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Performers’ Rights

Performers’ Rights

Published on September 13, 2013

With the advancement of technology and an increasing cut and paste culture permeating our society, it’s more important than ever for performers and artists to be aware of their rights in relation to the creative work that they produce. In this article we give a broad overview of some of these rights including some basic techniques for protecting your copyright as a musician.

Musical works are just one of six sorts of performances that attract performers’ rights. The others are dramatic works, literary works, dance, circus & variety acts, and expressions of folklore. Performances of these kinds attract a number of rights for the performer which include the right to grant or refuse consent to the reproduction, distribution and communication of a performance.

In Australia, copyright automatically subsists in an original work during creation and once completed. You don’t need to go through any formal registration process, however, there are ways in which you can protect your work, signify that you are the creator and minimise risks of your copyright being infringed. Some of these are discussed later in this article in relation music performance. It should be pointed out at this stage that copyright only attaches to a work in material form. You cannot copyright for example an idea that you have, just the expression of that idea.

In many situations you will be performing for a company or organisation and may have to sign a contract which sets out your rights in relation to your performance. It is important to always check carefully the terms of a contract or any other written agreement as this is where unfavourable terms may be put in writing. For example, your contract may give full ownership of your performance to a production company which allows them to reproduce recordings of it for commercial purposes. Any agreements that you do make should be in writing so that you can have a definite record of the terms of your agreement.

Other than by contract, there may be exceptions to the rights you own in your performances depending on whether it was on a sound recording that was commissioned (in which case the commissioner owns the copyright), or whether it was used for domestic use, scientific research, educational purposes or in reporting the news.

The rights a performer might have extend also to moral rights. Unlike copyright, these moral rights cannot be assigned. These include the right of personal attribution and the right of integrity. Attribution refers to your right to prevent others from claiming to be the author (composer/performer, etc) of the work and to similarly prevent an unauthorised version being attributed to you. Maintaining the integrity of your work refers to your right to prevent it being treated in a derogatory way either by the way it is presented or changed. This is sometimes referred to as the debasement of a work.

In Schott Musik International v Colossal Records (1997), the Federal Court of Australia provided some indication as to how they might approach the question of the integrity of a musical work. You would all be familiar with the famous ‘O Fortuna’ chorus from Carmina Burana which has permeated popular culture through movies, samples and more recently a Carlton Draught beer commercial. This particular case was concerned with techno remixes of the ‘O Fortuna’ chorus that were released on a CD known as ‘Excalibur’. The estate of Carl Orff claimed that Excalibur debased the song and was a violation of Orff’s moral rights. The estate was unsuccessful and it was upheld by the Court that the adaptation did not debase the original. While there was disagreement as to whether an objective or subjective test should be applied, the court came to a unanimous conclusion and noted that they would be cautious not to engage in any form of artistic censorship.

Performers have faced a number of new challenges concerning their rights in the digital world. The Internet is increasingly a popular medium through which to market and distribute music, at a fraction of the cost of more traditional means. The ease at which we can upload, download and share our work comes with significant risks though. From illegal downloads to unauthorised manipulation of your music, it’s important to protect the content you put on the internet.

There are a number of things you can do to protect your music on the internet. One technique is digital watermarking. This involves embedding inaudible information into your music which can be used to trace unauthorised copies of your work to a specific source. Another common practice is to upload low-quality recordings only and offer the public a high quality version to purchase. The easiest technique however is to attach the copyright notice © with your name next to your recordings. As previously mentioned, this requires no formal registration and it serves to notify people that the work is protected and clearly shows the owner. To use this, write the © symbol followed by the name of the copyright owner and the year of first publication.

In summary, performers have a number of rights reflecting copyright in their work as well as their moral rights to defend the derogatory treatment of their work and attribution as the creator. Performers should be aware of their rights, exceptions that might exist and ways in which an employer might try and use a contract to assign their copyright. It is equally important to understand ways in which risks of infringement can be minimised. At the end of the day, the value we place on the protection of intellectual property reflects the value we place in creativity and artistic endeavour.

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