Legal Protections for Musicians – Performing Rights

Guitarist

This is the third and final part of a series looking at the protections UK law provides to musicians. Part 1 dealt with copyright and Part 2 dealt with moral rights. This article looks at performing rights.

What are ‘performing rights’?
Performing rights provide artists with rights not dissimilar to copyright. Whilst copyright protects music, lyrics and sound recordings, performing rights provide artists with protection for their performances or recordings of their performances. For example, an artist who performs on stage or during a concert would usually benefit from performing rights.

Performing rights provide the performer with the following protections:

  • the right to control the broadcasting of his or her live performance to the public;
  • the right to prevent the recording of any live performance; and
  • the right to prevent copies of a recording of a performance being made.

These rights are collectively known as a performer’s ‘non-property rights’.

A performer can also prevent the copying of any recording of their performance, and may be entitled to payment for any recorded performance that is subsequently broadcast, publicly performed or rented. These rights are known as the performer’s ‘property rights’.

Can you provide some examples?
An artist’s performing rights may be infringed if any of the following occur:

  • A covers band performs your music in a public venue without obtaining the requisite consents;
  • Your music is played in a business (such as your local hairdresser);
  • Your music is made available on a publicly accessible webiste for download.
A real life example was provided in the Scottish case of PRS v Kwik-Fit Group. In this 2007 case PRS (now PRS for Music) issued a claim against Kwik-Fit for copyright infringement. PRS claimed that Kwik-Fit’s fitters had used radios at Kwik-Fit garages to listen to music for many years. These radios were personal radios, but their music could be heard by other Kwik-Fit employees and customers. PRS claimed that this use infringed performers’ rights in the music played on the radios. PRS also claimed that Kwik-Fit was responsible for this infringement as it was the employer of the various Kwik-Fit fitters! The case settled before coming to court but at a preliminary hearing, the judge said that there was a consistent picture emerging over many years of routine copyright infringement which, if proved, could mean that Kwik-Fit was liable. The terms of the settlement are confidential but, in my opinion, there would have been great pressure on Kwik-Fit to settle this matter out of court – avoiding all the costs usually associated with legal action.

How do I exercise my performing rights?
The simplest way to exercise your performing rights is to join a collection society such as PRS for Music. Membership of PRS for Music costs just £10. By joining PRS for Music you transfer parts of your copyright to PRS for Music. These include your rights to:

  • perform your music in public (at clubs, pubs, shops and concerts, etc.); and
  • communicate your music to the public (via radio, satellite, cable, the Internet, etc.).
PRS for Music then grants licences to individuals and organisations for fees that are specified on the PRS for Music website. Once collected, these monies are distributed to members. Distributions are made in April, July, October and December of each year.
It is possible to manage your own performing rights, but for many artists this will not be a realistic alternative to joining a collecting society. In any event, the collective power of organisations such as PRS for Music is significant. For example, PRS for Music recently issued its first public performance licence in the United Arab Emirates, and continues to press countries to increase efforts to repatriate royalties for performances by UK artists overseas. However, some mainstream artists including U2, Dire Straits and Simply Red have at times expressed their dismay at the level of administration fees charged by PRS for Music. These fees currently amount to 20% (capped at £1,250 per event) for a typical pop concert.

How much could I be paid?
This varies enormously, but for playing at a local pub, the royalty generated will be approximately £6. For rock and pop concerts at mainstream venues, the royalty generated is 3% of box office receipts. So, if you sell 10,000 tickets at £12 the royalty will be 3% of £120,000 = £3,600.

For music played on terrestrial radio stations the royalties range from £16.84 per minute on Radio 1 to 62 pence per minute on Absolute Radio (figures correct as at Dec 2010).

PRS will deduct an administration fee from all royalty payments, full details of which are available here.

Summing up…
Performing rights are extremely valuable. Collecting societies such as PRS for Music provide a cost effective way in which musicians can work together to receive payment for the performance of their works.

Please feel welcome to leave comments and feedback on the above post. I am also happy to answer general copyright questions submitted as comments through this entry. If you would like to discuss any specific requirements then please feel welcome to call me, Mark Roberts, on 0161 826 9309.

Legal Protections for Musicians – Moral Rights

This is the second part of a series looking at the protections UK law provides to musicians. The first part dealt with copyright. This article looks at moral rights – which provide the artist with a right to be identified as the creator of material such as a song, and to object to any distortion or false or misleading portrayal of their material.

Moral rights can be extremely useful. For example, in 1993 George Michael was granted a pre-trial injunction by the Court of Appeal preventing the release of a medley of various Wham! songs called the ‘Bad Boys Megamix’. The Court found that the release of the ‘Bad Boys megamix’ would be in breach of Michael’s moral rights as it was capable of being distortion or mutilation of his work amounting to derogatory treatment.

What are moral rights?
The basis for moral rights is set out in the Copyright, Designs and Patents Act 1988 (the ‘CDPA’) and provide an artist with the following benefits:
  • The right to be identified as the author of a copyright work. This is known as the “right of paternity”.
  • The right to object to derogatory treatment of a copyright work. This is known as the “right of integrity” and an example is provided by the George Michael case above.
  • The right to privacy for films and photographs that you have commissioned.
Moral rights apply to literary, dramatic, musical or artistic works and films. This includes music, lyrics, original album artwork and music videos. They do not apply in the case of sound recordings, with the effect that whilst an artist can have moral rights for the music and lyrics to a song, no moral rights can be exercised in any recording of that same song.

How long do moral rights last?
The rights of paternity, integrity and privacy last for the normal term of copyright, which is the life of the author plus 70 years.  The right to prevent false attribution is limited to 20 years after the death of the author.

Are there any limitations?
Yes. Moral rights do not apply in all circumstances. For example, where a work is created by you as an employee your employer will generally own the copyright to that work. In this scenario you will only benefit from limited moral rights. This may be relevant to an artist who has, for example, signed a band agreement where the artist provides services to the band’s company or partnership as an employee.

Also, the right of paternity has to be ‘asserted’. This means that the artist has to ‘stake a claim’ to their moral right. For an artist this is usually achieved by specifying wording such as:

The author has asserted his/her moral right in accordance with Section 77 of the Copyright, Designs and Patents Act 1988.

The simplest way to assert a right of paternity is to ensure that it is clearly set out in any agreement in which you assign your copyright to any music or lyrics to a third party, e.g. a publisher. In respect of jointly written works, each artist must independently assert their right of paternity.

In addition, moral rights cannot be assigned to a third party, e.g. to your publisher. However, moral rights can be waived by the artist, and this fact is often seized upon by media businesses. For example, in film-making a film company will always want the security of moral rights waivers from the composer of any music used in a film. The rationale for seeking a waiver is that any organisation who acquires rights to exploit any type of copyright work should not be inconvenienced by having to respect the artist’s moral rights! However, with an large number of deals between parties of increasingly equal bargaining positions the time has never been better for an artist to seek to retain their moral rights.

What is the situation overseas?
Moral rights in the United Kingdom are far more limited than in the rest of Europe. For example, in France, moral rights (or droit moral) cannot be waived. Other countries benefit from additional moral rights, such as the right to correct work, object to alteration or destruction and withdraw from circulation. In the United States there is no formal concept of moral rights. Bear these differences in mind and take specific legal advice if you are ever working overseas! For example in the U.S. you will need to include contractual protections equivalent to moral rights in your contracts with publishers and record companies.

Wrapping up
In summary, moral rights are extremely valuable and you should endeavour to retain them wherever possible. Whilst it is still the norm for these rights to be waived, it is becoming increasingly possible to negotiate a retention of your moral rights in music business contracts. If you must waive your moral rights against lawful users (e.g. your publisher) then try to retain your rights against unlawful users.

Please feel welcome to leave comments and feedback on the above post. I am also happy to answer general copyright and moral rights questions submitted as comments through this page. If you would like to discuss any specific requirements then please feel welcome to call me, Mark Roberts, on 0161 826 9309.

 

Legal Protections for Musicians – Copyright

In this three-part mini series, I’m going to look at the legal protections UK law provides to musicians to allow them to protect their work. These rights are:

  1. Copyright which gives the creators of music, lyrics and sound recordings rights to control use of their work. These rights include saying who can and cannot make copies, issue copies to the public, or broadcast and use on-line.
  2. Moral Rights which provide a right for an artist to be identified as the creator of material such as a song, and to object to any distortion or false or misleading portrayal of their material.
  3. Performing Rights whichprovide various rights in performances by an artist, such as a gig. These include rights in all recordings, films or broadcasts of their performances.

The first part of this mini-series looks at copyright. Moral rights and performing rights will be the subject of future blog posts.

What is copyright?
Copyright protection is automatically and freely available for works that are original and that have been recorded. The law regarding copyright is set out in the Copyright, Designs and Patents Act 1988 (the ‘CDPA’). In essence, copyright rewards individuals who have independently created a piece of work such as music or lyrics by enabling them to control use of their work.

The CDPA sets out various categories of works that qualify for copyright protection. For musicians, this means that distinct and separate copyright works can exist in relation to a song recorded to CD. In this example, copyright protection will apply to:

  • The music of the song  which is classified as a ‘musical work’.
  • The lyrics of the song which is classified as a ‘literary work’.
  • The sound recording of the song which is classified as a ‘sound recording’.

The fact that the CDPA provides copyright protection for sound recordings is of particular interest to musicians as a new, clear and separate right of copyright will exist in a recording of any existing piece of work. So, if a producer records an artist playing one of their songs then a new work has been created by the generation of that sound recording.

Artists can use this to their benefit. For example, Squeeze recently re-recorded part of their back catalogue when Universal refused to grant them a licence to use their original recordings. By re-recording their original works a new work was created and Squeeze own that work. This has put them back in commercial control of the songs that they originally created.

Who benefits from copyright?
The CDPA states that the person who creates the work – the ‘author’ – owns the copyright to that work. So, the artist who writes lyrics or music will own the copyright to those lyrics or music.

Often the lyrics are written by one person and the music by another. Alternatively, two or more persons could collaborate on writing a song – both being involved in the creation of lyrics and music together. In both scenarios, the artists are called co-writers and they jointly own the work they created. In this scenario, the artists should ensure that they agree, in writing, who owns the lyrics and who owns the music. If the artists have worked together on elements of both then they should record the percentage contribution made in each area (e.g. Miss Lyricist – 20% music, 75% lyrics and Mr. Songwriter – 80% music and 25% lyrics).

Needless to say, there are numerous disputes between artists, producers and band members as to who wrote what. Not surprisingly, these disputes tend to surface when the disputed song becomes a hit! The most prominent recent example is that between James Blunt and producer Lukas Burton in which Burton claims to have co-written six songs with Blunt from the Back to Bedlam album. The preponderance of such costly, prolonged and damaging disputes makes it clear that a written record of ‘who owns what’ should accompany the writing and recording of any material.

A special provision applies to sound recordings, where the CDPA states that the author is deemed to be the ‘producer’ of the sound recording. However, the CDPA goes on to define ‘producer’ as meaning the person who made the arrangements necessary for making the sound recording. This typically means that the party who paid for the recording will own the copyright to that recording. Artists should therefore tread carefully in this area and preferably take legal advice. Before entering a studio as part of a demo or studio deal, be clear who will own what rights and ensure this is set out in writing and signed by the producer and studio.

How long does copyright last?
Copyright protection generally lasts for the life of the author plus 70 years from the end of the calendar year of his or her death. There are some exceptions to this. For example, for works created by co-writers copyright lasts for 70 years from the end of the calendar year in which the last known co-writer dies.

For sound recordings, copyright lasts for 50 years from the end of the calendar year in which the recording is made or published, or, if not published, played or communicated in public (where this occurs during that period).

What protection does copyright provide?
If you benefit from copyright then the CDPA prevents a person doing any of the following acts without your permission or consent:

  • Copying your work.
  • Issuing copies of your work to the public.
  • Renting or lending your work to the public.
  • Performing, showing or playing your work in public.
  • Communicating your work to the public.
  • Making an adaptation of your work or doing any of the acts listed above in relation to an adaptation.

For there to have been an infringement one of the listed acts must have been committed in respect of the whole or a substantial part of your work. What is a ‘substantial part’ is assessed on the basis of quality rather than quantity.

In the 1934 case of Hawkes & Son Limited v Paramount Film Service Limited the court held that a 20 second sample from a four minute recording of Colonel Bogey was an infringement of copyright because that sample was so recognisable. Lyrics also receive protection. In Ludlow Music Inc. v Robbie Williams and others (2000), the court found that the Robbie Williams song “Jesus in a Camper Van” had taken the central idea from Ludlow’s “I am the Way (New York Town)”, namely that the Son of God attracted bad luck by going round saying “I am the way” and had embodied it in virtually identical words. This was of sufficient substance to amount to an infringement of copyright.

What can I do if somebody has infringed my copyright?
If somebody has infringed your copyright then there are a range of possible remedies. These include:

  • Injunctions – which can give you the power to search premises, freeze assets or prevent the sale of, say, counterfeit music.
  • A court order requiring the infringer to deliver infringing copies of your work to you.
  • Seizure of infringing copies and other articles.
  • Forfeiture.
  • Damages to allow you to recover the money you would have made but for the infringing act. Alternatively, you may be entitled to require the infringer to account to you for the profits the infringer made from their illegal activity.
  • Criminal sanctions for certain offence. For example, making an infirnging copy of a copyright work available for sale or hire carries a maximum penalty of 10 years imprisonment or a substantial fine.

Please feel welcome to leave comments and feedback on the above post. I am also happy to answer general copyright questions submitted as comments through this entry. If you would like to discuss any specific requirements then please feel welcome to call me, Mark Roberts, on 0161 826 9309.