Rights for Performers

At the time of authoring this article, Deborah Doctor was a solicitor at Allens Arthur Robinson. Deborah has completed a 6 month, full time legal officer secondment with Arts Law.

Imagine you are a singer and you attend a meeting with a music producer at their home studio to discuss the possibility of working together in the future. During the meeting you are asked to sing a little ditty so the producer may hear and record your voice. You agree and at the end of the meeting the producer says he will be in contact with you about starting to produce your new songs.

You never hear from the music producer, he doesn't return your calls and then shortly afterwards you are watching TV and hear your voice singing the tune recorded at the producer's studio on an advertisement. You are outraged and want to know what you can do about it. In this article we consider what legal rights are granted to performers.

Performers' Rights

Performers' rights are relatively new to Australian copyright law. The amendments can be broadly summarised as follows:

• performers' rights: in 1989 performers were granted limited rights in relation to unauthorised recordings of their performances and communication of these recordings;
• co-ownership of copyright in sound recordings: in 2005 performers were recognised as co-owners of the copyright in sound recordings of their performances; and
• performers' moral rights: in 2007 performers obtained moral rights in their performances.

What follows is an explanation of the rights as at 1 September 2007. If you believe your rights have been infringed, it is important to identify when the performance was made, when the infringement occurred and to discuss the matter with your lawyer or contact Arts Law.

Types of performances that are protected by performers' rights

Performances that attract performers' rights are live performances of:

• dramatic works (including improvisations and puppet shows);
• musical works (including improvisations);
• readings, recitations, or deliveries of literary works (including improvisations);
• dances;
• circus acts, variety acts or similar shows; and
• expressions of folklore.

Specifically excluded from performers' rights are performances of:

• literary, dramatic or musical works which are performed in the course of giving or receiving educational instruction;
• readings, recitals, or delivery of news and information;
• sporting activities; or
• a member of an audience participating in a performance.

Recordings of a performance are allowed to be made without the performer's permission where they are made solely for:

• reporting the news;
• criticism or review; or
• use in a judicial proceeding or for the giving of legal advice.

Rights relating to unauthorised recordings

Performers have the right to prevent:

• unauthorised recording of their performance (by sound recording or film/video recording);
• unauthorised communication of their performance to the public by way of live broadcast or broadcast of an unauthorised recording of their performance (this includes television, radio and internet broadcasts); and
• certain dealings in unauthorised recordings of their performances such as hire, sale and distribution.

Co-ownership in sound recordings

In addition to performers' rights, performers may co-own copyright in the recording of their live performance. Where a performer contributes to a sound recording the performer will co-own the copyright in the sound recording with the other performers (including the conductor) and the person or company that owns the record on which the recording is made (usually the producer or record company).

This situation is often varied by a written agreement or by the circumstances in which the recording was created. If a sound recording is commissioned by a record company or an artist (by paying for the tapes, the producer and the studio time), then the commissioner owns all copyright in the sound recording. If the performer is performing under the terms of a contract of employment then the employer will own the employee's share in the copyright in the sound recording. If the performer is a member of a union then certain industry agreements may be binding and may change the performer's entitlements.

Performers who do not contribute to the noise of a performance (for example a dancer) or who have their performances filmed or videoed (such as an actor in a play) do not attain co-ownership of the copyright in that recording.

What rights do I have if I co-own the copyright in the sound recording?

When a performer is a co-owner of copyright in the sound recording, the performer has an equal share in the exclusive rights to:

• make a copy of the sound recording;
• cause the recording to be heard in public;
• communicate the recording to the public (that is, to broadcast it or put it online); and
• enter into a commercial rental arrangement in respect of the recording.

Performers' Moral Rights

Performers' moral rights were introduced as part of Australia's obligations under the Australia-US Free Trade Agreement but did not take effect until 26 July 2007 when the WIPO Performances and Phonograms Treaty came into force in Australia. 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 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 only so far as the performance consists of sounds. This means that a dancer would not get moral rights protection, unless perhaps they were a tap dancer and therefore contributing to the sounds of the performance. Moral rights belong to each person who contributed to the sounds of a performance, including the conductor of a musical work.

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 if the act or omission was 'reasonable' in the circumstances.

There are a number of factors to be considered when assessing reasonableness, including:

• the nature of the performance;
• the purpose, manner and context in which the performance is used;
• industry practice; and
• the difficulty or expense that would be incurred as a result of identifying the performer.

In the case of performers performing under a group name, identification by using the group name is sufficient to identify each of the performers in the group.

Duration of the rights

The duration of the various rights vary depending on the precise right a performer is seeking to assert. The right to control the recording, distribution and copying of the recording lasts for 50 years from the date of the performance.  The right to control the communication of the recording to the public through a broadcast or inclusion in a soundtrack lasts for 20 years from the date of the performance. The performer's co-ownership in the copyright in the sound recording lasts for the duration of copyright protection for the recording, which is 70 years from the date the recording is first published.

For moral rights protection, the right of attribution and right against false attribution for a sound recording continue in force for the duration of copyright in the sound recording. A performer's right of integrity in respect of the sound recording continues until the performer dies.

So what does it all mean?

Let's go back to the scenario where a singer's demo is used without permission in a TV advertisement. If no agreement to the contrary has been made then the singer is the co-owner of copyright in the sound recording. The singer could send a “cease and desist” letter to the producer to make it clear that he was infringing her copyright in the sound recording since in the circumstances there is no implied licence that the recording can be used for the advertisement. The singer also has the right to be attributed as the performer and to prevent derogatory treatment of her performance (which arguably may include using the recording on an advertisement).

Arts Law(www.artslaw.com.au) has sample cease and desist letters for copyright infringement and moral rights infringement.

Another consequence of these new moral rights provisions is that in future performers may be asked by broadcasters, record companies and employers to sign consent clauses by which the performer consents to all or any acts or omissions which would otherwise be moral rights infringements.  The law allows performers to give broad consents to moral rights infringement whereas for creators of literary, dramatic, musical and artistic works a moral rights infringement consent clause will not be effective unless it is in relation to specified acts or omissions or specified classes or types of acts or omissions and in relation to specified works.  If you are a performer and are presented with a contract which contains a moral rights clause you should think carefully about whether you are willing to give such a consent. If you are not sure what the clause means or what you are actually consenting to, you should contact a lawyer or Arts Law for legal advice.

More about Performers' Moral Rights

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; and
• 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; and
• communicating the recorded performance to the public.

A performer may be identified by any reasonable form of identification. Where the performer has requested that he or she wishes to be identified in a particular way then, provided the request is reasonable, 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. This means that if a band is doing a performance at a music festival, the presenter only needs to state the name of the band and not the individual names of the band members in order to satisfy the right of attribution.

Right against false attribution

Acts of false attribution done before, during or after live performances include where a stager (or person authorised) 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. Under the new provisions, it is specified that if the stager of a live performance given by X and Y attributes the performance to X and A then this will be an act of false attribution in relation to both X and Y (even though X is mentioned in the attribution).

For a sound recording of a live performance (or a copy of that recording) it is an act of false attribution to insert or affix (or authorise the insertion or affixing of) a person's name on the recording 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 recording 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 of integrity 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. An example of a potential moral rights infringement would be making a very poor quality recording of a musical performance and then playing that performance on the radio.