow of the work as a whole will be evaluated in determining whether the work can be registered.

An audiovisual work must originate from the author of that work to be protected by copyright. An audiovisual work that is merely copied from another source is not copyrightable. An audiovisual work must contain a sufficient amount of creative expression in the form of a series of related images.

An audiovisual work must contain creative human authorship. An audiovisual work created through a purely mechanical process, or generated solely by preexisting software is not copyrightable.

An audiovisual work is considered a derivative work if it recasts, transforms, or adapts one or more preexisting works. The preexisting material may or may not be audiovisual material. For example, a videogame may be based on a motion picture or a graphic novel.

The author of the derivative work must have permission to use the preexisting material if that material is protected by copyright, and the author must contribute a sufficient amount of new original authorship in order to register the new work as a derivative work.