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Copyright in Performance
Copyright is a form of legal protection, to make sure others cannot use an author’s or creator’s work without their permission (or without a reasonable defence). Copyright in Australia is regulated by the Copyright Act 1968.
Copyright exists automatically. This means that there is no need to register or apply for Copyright and there is no need for the work to be published for it to be protected by Copyright.
Even though a performer may not have written the script or score they are presenting, the individual still expends their own skill and creativity to produce the perfect rendition. The Copyright Act recognises the value in performance and attributes certain rights to live music performers to ensure they are protected.
This process of copyright protection is described as the copyright ‘subsisting’ in the work. More information about copyright in general can be found in our article, Copyright in Australia.
What type of performances can by protected?
The Arts Law Centre of Australia provides a helpful list of the following types of performances which can be protected by Australia’s copyright law:
- Literary works;
- Dramatic works;
- Musical works;
- Circus, variety acts or similar shows; and
- Expression of folklore.
Is it important to remember that as a performer, not all performances give rise to performance rights. Playing sports, contributions from teachers or students within an educational environment, and reporting items of news will not come under the protection of copyright as a performance.
How does copyright apply to performers?
Performers have a number of rights against breaches of their copyright protections.
Performers have a right to prevent any unauthorised recordings of their performance and have a right to ensure their performances are not broadcast to the public without their permission.
Any person who wishes to record, film or broadcast a live performance must seek the consent of the performers, provided the copyright protection period has not expired.
Co-ownership of sound recordings
In relation to an audio recording of a live performance, performers share ownership in the copyright of the recording made, provided the recording was made after January 2005.
For instance, when an artist and their band record their latest hit, everyone contributing to this live performance – the singer, guitarist and other musicians – all share half of the copyright in that performance. The recording studio usually owns the other half.
Performers should note that copyright arrangements can be varied by a contract between the parties or through employment agreements, and whether or not the sound recording is commissioned.
Performers also have moral rights in their work. They have the right to ensure their work is attributed to them, meaning they have a right to be recognised.
Performers also have a right to ensure a performance is not falsely attributed. This arises when a performer is credited for work that is not their own.
Finally, performers have a right to ensure the integrity of their performance, preventing the type of treatment of their work that may prejudice their reputation.
As an example, a well-known band have performed a concert and a radio station has broadcasted it on the radio. Every physical performer featured in the recording of the concert has a right to be credited, although providing credit to the band’s name is sufficient. If that same performance is credited to another artist, this would be false attribution of authorship.
Finally, the band will have a right to object to any treatment of their work that would have a detrimental effect on their reputation. This means that individuals will be prohibited from taking this live performance recording and adapting or distorting it in any way that would prejudice the band’s reputation.
Unlike general copyright, these rights are not assignable.
What can you do if your copyright has been infringed?
If, as a performer, you find that your performance rights have been infringed there are a number of steps you can take, such as the following:
- Make sure that there is no defence or exception which allows for the legal use of your work;
- Ensure there is no contractual arrangement excluding your rights as a performer;
- Communicate to the person you believe to be infringing your copyright that they should take down the material or destroy it;
- Send a cease and desist letter to make it clear that your copyright has been infringed; and
- If in the rare case the infringement warrants court action, unauthorised use of a performance entitles the performer to sue the infringer and prohibit any further use of the unauthorised recording. This is known as an injunction. The performer may also be entitled to compensation in the form of damages.
Live performance requires skill and creativity on behalf of the performer. It is a valuable piece of entertainment that deserves to be protected.