by Jamie Barnard
Media, Brands and Technology Lawyer, Lewis Silkin Solicitors
Although it took many years to achieve, performers of music have finally been given rights equivalent to those conferred on authors and other copyright owners.
Rights of the intellect (avoiding reference to intellectual property for reasons that will become clear) are theoretical until the moment they can be exploited. In other words, a poem rehearsed a thousand times in Shakespeare’s mind would have no more protection in law than a spectacular soliloquy to an empty room. In the days before performances could be captured in acoustic or visual recordings, or indeed broadcast live, rights in a performance could vest in no one but the performer. Without the ability to “fix” a performance, exploitation was impossible without the performer’s consent. However, as soon as a performance could be fixed, it could be exploited by others, and the performer’s autonomy was no longer guaranteed.
The synopsis at the head of this essay contains a subtle truth which should be acknowledged before performers’ rights are considered further. In society, rights exist on two levels: philosophically and legally. Whilst we may feel socially and intellectually entitled to certain rights, the actual rights we possess are those recognised by the state, and conferred on us accordingly. Injustice (or at least perceived injustice) arises when the latter does not reflect the former. In the context of this essay, therefore, a performer has only those rights that he has been given by the state.
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 (for example, the right to authorise the broadcasting of the live performance). The essential nature of copyright, on the other hand, is inherently proprietary, since it must be recorded to subsist at all.1 However, when a piece of music is recorded, the rights in the performance become inextricably linked with any literary or musical copyrights in that music – to exploit the sound recording is to exploit both the performance and the respective copyrights simultaneously. Therefore, unless one takes the view that a performance is undeserving of protection, it would seem unreasonable if the copyright owner and the performer were not granted at least very similar rights.
There can be no doubt that the rights enjoyed by performers today have been many years in the making. Although copyright reached adulthood relatively early, performers’ rights have only really come of age during the last decade. The legal developments that brought about these changes have come to fruition at a time when performers are enjoying unprecedented levels of cultural significance. In many cases, the mega-celebrity of certain pop idols reflects their talent as performers more than the quality of the copyright works they perform. However, although performers and copyright owners now enjoy very similar rights in the UK, they are certainly not yet equals, legally or culturally.
The earliest remedy available to performers was to prosecute those who made and sold illicit recordings of their performance, in the criminal courts. However, as there was no means to prevent infringement by way of injunction (a civil right) and little incentive to take action in the courts (since the performer would not profit from any fines imposed on convicted felons), this right – first recognised in the Dramatic and Musical Performers’ Protection Act 1925 – was of limited practical value.
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).2
The exclusive rights to authorise and prohibit the fixation and broadcasting of performances (rights granted to phonogram producers and broadcasters under the Rome Convention) were not granted to UK performers until the passing of the Copyright, Designs and Patents Act 1988 (the “CDPA”). The CDPA also ‘rubber-stamped’ performers’ statutory civil rights of action to prevent the unauthorised exploitation of their performances (reversing the Court of Appeal’s ruling in RCA v Pollard 3 and affirming its ruling in the infamous Peter Sellers case4).
The EC Rental and Lending Rights Directive5 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. However, this was not implemented by the UK until 1996, when the Copyright and Related Rights Regulations 1996 (SI 1996/2967) (the “Copyright Regulations”) came into force. Finally, 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).6
As a live performance is intrinsically different to a physical copyright work, it is misleading to assess the balance between copyright owners and performers by comparing the type of rights they each enjoy. Non-property rights – such as the exclusive right to authorise the recording of a live broadcast – cannot and do not apply to copyright. Therefore, when considering whether performers of music have equivalent rights to authors and copyright owners, one must appreciate that although they are similar, they are not the same.
However, the legacy of the historical changes summarised above, is that the property rights conferred on a performer in relation to a recording of a live performance are now very similar to those conferred on copyright owners, and the drafting of such rights in Part I and Part II of the CDPA is virtually identical. In both cases, the restricted acts apply to the whole or a substantial part of the copyright work or the performance and only if the qualification requirements are met (as set out in Part I Chapter IX and section 206 respectively).7 Sections 16 and 182 of the CDPA state that the rights of a copyright owner and performer respectively will be infringed by a person who, without their consent, copies the work or the recording (the reproduction right), issues copies to the public (the distribution right), rents or lends copies to the public (the rental and lending rights), and/or makes the work or the recording available to the public (the making available right, as described above).
Furthermore, following the implementation of the EC Rental and Lending Rights Directive and the EC Information Society Directive,8 the remedies for infringement of performers’ property rights (damages, injunctions, accounts of profits, delivery up and seizure, for example) effectively mirror those set out in Chapter VI of the CDPA protecting copyright works (with the exception of moral rights, as discussed below). This homogeneity also pervades the performer’s ability to assign and/or exclusively licence his property rights, giving the exclusive licensee a concurrent right of action.9
However, despite such apparent similarities, it is in relation to these property rights that discrepancies arise between the performer and the copyright owner; controlling the right to authorise the making of a recording from a live performance, or from a broadcast of a live performance, is of limited value if you can’t control how that recording is then exploited. The person who makes a recording of a qualifying performance with the consent of the performer (irrespective of whether this is under a straightforward licence or an exclusive recording contract) will control any subsequent commercial exploitation of that sound recording (for instance, if and how that recording is performed in, or communicated to, the public).
It is this lack of autonomy over the secondary use of legitimate sound recordings that makes the performer play second fiddle to the copyright owner. Clearly, further consent will be required to make, distribute, rent or lend copies of that recording to the public; but, once again, should such consent be granted, the performer will lose control over how those rights are then exploited.
It is important to note that showing or playing a performance in public, or otherwise communicating it to the public, by means of a recording which was, and which the relevant person knows or has reason to believe was, made without the performer’s consent, will infringe the performer’s non-property rights (sections 183(a) and (b)). In such cases, the performer (as opposed to the phonogram producer) will have a right of action to prevent or restrict the commercial broadcasting or the playing of that recording in public.
While performers may not be able to control such secondary exploitation, they are at least guaranteed income from it. Part II of the CDPA was amended to implement the Copyright Regulations, giving performers a right to equitable remuneration for the public performance or the communication to the public of a commercially published sound recording of their performance (otherwise than by “making it available”). The reality for performers, therefore, is that while the owner of an authorised sound recording may exploit it as the owner wishes (including the performance embedded within it), the performers’ only right in relation to that recording is to receive equitable remuneration.10
This divergence between the rights of the performer and the copyright owner appears to merge momentarily when one considers the omnipresent recording contract. In theory, the owner of copyright in a musical work that is performed and recorded, may still control any secondary use of the sound recording, including how and when it is played in public and/or otherwise communicated to the public. However, a copyright owner who enters into an exclusive recording contract will have his rights fettered, much like the performer.
In the music industry, most composers, lyricists and performers (including those who are both performers and songwriters) strive to be signed to a record company. Those who are “fortunate” enough to do so, will inevitably sign an exclusive recording contract, sacrificing much of their autonomy in the hope of success and prosperity. The copyright owner will grant the record company an exclusive licence to exploit the works he or she produces during the term of the agreement and the performer will grant the record company the exclusive right to make recordings of their performances with a view to their commercial exploitation.
In exchange for handing over the reins, they will each be entitled to remuneration. The performer may be paid an advance from the record company and, if and when he is recouped, royalties from record sales. Although the UK performer may be entitled to equitable remuneration and a further right to remuneration where he transfers his rental right in a film or a sound recording to its producer, the record company will usually insist that his royalties include such remuneration. If this is the case, he may only receive additional equitable remuneration from any public performance, etc., of a sound recording of his performance elsewhere in the EU (assuming he is registered with the PPL or an equivalent collecting society). However, let’s not forget that a successful performer is also likely to receive income from touring and merchandising, which may be substantial, particularly for global “‘superstars”.
By contrast, the songwriter will be entitled to remuneration in respect of the mechanical copying of the sound recordings (i.e., its reproduction) as well as royalties from the public performance of his copyright work. This dual income commands higher royalty percentages that generally outweigh the remuneration paid to the performer, although clearly there are exceptions (not least when we consider the merchandising opportunities noted above).
In other significant ways, our performers draw a shorter straw than their creative opposites. There are practical disadvantages to consider, even though they do not concern “rights” as such. The performer’s rights are tied to specific sound recordings, whereas the rights of the songwriter exist whenever the song is reproduced or played in public, irrespective of who performs it at the material time.
The principal difference is that a live performance is not infringed by its being copied or imitated. There is therefore no copy right and even flagrant plagiarism may not be unlawful (unless an action can be brought under the tort of passing off). However, whilst this may be a weakness in the performer’s armoury, it appears to be a product of its own design. The law recognises a performance as an act, not a thing of property, and copying the act itself (like an idea) is not an infringement.
Although significant progress has been made since the Rome Convention, the lifespan of performers’ rights is still shorter than that of authors and copyright owners. However, the divergence in rights has narrowed over the last forty years, particularly with the implementation of the EC Term Directive by the Duration of Copyright and Rights in Performances Regulations 1995.11 The rights of performers who are nationals of an EEA state12 now subsist for an initial term of 50 years from the end of the year in which the performance took place, or, if during that term a recording of that performance is released (i.e., published or played in public, etc.), the rights will subsist for a further 50 years from the end of the year in which it was released.13 When one considers that copyright enjoys the author’s life plus 70 years, and so could feasibly subsist for 140 years, while a performer’s right will, at best, subsist for little more than a century, there is a notable imbalance.
The issue of performers’ moral rights requires only a brief mention here, since there is strong reason to suppose that the position will change in their favour in the not-too-distant future. Although UK performers do not currently enjoy any form of moral rights, the advent of the WIPO Performances and Phonograms Treaty (the “WPPT”) and the UK’s efforts towards ratifying it have made performers’ moral rights a virtual certainty. The principal aim of the WPPT is to give performers an inalienable right to be identified as the performer (the equivalent to the author’s paternity right) and the right to object to any distortion, mutilation or other modification of his performance (akin to the right of integrity). However, at present this is only proposed in relation to sound recordings, to the exclusion of performances in audiovisual recordings (films and music videos, for example). Unfortunately, as the UKintends to ratify the Treaty by way of secondary legislation, it appears that this “carve-out” will remain until such time as primary legislation is passed, despite the continued efforts of WIPO.
The fact that performers’ non-property rights cannot be assigned (albeit that they are transmissible on death) puts the performer and his heirs at further disadvantage. This position is exacerbated by the fact that the performer only has actionable rights as a breach of statutory duty. Consequently, the performer is not able to seek an account of profits for infringement of such rights.
When one considers the similarities between the rights conferred on copyright owners and those on performers, it is difficult to rationalise why the right to authorise the recording of a live performance (i.e., a non-property right) should be treated any differently from the right to authorise the distribution of copies of that sound recording. The CDPA would be greatly simplified if this arbitrary distinction between property and non-property rights was removed and the alienated performers’ rights brought under the wing of Part I of the CDPA. Simultaneous amendments could harmonise the remedies available to performers and confer on them full rights of assignment in respect of their non-property rights.
Clearly, for the sake of the performer, while he has a right to equitable remuneration, that right (like moral rights) should not be capable of assignment. However, if the law were to abandon equitable remuneration in favour of granting the performer an exclusive right to authorise the public performance and the communication to the public of authorised sound recordings (and, by rights, films), it would bring him justifiably closer still to songwriters.
If one takes a panoramic view of the performer and the copyright owner, they are subject to “very similar provisions as to subsistence, infringement, remedies for infringement and, to a lesser extent, ownership”,14 and they appear to enjoy equivalent rights. Upon closer inspection, however, the discrepancies are apparent. At the very least, until performers have the ability to control the secondary exploitation of authorised sound recordings and films of their performance, the playing field will slope unmistakably in favour of the songwriter.
It is from this perspective that our conclusion must be decanted: performers almost have rights equivalent to those conferred on authors and copyright owners. Fortunately, the differences that remain are reconcilable, and are largely historical, reflecting the staggered progress performers have made during the last century. As copyright and performers’ rights continue to assimilate, the support for further harmonisation gathers pace, and change looks ever more probable.
As the UK’s Labour Government embarks on its third term, it may be a prudent time to lobby for further amendments to the CDPA, ingesting performers’ rights into copyright law, acknowledging their moral rights, losing the dichotomy between property and non-property rights, and harmonising remedies and rights of assignment simultaneously. Unfortunately, until such a balance is struck, performers’ will be denied the luxury of equivalence, and will remain the poorer neighbours.
1 Section 3(2) of the Copyright Designs and Patents Act 188 states that copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise.
2 Masouyé and Wallace, WIPO Guide to the Rome Convention (WIPO, 1981).
3  Ch. 135.
4 Rickless v United Artists Corp  Q.B. 40. In this case, the use of out-takes and other clips featuring Peter Sellers (filmed during his lifetime) were used to make a further Pink Panther film after his death. His personal representatives successfully argued that he should have a right to prevent the unauthorised use of his performances in this way. More recently, the unauthorised release of a CD featuring The Jimi Hendrix Experience playing live in Stockholm in 1969 was held to infringe the late Jimi Hendrix’s performance – see Experience Hendrix LLC v Purple Haze Records Ltd & Another  EWHC 249 (Ch).
5 Council Directive 92/100.
6 Section 182CA of the CDPA was inserted by the Copyright and Related Rights Regulations 2003, which gave effect to the requirements set out in the Information Society Directive 2001/29.
7 Put simply, a copyright work and a performance will qualify for protection if the author or performer was a qualifying individual at the material time or the work or performance was first published or performed in a qualifying country.
9 Section 191L CDPA.
10 The fact that the performer is not entitled to equitable remuneration when a film or a music video incorporating the performance is shown in public, is a curious and unfortunate anomaly and one that is more than likely a product of successful lobbying than legal justification.
11 SI 1995/3297.
12 The principle of “reciprocal treatment” will apply to performers who are not EEA nationals whereby they will be granted rights for the period to which they would be entitled in their country of residence (although the term may not exceed that granted under the Term Directive).
13 For those non-European nations that signed the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), the term of protection must be at least 50 years from the end of the calendar year in which the performance was fixed or the performance was made (if it was not fixed).
14 Arnold, R. Q.C., Performers’ Rights (2004) p.35.
© 2005 Jamie Barnard