You’re right — taking a photo is just like making an audio recording. But there isn’t always originality (leaving creativity aside) in a photo, just as there isn’t always originality in an audio recording. If your photo is just a copy of some other work — like taking a straight-on shot of a painting — it’s not copyrightable because you’ve added nothing. The same is true of a recording that’s just a copy of whatever was broadcast on some shorttwave station when you happened to be recording.

Isn’t Taking a Photo much the same as m,aking a recording yet you would not question the “creativity” in doing so.
Thanks John Weston for clearing up the issue and showing how really it is quite a clear cut issue.

“then the people who manufacture compilations of old recordings would have no recourse in the law to shut down people who made duplicates of their compilations for sale (piracy).”

As has been said before collections are be covered seperately from the original recording. Anyone could copy any part of the collection, but they just couldn’t copy the collection as a whole… So those people who manufacture the recordings wouldn’t go out of business.

This means that the recording that was made of the signal in question, from a shortwave radio to a cassette, was protected by copyright from the moment it was made. The owner of the copyright was the person who made the cassette recording.

This copyrighted recording was then transferred to a digital master, which was used to manufacture a CD. That master tape, and each resulting CD manufactured by the company are all protected by copyright under the same rules; that means that no one may take a copy from these physical objects without the permission of the copyright holder.

Wilco took a copy from a copyrighted CD, which has a clearly written copyright notice printed on it (not that that makes any difference to the status of the protection afforded to that disc), and incorporated it into one of their works, without permission.

Their record label, then took this infringing work, made an infringing master tape for CD manufacture, and then manufactured infringing copies from that master and then sold them to the public.

This is a clear cut case of copyright infringement. The content of the recording is irrelevant; the tape that was copied was copyrighted. This is the same protection offered to the recordings of nature sounds, or for example the Zapruder film.

If it were the case that anyone can copy from a disc without the permission of the owner of the copyright of the disc, then the people who manufacture compilations of old recordings would have no recourse in the law to shut down people who made duplicates of their compilations for sale (piracy).

You’re right that the processing might have made even the sample a copyrightable derivative of the (probably) public-domain source. But if the processing was purely technical work to make it more intelligible, there’s probably no copyrightable expression there.

Two good cases to look at on this question are Bridgeman Art Library (on the issue of what it takes to make a copyrightable derivative from a public domain source) and the recent decision in Silverstein v. Penguin Putnam (on the issue of compilation and editing as derivative works).

I know that record companies have sued over one-note samples so I’m
not surprised that WEA settled. Even if it’s not legal, it’s the way
the content industries claim copyright law works.