Performance rights

Performance rights

Contents

The rights of performers, musicians, singers, and actors, amongst others, and those with whom they contract to control and exploit their performance are of particular importance to the entertainment industry. The performance is an integral part of the product that is exploited.

Performance rights exist quite independently of copyright and moral rights in any works. Performers' rights are of particular importance to individuals who do not own the copyright in the works performed. The rights are contained in section 180 of the Copyright, Designs and Patents Act 1988 which provides rights for performers and those with whom they have exclusive recording contracts to require their consent for the exploitation of a performance and creates offences in relation to dealing with or using illicit recordings and certain other related acts. A performance is a dramatic performance that includes dance and mime, musical performances, readings, recitations of a literary work, performances of a variety act, or any other similar presentation. The performance in question must be a live performance by one or more individuals and there is no need for the performers to be in front of an audience or for the performance to be particularly spectacular or original.

If the performance in question is also the first fixation or recording of a new work (i.e. the first time that it is fixed in a tangible medium of expression; for example, the video recording of a dramatic performance), then the work may also qualify for copyright protection, but these rights do not extend to sportsmen, although special categories such as ice-skating may well qualify as a performance.

The protection is only given to qualifying individuals who are citizens or residents of the EC or where the performance takes place in a qualifying country (i.e. UK, member of the European Economic Community, etc.). A performer's right can be infringed if, without the consent of the performer or the exclusive licensee, a third party:

  • Makes a recording of or transmits live a qualifying performance
  • Makes, either directly or indirectly, a copy of a recorded performance
  • Exploits a recording by using it to show or play in public
  • Broadcasts it, or uses it in a cable programme service
  • Imports, possesses or deals with an illicit recording of a performance

A recording is defined as a film or sound recording which is made directly from the live performance or from a broadcast of the performance or directly or indirectly from another recording of the performance.

Exploitation

Most performers will, during the course of a professional career, sign a number of contracts. These can be of two main categories: standard terms or individual contracts.

Standard terms

The standard terms category accounts for most of the day-to-day dealings of performers and businesses. For instance, the actors' union, Equity, has negotiated standard or collective terms with the BBC relating to minimum fees and conditions of employment for its members and the Musicians' Union has reached a similar agreement. The agreements provide for the payment of a basic fee for limited transmission rights. If further exploitation of a work is proposed then repeat fees may be payable together with fees for transmission overseas and for other exploitation of the performance such as video release.

Individual contracts

Individual agreements are likely to be the subject of greater negotiations. Such agreements typically relate to longer term exclusive contracts such as for the services of a pop group or a well-known actor.

Performer's rights

Performance rights are divided into property rights and non-property rights. Property rights are those which can be transferred or sold to, and exercised by, a third party. Non-property rights are those which cannot be transferred or sold, and which can only be exercised by the performer.

Performer's property rights

A performer has three main property rights and these are:

  • A reproduction right
  • A distribution right
  • A rental and lending right

The reproduction right is infringed when someone makes a copy of a recording of the whole, or a substantial part, of a performance otherwise than for their private or domestic use.

The distribution right is infringed when a person issues to the public copies of a recording of the whole, or a substantial part, of a performance.

The rental and lending right is infringed when copies of a recording of the performance are rented or lent to the public.

Performers may sell or make gifts of all or part of their property rights by way of assignment (legal transfer), or may make gifts of their rights in their Will, in the same way that they can deal with other property.

Performers' future property rights may also be assigned and it is also possible to grant an exclusive licence of a performer's property rights. An assignment must be in writing, as must an exclusive licence.

In agreements concerning film production between a performer and a film producer, unless the agreement provides to the contrary, the performer is assumed to transfer the rental rights in their performance to the film producer. Most agreements will deal with this point explicitly.

Although the rental right may be transferred, the performer retains the right to some remuneration for the rental of the film containing their performance. This is what is known as an equitable right and the performer may not assign this right to anybody except a collecting society, nor can this right be waived. An organisation such as the Phonographic Performance Limited (PPL) may perform this function by collecting money for actors and musicians. The amount paid as equitable remuneration is to be agreed by or on behalf of the person to whom it is payable.

Performer's non-property rights

A performer also has certain non-property rights. These are the right to:

  • Consent to the recording of live performances
  • Consent to the use of the recording

Where these rights are infringed by a person who without the performer's consent, imports into the UK, possesses or deals with, illicit recordings the performer has the right to raise an action for infringement.

These non-property rights are not assignable or transmissible. However, on death of a performer, these rights may be passed by a Will. For the purposes of these non-property rights, consent may be given either directly by the performer or by a person who has an exclusive licence with the performer.

Where a commercially published sound recording of the whole, or any substantial part, of a qualifying performance is played in public or included in a broadcast or cable programme service, the performer is entitled to remuneration from the owner of the copyright in the sound recording. This is known as an equitable right and this right cannot be excluded or restricted.

The question of whether or not consent has been given is fundamental to non-property rights. A singer may agree to perform live for a promoter. If that promoter records and subsequently sells the recording of the performance without the singer's knowledge, the singer's rights will have been infringed.

Assuming that the same performance is recorded, but this time the singer has been notified in advance of an intention to record the performance and agrees either by their conduct or because there is a written agreement consenting to the arrangement, then they cannot claim that the promoter is infringing their rights.

Consent may be inferred by conduct where a recording is made with the performer's knowledge. There may also be a question of the amount of any payment to be made in return for the consent.

Rights of persons with recording rights

Prior to 1988, it was only the performers who had enforceable rights in their performances; however, the Copyright, Designs and Patents Act has created rights for those who have the benefit of exclusive recording contracts with the performers. It is therefore possible to infringe the rights of the owners of exclusive recording agreements e.g. record labels.

An exclusive recording contract is a contract between a performer and another person under which that person is entitled exclusively to make recordings of the artist's performance for commercial exploitation. Commercial exploitation means with a view to the recordings being sold or let for hire or shown or played in public.

Infringement of these rights will occur when a third party makes a recording of the licensed performance for commercial purposes; the recording is shown or played in public, broadcast or sent in a cable programme, imported into the UK other than for private or domestic use, sold or let for hire, or offered or exposed for sale.

A live broadcast is not an infringement of the rights of the person with an exclusive recording contract, although the broadcast of a recording will be an infringement of these rights. Recording rights may be assigned (legally transferred). However, a performer may exclude such a possibility in a recording contract.

Performers' rights last for 50 years from the end of the calendar year in which the performance took place or, if during that period a recording of the performance is released, 50 years from the end of the calendar year in which it is released. The principal remedies are those of injunction (or, in Scotland, interdict) and damages. Additional remedies allow an application for the delivery up (handover) of illicit copies of a performance and the seizure of illicit copies, which are exposed or otherwise immediately offered for sale or hire. Criminal remedies also exist for making or dealing in illicit recordings which include imprisonment or a fine.

It is important that any consent given by the performer covers the method of exploitation proposed for the work in question. The terms of any consent contained in a contract should be carefully considered before use is made of the performance in any new or anticipated media.

Similar considerations apply as with the construction of copyright licences. The 1988 Act provides for a number of permitted acts that may be done in relation to a performer's rights. These are similar to the permitted acts that may be done in relation to copyright works. These broadly include the following:

  • Fair dealing for the purposes of criticism or review
  • Incidental inclusion of a performance or a recording
  • Various exceptions allowing the playing, showing and recording of works including performances for educational establishments
  • Research and private study