What are performers’ rights?
Since October 1989, performers have limited rights in their performances under the Copyright Act 1968 (Cth) (Copyright Act). From 1 January 2005, performer’s rights have been extended as a result of amendments to the Copyright Act in response to the Australia United States Free Trade Agreement (AUSFTA).
Performers' rights are now also 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.
Whether in the presence of an audience or otherwise, performers' rights apply to any of the following live performances of:
1. a dramatic work, or part of such a work, including a performance given with the use of puppets;
2. a musical work or part of a musical work;
3. a dance;
4. a circus act or a variety act or any similar presentation or show; and
5. an expression of folklore.; or
6. a reading, recitation or delivery of a literary work or part of a literary work, or the recitation or delivery of an improvised literary work.
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:
1. 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];
2. to broadcast or rebroadcast a live performance; and
3. further (knowing) distributions and uses of a recording.
Authorised recordings
Once the performer has given permission for a recording or broadcast of his/her 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 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 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:
1. the person or entity who, at the time of the recording, owns the recording medium on which the recording is made (e.g. the person who owns the tape or disc); and
2. 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, a performer providing services under an employment contract does not have a copyright interest in the sound recording; in that situation, the performer's employer owns copyright in the sound recording.
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:
1. to make a copy of the sound recording;
2. to cause the recording to be heard in public;
3. to communicate the recording to the public; and
4. 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 on Copyright Collecting Societies.
Performers’ rights in pre 1 January 2005 sound recordings
For sound recordings made before 1 January 2005, the makers (which are 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:
1. 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);
2. 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
3. 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 take action.
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:
1. the performer was performing under the terms of a contract of employment (the employer will own his/her share in the copyright in the sound recording of the live performance);
2. the sound recording was commissioned (the commissioner will own the copyright in the sound recording of the live performance); or
3. 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 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
As at 1 January 2005, performers’ moral rights in a sound recording of a live performance have not been introduced into Australian law. Performers’ moral rights in a sound recording will come into force when the WIPO Performances and Phonograms Treaty of 1996 (WPPT) comes into force in Australia. Performers (including individuals and groups) will then be entitled to the:
1. right of attribution;
2. right against false attribution; and
3. right of integrity against derogatory treatment of the performance in a way that prejudices the reputation of 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 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, the performers' permission will be required in relation to these works 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'sRelease.
Confidential information
Where a performer agrees to the recording of his/her 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 –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 his/her 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 his/her 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.
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
