By Alison Patchett and Melissa Beauford
As published in ART+law, September 2001
Imagine you have just performed a show or act. A television news program notified you that they were going to come and film the show for their nightly broadcast and you consented to that use. The performance went well, and highlights from your performance were on the news. Later you discover that part or all of your performance is also being used by a company in a commercial without your permission. What can you do?
Arts Law has recently had cause to revisit the question of what constitutes a performance under the Copyright Act. Previously we have advised that when Nude Night Surfers were filmed whilst participating in the Sydney Fringe Festival and the footage was subsequently incorporated into an Australian Film without their consent, they were not protected because performer's rights do not cover sporting events. Arts Law were requested to consider the case of a surfer riding a surf board with a pet rabbit. The surfer and his rabbit were filmed by a television news crew and the footage later acquired and used by other broadcasters without the surfers consent? Is the traditional light hearted closing item of a news broadcast "delivery of news" for the purpose of the Copyright Act? Is the act of surfing in this case a sporting event or a performance under the Copyright Act? And if so, what protection is extended to the surfer and the lucky rabbit.
If you are a performer of any kind, you should become familiar with your rights as a performer which are protected under the Copyright Act 1968 (the "Act"). The protection given is primarily aimed at ensuring performers are given fair payment for each use and recording of their work by increasing their negotiating power with those who may benefit from using the recorded performance, for example by providing in the contract for future payment for future uses upon consent being given, rather than an up-front payment.
What is a performance?
In order to gain protection under the Act there must be a performance. This includes any mode of visual or aural presentation. The Court has interpreted the intention of this section of the Act to be broad and not limited. The quality of the performance is irrelevant and includes performances of drama, music and literary works, dance, improvisations as well as "a performance of a circus act or a variety act or any similar presentation or show." The act must be a live performance given on or after 1 October 1989.
Some activities are specifically excluded from being protected as a performance under the Act. Examples include the performance of a sporting activity, delivery of news, certain educational performances and participation in a performance by an audience member. The Courts have yet to test whether an act which involves a sporting activity with an added dramatic or novelty element will be classified a sporting activity or performance under the Act, for example a surfing animal.
Who is entitled protection?
The performer must be a "qualified person". This means an Australian citizen, Australian protected person or a person resident in Australia. Foreign performers may gain protection under the Rome Convention (an international treaty dealing with copyright protection to which Australia is a party,) on the basis of reciprocity.
What is the protection given?
Performers have the right to prevent the unauthorised recording and broadcasting of their performance. If there is more than one performer, each performer's permission must be given to have an authorised use. Performers may also prevent certain dealings in unauthorised recordings of their performances such as hire, sale and distribution.
What are your rights in relation to broadcasts?
Generally, if consent was given for the recording to be used for a commercial purpose and it was then further used for another commercial purpose, the performer would have no action. That is, a performer who gives permission for a broadcasting of a performance will be taken to have licensed all subsequent broadcasts whether or not the use is by the person who obtained the consent.
What can you do?
The Act permits certain recordings of performances without the performer’s authority such as a news broadcast. Generally however, a use is unauthorised if it is made without the performer's authority in circumstances where the person knows, or ought reasonably to have known that authority had not been given. For example, it is arguable that a recording of a performance taken for the purpose of reporting the news (even if the performer authorised the recording and broadcast) in no way authorises use for commercial purposes. Subsequent use of the recorded performance arguably infringes the performers' rights. Therefore, in answer to the scenario set out above, if authority was given just to use the recorded performance in a news broadcast, but now the performance is being used in a commercial video for which the performer did not give his/her authority, the performer may be able to stop the infringer from further use and/or seek damages (financial compensation).
A performer can make a claim against the party using the unauthorised recording or broadcast. The relief that a court may grant for unauthorised use includes an injunction preventing the further use and damages.
* Alison Patchett and Melissa Beauford were solicitors at Coudert Brothers in 2001
