Rights in Performances FAQ
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| Anna Pavlova as the Dying Swan
Author Unknown
Source Wikipedia |
Jane Lambert
30 Aug 2016
What are Rights in Performances?
The rights to object to the broadcasting, filming or taping of a performance by an actor. dancer, musician, singer or other performing artist. Such rights accrue to the performer and to any broadcaster, film or recording studio that has contracted to record such performance. They are the equivalent of copyright for the performing arts. Like copyright there are economic rights and moral rights.
How do these Rights arise?
Automatically whenever an actor, dancer, musician, singer or other performer who is a citizen of the UK or some other country that has agreed to offer reciprocal protection for the performances of British artists steps on stage or into the studio of a broadcaster, film or record company in the UK or such other country.
Why do these Rights exist?
Until just over 100 years ago the only way to enjoy the work of an actor, dancer, musician, singer or other performing artist was to attend the theatre or concert hall in which he or she performed. Advances in technology have made it possible for performers' work to be broadcast, recorded and distributed to a much wider audience, Fans of such artists are prepared to pay for such broadcasts and recordings. The rights mentioned above offer those artists an opportunity to share in those payments.
How does a Right in a Performance differ from a Copyright in a Broadcast, Film or Sound Recording?
A right in a performance subsists in the work done by the actor, dancer, musician, singer or other artist who appears in a broadcast, film or sound recording. Copyright subsists in the work of the broadcaster or film or recording studio in making the broadcast, film or sound recording.
How is a Right in a Performance infringed?
A performer's rights in his performance are infringed by doing any of the following acts without his or her consent:
- broadcasting or making a recording (whether directly or from a broadcast);
- copying a recording;
- issuing copies of a recording to the public;
- renting or lending a copy of a recording to the public;
- making a copy available to the public;
- playing a recording in public; or
- importing, possessing or dealing with an illicit recording in the knowledge or belief that it is such.
- recording that performance withut consent;
- playing a recording of it in public without consent; or
- importing, possessing or dealing with an illicit recording in the knowledge or belief that it is such.
What are a Performer's Moral Rights?
A performer has the right to be identified as a performer provided that he or she assets that right and the right to object to derogatory treatment of a recording of his or her performance.
What happens if a Right in a Performance is infringed?
The performer or person having recording rights may sue the infringer for an injunction (order of the court to stop the infringement on pain of fine or imprisonment for disobedience), damages (compensation) or an account of profits (computation of the infringer's ill gotten gains and their payment to the injured party) for past infringements, delivery up and surrender of illicit recordings and a contribution to the rights owner's costs (expenses of litigation including his solicitor's and counsel's fees).
The action must be brought in the Chancery Division of the High Court or the County Court at a hearing centre with a Chancery District Registry, If the claim is for less than £500,000 and can be tried in no more than 2 days the proceedings can be brought in the Intellectual Property Enterprise Court where there is a streamlined procedure and recoverable costs are limited to £50,000. Claims under £10,000 can be brought in the small claims track of that court.
Bootlegging (that is to say infringement of rights in performances on an industrial scale) is an offence which can be prosecuted in the Crown Court or magistrates' courts.
How long does a Right in a Performance subsist?
Fifty years from the end of the year in which a performance takes place. However, if a sound recording is made of that performance the right subsists for 70 years from the end of the year of the release of the recording. If a film or any other recording is made then 50 years from the end of the year of the release of such film or other recording.
Can Rights in Performances be licensed or assigned?
Yes in much the same way as any other intellectual property right and there is statutory regulation of licensing schemes.
Where can I find the Law?
Part II of the Copyright, Designs and Patents Act 1988 as updated and consolidated unofficially by the Intellectual Property Office. Most cases on rights in performances are to be found on the British and Irish Legal Information Institute website.
Where can I obtain Further Information?
I give talks on rights in performances which are aimed at the creative industries rather than lawyers or patent and trade mark attorneys from time to time as do the British Library Business and IP Centre and its associated libraries around the country.
If you want to discuss this article or have a question on rights in performances that is not answered here please get in touch with me through my contact form or call me on +44 (0)20 7404 5252 during office hours.
If you want to discuss this article or have a question on rights in performances that is not answered here please get in touch with me through my contact form or call me on +44 (0)20 7404 5252 during office hours.
