PERFORMERS’ RIGHTS
What are Performers’ Rights?
Since October 1989, performers have been given limited rights in their performances under the Australian Copyright Act. From 1 January 2005, performers’ rights have been extended as a result of amendments to the Copyright Act in response to the Australia United States Free Trade Agreement (AUSFTA).
New performers' rights are given to performers in relation to any live performance in Australia by an Australian citizen or resident (and to foreign performers in certain circumstances). For these rights, a performer is each person who contributed to the sounds or action in the performance, plus the conductor of the performance.
Performers' rights apply to any of the following live performances whether in the presence of an audience or otherwise:
i. a performance (including an improvisation) of a dramatic work, or part of such a work, including a performance given with the use of puppets;
ii. a performance (including an improvisation) of a musical work or part of a musical work;
iii. the reading, recitation or delivery of a literary work or part of a literary work, or the recitation or delivery of an improvised literary work;
iv. a performance of a dance;
v. a performance of a circus act or a variety act or any similar presentation or show; and
vi. a performance of an expression of folklore.
If you are engaging performers and you think the performance may fall within one of these categories, you should either obtain the necessary release from the performer or you should seek further legal advice from Arts Law as to whether such a release is necessary.
If the performance in question does not fall into any of these categories, the performer has no performers' rights in that performance. It should be noted that certain performances do not attract performers’ rights, such as performances by teachers and students in class, reading news and information, performing sporting activities, participation by members of an audience and certain performances by teachers and students in the course of educational instruction.
What permission must be obtained from performers?
The performer's permission is required for the following:
i. to record the performance by sound recording or film (whether directly from a live performance or indirectly from a broadcast or cable transmission) [see notes below on authorised recordings];
ii. to broadcast or rebroadcast a live performance; and
iii. further (knowing) distributions and uses of a recording.
Authorised Recordings
Once the performer has given permission for a recording or broadcast of their performance to be made, the performer generally has no further rights in relation to that recording and cannot prevent its use (including copying, broadcasting, transmission or other use) unless an express limitation on its use has been made by the performer at the time it was recorded or it is a sound recording (not audio-visual) of the performance (discussed below). This is also subject to any contract to the contrary or the terms of any award, discussed below.
There is, however, an exception to this. Performers have an additional right to say whether or not an authorised recording of their performance can be used as a soundtrack for a film (which would include any soundtrack with moving visual images). If you want to use a recording of a performance as a soundtrack for a film you must obtain the performer’s consent.
Exempt Recordings
Permission from the performer is not required in relation to "exempt" recordings. “Exempt” recordings include certain recordings for domestic use, scientific research, and educational purposes and for use by handicapped readers or institutions assisting them. Further, recordings may be made and used for reporting news or current affairs, criticism or review or for the purpose of judicial proceedings or legal advice.
Copyright in the Sound Recording of a Live Performance
From 1 January 2005, the Copyright Act (as amended by US Free Trade Agreement Implementation Act 2004 (USFTAI Act) and the Copyright Legislation Amendment Act 2004) extended performers’ rights and established performers as ‘makers’ of sound recordings of their live performances. Under the Copyright Act, in some circumstances, a maker of a sound recording is the owner of copyright in the sound recording. The new performers’ provisions mean that from 1 January 2005 a “maker” of a sound recording is both:
i. the person or entity who, at the time of the recording, owns the recording medium on which the recording is made (eg. the person who owns the tape or disc); and
ii. the performer or performers who contributed sounds to the performance fixed in the sound recording.
However, this situation does not apply if a sound recording is commissioned. If a sound recording is commissioned by a record company or an artist, then the commissioner owns all copyright in the sound recording. So, if you commission a sound recording by paying for the tapes, the producer or sound engineer and the studio time, you will be the only owner of the copyright in the sound recording. The performers will not receive a copyright interest. Similarly, if you have a recording deal, and the record company pays for a production studio to produce a master recording, the recording company owns all copyright in the sound recording.
On the other hand, if you do not commission the sound recording but pay for the tapes up front, you and the other performers will be the ‘makers’ and therefore owners of the copyright in the sound recordings. However, you should note that a performer providing services under an employment contract does not have a copyright interest in the sound recording – their employer retains the copyright.
It is important to remember that this extension of performers’ rights only applies to audio recordings, not to audio-visual recordings (like film or video), so the rights will generally not be available for dancers unless, perhaps, they are tap dancers!
When a performer is a co-owner of copyright in the sound recording, the performer now has an equal share in the exclusive rights:
i. to make a copy of the sound recording;
ii. to cause the recording to be heard in public;
iii. to communicate the recording to the public; and
iv. to enter into a commercial rental arrangement in respect of the recording.
To ensure that a performer receives equitable remuneration for the making of broadcasts of the new sound recording and for the public performance of the sound recording, performers should register as the copyright co-owner with the collecting society, Phonographic Performance Company of Australia (PPCA). Performers should also consider whether they should register with the Australasian Performing Rights Association (APRA). For further information see Arts Law's Information Sheet Collecting Societies.
Performers’ rights in pre 1 January 2005 sound recordings
For sound recordings made before 1 January 2005, the makers (which is likely to be the record company as a commissioner, or the record company/producer and the performer(s)) now own the sound recording in equal shares (50% each).
However, the new rights of performers in pre-existing sound recordings are very limited:
i. the owner of copyright immediately before that date will be able to go on exploiting the copyright as they expected to do when contracting the performers to make the recording (for example, when the record company and the band entered into a recording agreement);
ii. the performers will not be able to stop the original copyright owner, that is prior to 1 January 2005, from licensing the use of the sound recording to third parties; and
iii. the performers will not be able to sue for damages, recover infringing copies or receive remuneration for the use of the recording under statutory licences, or for the retransmission of broadcasts.
However, performers will be able to take action to stop the making, distribution or importation of pirated copies of their recording where the original owner of the copyright was not able to.
Exceptions
There are exceptions to the new extension of performers’ rights. A performer will not be a maker, and therefore not be a co-owner or an owner of an equal share in the sound recording of a live performance if:
i. the performer was performing under the terms of a contract of employment (the employer will own their share in the copyright in the sound recording of the live performance);
ii. the sound recording was commissioned (the commissioner will own the copyright in the sound recording of the live performance); or
iii. the written agreement signed by the performer states otherwise,. For example if, under a recording agreement, the performer assigns all rights in the performance of any kind to the publisher or record company, this agreement will continue to have effect. The performer’s ownership of the copyright in the sound recording is assignable, which means it can be given away or sold to someone, provided the assignment is in writing. It is also important to remember that if a performer consents to the recording of a performance for a particular purpose, then it is implied that they have given consent to the use of the recording for that particular purpose.
What happens if one performer cannot locate another performer?
Where there are two or more owners of the copyright in a sound recording of a live performance and one or some of them want to use the performance for another purpose but cannot, find the other owners, the Copyright Act now allows these owners to use the sound recording without the permission of the untraceable owner or owners provided that they have made ‘reasonable inquiries’ to identify and locate the other owners. In these circumstances the copyright owners using the performance must hold the relevant share of proceeds from the further exploitation on trust for the untraceable owner for four years in case they are located. If you find yourself in this situation then you should seek further legal advice from Arts Law.
Performers’ moral rights
Performers’ moral rights came into force in Australia on 26 July 2007. Under the new moral rights provisions, a performer in a live performance (so far as the performance consists of sounds) or a sound recording of a live performance (or a copy of that recording) has the:
• right of attribution;
• right against false attribution; and
• right of integrity against derogatory treatment of the performance in a way that prejudices the reputation of the performer.
The rights apply to the types of performances listed above under the heading “What are Performers’ Rights?” but only so far as a performance consists of sounds. Moral rights belong to each person who contributed to the sounds of a performance, including the conductor of musical work.
Right of Attribution
The performer’s right is the right to be attributed as the performer if any of the attributable acts are done in respect of the performance.
The attributable acts for a live performance are the following:
• Communicating the live performance to the public – i.e. broadcasting on the radio or putting it online;
• Staging the live performance in public.
The attributable acts for a sound recording of a live performance are the following:
• Making a copy of the sound recording;
• Communicating the recorded performance to the public.
A performer may be identified by any reasonable form of identification unless the performer has made known that the performer wishes to be identified in a particular way (and the identification of the performer in that way is reasonable in the circumstances) the identification is to be made in that way.
If a performance is presented by performers who use a group name, then identification by using the group name is sufficient identification of the performers in the group.
Right against false attribution
Acts of false attribution done before, during or after live performances include where a stager (or person authorized) falsely states or falsely implies to an audience or prospective audience that a person is or will be the performer or the performance is being or was being presented by a particular group of performers.
An act of false attribution only applies if the performance is in public or is communicated to the public.
For a sound recording of a live performance (or a copy record) it is an act of false attribution to insert or affix (or authorize the insertion or affixing of) a person’s name on the record in such a way as to imply falsely that the person is a performer in the performance. Further it is an act of false attribution to deal with such a record or communicate the performance to the public if the attributor (person doing the dealing or communicating) knows that the person is not a performer of the performance.
Right of integrity
The performer’s right is the right not to have the performance subjected to derogatory treatment, which is defined to mean the doing, in relation to a live performance or a sound recording of a live performance (or copy of that recording) anything that results in a material distortion or alteration of, or the mutilation of the performance that is prejudicial to the performer’s reputation.
Duration of Moral Rights for recorded performances
A performer’s right of attribution and right against false attribution for a sound recording continue in force until copyright ceases to subsist in the sound recording (year first published + 70 years). A performer’s right of integrity in respect of the sound recording of the performance continues until the performer dies.
Defences to infringement
A failure to attribute a performer, false attribution of a performer, or derogatory treatment of a performance, does not infringe the performer’s moral rights if the performer consented (in writing) to the act or omission (or to all or any acts or omissions) or the act or omission was “reasonable’ in the circumstances.
There are a number of factors to be considered when assessing reasonableness, these include:
• The nature of the performance
• The purpose, manner, context in which the performance is used
• Industry practice
• The difficulty or expense that would be incurred as a result of identifying the performer
Other restrictions on the use of performances
Contracts and Awards
We have set out above the limited rights given to performers in the Copyright Act.
Performers may, however, have the right to control the use of their performances under contractual arrangements between themselves and the person making use of the performance or under the provisions in an industrial award. You should check the terms of any applicable contract or award before making use of the performance. For further information on performances affected by award provisions, contact the Media Entertainment and Arts Alliance (MEAA) or the Musicians Union in your State/Territory.
Copyright
If the performance involves the performance of an original literary, dramatic or musical work which the performer has created (which could include an improvised literary, dramatic or musical work), the performer may also be entitled to copyright in the underlying work of the performance. If so, their permission in relation to these works will be required before the performance can be reproduced, published, performed in public, communicated to the public or adapted, in addition to the release of the other performers' rights. If the performance is an interview or other performance over which the performer wishes to retain control,, the parties should consider provisions dealing with editing, other alteration or adaptation. An example of a release for these circumstances is set out in the Arts Law's sample Interviewee's Release.
Confidential information
Where a performer agrees to the recording of their performance but makes it known that the performance is confidential and cannot be used or disclosed without the performer's permission, any unauthorised use of that performance may entitle the performer to bring an action for breach of confidence. For further information see Arts Law's Information Sheet Protecting Your Ideas – The Law of Confidential Information.
Protection of names and reputation
Any use of a performance in such a way as to suggest that the performer is endorsing or affiliated with any product or service, in a way that is not authorised by the performer, may entitle the performer to bring an action to restrain use of their performance under the law of passing off and trade practices legislation. For further information see Arts Law’s Information Sheet Unauthorised Use of Your Image.
Defamation
Any use of a performance in a way that damages the reputation of the performer may entitle the performer to bring an action in defamation. For example, it could be defamatory to use a performance in a way that is not authorised by the performer and wrongly implies that the performer has given their consent or, alternatively, in a way that juxtaposes the performance with other material in such a way as to impute false or demeaning attributes to the performer. If the performance is defamatory of some other person or organisation, an action may be brought not only against the performer but also the producer or distributor of that performance. Material may be defamatory if it lowers the reputation of the performer or exposes them to hatred, ridicule or contempt. It should be noted that truth is not always a defence, so if the use of the performance may be defamatory, legal advice should be sought. See also Arts Law's Information Sheet Defamation.
Need more help?
If you have questions about Performers’ Rights or want a Performer’s Release document reviewed contact Arts Law.
Telephone: (02) 9356 2566 or tollfree outside Sydney 1800 221 457
Additional information may be obtained from:
Media Entertainment Arts Alliance (MEAA) www.alliance.org.au, ph: (02) 9333 0999
Musicians Union www.musicians.asn.au, ph: (03) 9388 8992
© 2005 Arts Law Centre of Australia
You may photocopy this information sheet for a non-profit purpose, provided you copy all of it, and you do not alter it in any way. Check you have the most recent version by contacting us on (02) 9356 2566 or tollfree outside Sydney on 1800 221 457.
The Arts Law Centre of Australia has been assisted by the Commonwealth Government through the Australia Council, its arts funding and advisory body.
