Rights in performances

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A specific addition to copyright law has been the protection of performers rights and rights in performances.

A performance is a live act and accordingly no property right can subsist in the performance itself, only in a fixation of that performance, yet the performer enjoys certain rights in the ether of his work, whether it is recorded or not (e.g. the right to authorise the broadcasting of his live performance). The essential nature of copyright, on the other hand, is inherently proprietary since it must be recorded to subsist at all. Bainbridge (1999) gives the example of a soprano giving a live performance of a Mozart aria which is recorded by a member of the public. The music and lyrics are ‘out of copyright’ (the duration of protection having expired). Under copyright law there is nothing to prevent the sale of recordings made by the member of the audience to the public. In fact the member of the public actually owns the sound recordings. Until recent legislation The soprano had no protection at civil law.

Early legislation (eg the (Dramatic and Performers Protection Acts of 1925, 1958, 1963 and 1972 provided criminal remedies in respect of making recordings without consent. But this gave no remedy for the performer themselves. It was not until the Rome Convention in 1961 that the interests of performers (and phonogram producers) took a significant step forwards. Article 7(1) of the Rome Convention required Contracting Parties to grant performers the “possibility of preventing” the broadcasting, fixation and reproduction of fixations without their consent. This was intended as a minimum standard for Member States designed to allow national laws to go further (simultaneously allowing the UK to retain its sanctions in criminal law)(Barnard). The case of Rickless –v- United Artists (which involved the estate of Peter Sellers taking action to gain recompese for a new Pink Panther film made up of 'clips' from previous films) held that the 1958 Act also gave a cause of action in civil law for damages for the infringement of a performers rights in a film (although the case has been criticised and can be contrasted to RCA –v- Pollard where(1983) the Court of Appeal held that the same civil remedy did not apply to sound recordings so whilst ‘bootlegging’ was a criminal offence it did not give rise to a civil action).

The Copyright Designs and Patents Act 1988 created two separate and distinct rights in performances – the performers right and a recording right. The rights in performances was substantially enlarged by the Copyright & Related Rights Regulations 1996 and performers were granted full property rights in their performances giving a basic protection for 50 years from the date of the performance: The legislation resulted form the EC Rental and Lending Rights Directive followed the CDPA, obliging Member States to grant performers property and non-property rights, including the exclusive rights of fixation, reproduction, broadcasting, communicating to the public and distribution, as well as rental and lending rights. This was, as said, implemented by the UK in 1996 when the Copyright and Related Rights Regulations 1996 (SI 1996/2967)came into force. In October 2003, UK performers were given an exclusive right to authorise a person to make available to the public a recording of his performance by electronic transmission in such a way that members of the public may access the recording from a place and at a time individually chosen by them (the “making available” right).

see Rickless v United Artists Corp [1988] Q.B. 40

see also Experience Hendrix LLC v Purple Haze Records Ltd & Another [2005] EWHC 249 (Ch).

see also the article by Jamie Barnard on Performers Rights at www.musiclawupdates.com [1]

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