Play it again Sam: new rights for performers

Alison Patchett is a Solicitor at Arts Law

Imagine that you are a singer and you attend a meeting with a studio to discuss work opportunities.  During the meeting you are asked to sing a few lines of a song to a prerecorded tune provided by the studio so they may hear and record your voice.  You agree and at the conclusion of the meeting you leave confident that the studio will contact you shortly.

Six months later you are watching TV and hear your voice singing the tune recorded at the studio on an advertisement.  You are outraged and want to know what you can do about it?

Unfortunately a similar thing happened to a caller at Arts Law.

Is there an agreement?

When the singer contacted Arts Law the first question we asked was: "Do you have a contract with the studio?" We ask this because a signed agreement is the simplest way to define people's obligations and is also the only way that some rights such as copyright can be assigned to someone else. In this situation, there was no agreement.

Which types of performers have legal rights?

The types of performances that attract some performer's rights are dramatic and musical works, dances, readings, recitations or deliveries of literary works, performances of a circus or variety act and expressions of folklore. Some activities like the delivery of the news and playing a sport are not performances and attract no performer's rights.

As explained below the extent of performer's rights depends on whether they contribute actual noise to a sound recording or not.

What are the new rights given to performers?

There are recent amendments to the rights of performers in the Copyright Act. These amendments are a result of the Free Trade Agreement between Australia and the USA.

The new rights only extend to sound recordings so that performers who do not contribute to the noise of a performance (for example a dancer) or that have their audio-visual performances recorded (such as an actor in a play) do not attain the new rights. However, there is special provision for Conductors, who will be considered a performer for the purpose of a sound recording.

Joint copyright in sound recording

The new provisions came into effect on 1 January 2005.  They make performers co-owners (with the prior copyright owner) in sound recordings of their live performances.

In effect this means that for new and existing sound recordings the artists on the record jointly own copyright in the sound recording usually with the record company. By way of example if three members of a band record an album where the record company pays for the recording, each member and the company will own a quarter share in the copyright.

This may be altered by agreement and record companies are likely to require artists to assign their copyright to them, in effect negating the new provisions.

Unless agreed to the contrary, as the co-owner of copyright in the sound recording performers now have an equal share in the exclusive rights to:

  • copy the sound recording;
  • cause the recording to be heard in public;
  • communicate the recording to the public for example over the internet; and
  • enter into a commercial rental arrangement in respect of the recording. 

For recordings made after 1 January 2005 the co-owners in the copyright of the sound recording must obtain each other's consent before doing anything with the recording.

 There are however, some circumstances where performers do not acquire copyright in the sound recording of their performance, for example when the performer is an employee such as an employed member of an orchestra or where the performer is commissioned.  There are also some exclusions to the entitlements of performers restricting their right to remuneration under statutory licenses for educational uses or for the retransmission of broadcasts.

Moral rights

There are new provisions of the Copyright Act, that are yet to commence operating, that will give performers moral rights in the sound recordings of their live performances. Once introduced, performers will have the right to be attributed as the performer, the right against false attribution and the right of integrity.

We expect that these new moral rights will have little impact on recording arrangements as performers are already identified by their name or band name on recordings.

Do the performer's rights that existed before 1 January 2005 continue?

Performers retain the rights they had before 1 January 2005. This means that a performer's permission must still be acquired before a recording or broadcast of their live performance is made.

This requirement applies to sound recordings as well as visual or audio-visual recordings, thus more performers' have the right of authorisation than the new right to co-ownership of copyright.

Once a performer consents to the recording or broadcast of their performance, they lose control over the subsequent use of that recording or broadcast (except if the recording is to be used on a soundtrack).  A performer can usually only prevent the making of or use of an unauthorised recording or broadcast. Even this right is limited, as some recordings, for example those made for reporting the news, do not require the performer's permission provided they are used in that context alone.

What other protection is available?

As a performer you may own copyright in the works that constitute the performance.   For example if you are performing lyrics or a play written by you or music composed by you then you will own copyright in the underlying work the subject of any recording.

Original creators of works also own moral rights, that is the right to be attributed, the right against false attribution and the right of integrity.

How do the new provisions apply to sound recordings made before 1 January 2005?

The new provisions apply to all sound recordings still protected by copyright as at 1 January 2005.  However, for sound recordings made before 1 January 2005 the new performer's rights are unlikely to have any effect on the commercial dealings of the sound recording.

This is because the original owner does not need the performer's permission to deal with sound recordings made before 1 January 2005.  Any contract between performers and record companies will remain unchanged and even where there was no contract, the new rights are restricted so that the performers can not interfere with the rights of the pre-existing copyright owner to license the sound recordings to third parties, receive royalties and exploit the sound recording as they had expected when they engaged the performer to make the recording.

The performer will however, in some circumstances be able to stop a third party (not licensed by the original copyright owner) from infringing their rights.

What does it all mean?

In the scenario where a singer's demo was used in an advertisement, we advised the singer that as no other agreement was made, she was the co-owner of copyright in the sound recording.  Unfortunately in this circumstance the sound recording was made prior to 1 January 2005 so she could not interfere with the original copyright owner's right to license her work.

Had the moral rights provisions commenced the singer would have the right to be attributed as the performer and to prevent derogatory treatment of her work (which arguably may include using the recording on an advertisement).

The best option for the singer was to engage in informal negotiations with the studio about the recording. The lesson learnt – commit everything to a signed agreement.

Some practical tips

  • A performer's consent must be obtained before a sound recording, film or broadcast of a performance is made.
  • The new copyright rights only apply to sound recordings not audio-visual recordings.
  • Any performer on a sound recording will be a joint owner of copyright in the recording.  If you require session musicians to make a sound recording and do not want them to also jointly own copyright in the recording you should ensure they assign their copyright to you in a signed agreement.
  • Consider getting all parties involved in making a sound recording to sign an agreement outlining their rights and obligations.
  • There are usually three separate works protected by copyright in any musical recording – the copyright in the lyrics, in the melody and in the sound recording. Ensure you have the permission of all relevant copyright owners before using a sound recording.
  • To assist in collecting royalties, performers on sound recordings should consider registering as the copyright co-owner and performer with PPCA and APRA.

If you are a performer and want to use the sound recording of your performance but can't locate the other copyright owners to obtain their consent, you should call Arts Law to discuss your rights and obligations.

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