CAN A SOUND RECORDING OF ‘CHIRPING BIRDS’ BE COPYRIGHTED?

Lavanya Bhagra

“Kookaburra sits in the old gum tree
Merry, merry king of the bush is he
Laugh, Kookaburra! Laugh,
Kookaburra!
Gay your life must be”[1]

The creator of every creative expression steaming out of an intellectual idea, whether it is this famous nursery rhyme written by Marion Sinclair in 1932, a panting, a musical composition or just an artistic work, once it is fixed into a tangible medium of expression,holds the copyright to it.[2]According to a popular website You-Tube ‘chirping birds’ is not only a copyright protected sound recording but a musical composition itself.[3] In a random video where a man is picking up some wild vegetables for a salad, one barely hears birds chirping in the background. The video was flagged and later taken down for being a copyright infringement of a musical work(a musical composition consisting of two birds singing with background music added) owned by company called Rumblefish.[4]

The basic problem is that YouTube uses an entirely automated system to scan for copyright claims, this automated system is devised in such a way that any content posted on the website is scanned against a database of files that are already available from other content owners  who have posted any audio/video files on the website. Even a vague similarity to the database of these audios and videos collected, the website; either flags the video by sending a message to the content owner and later blocking the video, or starts to charge the content owner for the copyright infringement by simply leaving the video posted online. While these content owners can dispute the claims, any YouTube content owner or company that says the content belongs to them, can also make a counter claim.[5] This maybe a harmless glitch but it raises a serious concern, can natural sounds, like birds chirping be monopolized by a single copyright owner or do they belong in the public domain?

The music composition by late American composer John Cage is considered to be his most celebrated work, 4’33”, the 1952 score instructs a performer (or performers) to not play their instrument(s) for the entire duration of the piece.[6] The ‘music’ comes from the surrounding environment, in which the performance occurs— a creaking chair, a cough from the performers, a clap from the audience, a chirping bird, and so on. However, astounding it may sound but the piece was protected under copyright law and received royalty even from famous music composers like Frank Zappa who used the piece for his musical composition. 

Modern copyright law seems really broad today; where even silence is copyrightable material so why not birds chirping. The question here is whether a recording of birds chirping satisfies the minimum creativity test or not as laid down in Eastern Book Company and Ors.v. D.B Modak and Anr.[7]As, observed in the above case ‘facts’ cannot be copyrighted. The reason is that a work has to have a minimal level of creativity in order to qualify for copyright protection and if a work is just a repetition of facts with little or no variation lacking any creativity, it isn’t protected. This is true even if a great deal of labour and effort went into making the product, as with a phone book.[8]

Thus, if the recording of birds chirping was done without making much effort and as a mundane activity the same should not be given protection according to the minimum creativity rule. But where chirping of birds sounds are captured as using top quality microphones and hi-resolution digital recording equipment. The recordings then sweetened up a little using some clever studio mastering techniques before giving them a pat on the head, a kiss on the cheek, and then presented as CD quality audio, where microphone techniques that closely simulate the way the human ear perceives sound resulting in extremely natural, true-to-life soundscapes with great stereo imaging[9] are used can be said to have satisfied the minimum creativity test. According to Partners in Rhyme (a U.S based musical company) a sound recording of a crow, blue jay, kookaburra, sparrow etc., are common and are freely available in the public domain and do not attract any copyright infringement whereas, exotic bird sounds such as, birds singing near a water stream, single high pitched sound, bird callings, which require greater effort to be captured require royalty to be paid for their use.[10]

Thus, one cannot copyright bird songs by recording birds singing, but one can copyright the recording protecting the creativity involved in setting up the recording parameters for capturing nature’s wonder sounds.The primary objective of copyright law is not to protect the labour of the author but to promote the progress of science and useful art, to promote creativity and intellect. Every work claiming copyright should satisfy the minimum creativity test so that monopoly cannot be created on material falling under public domain and therefore, a recording of a ‘bird chirping’ mustdisplay some material with minimum creativity and should not merely be a trivial variation of the already existing.


[1] “Kookaburra” A popular nursery rhyme written by Marion Sinclair, 1932.

[2]“Copyright Nature Sounds” Intellectual Property Rights Forum, available at http://www.intelproplaw.com/ip_forum/index.php?topic=1571.0 (visited on 28.12.2016).

[3]Ibid.

[4]Ibid.

[5]Ibid.

[6]Ibid.

[7] AIR 2008 SC 809

[8]Emergent Genetics India Pvt. Ltd v. ShailenderShivam and Ors, 2011 (47) PTC 494

[9]“Nature Sound Recording Techniques” Mediation Music official website, available athttps://www.royaltyfreemeditationmusic.com/Nature_Sound_Recording.html(visited on 28.12.2016).

[10]“Birds Sounds” available at https://www.partnersinrhyme.com/soundfx/PUBLIC-DOMAIN-SOUNDS/birds.shtml (visited on 28.12.2016).

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