Copyright in Performance

Copyright is a form of legal protection that exists to ensure others cannot use a creator’s work without their permission. Copyright in Australia is regulated by the Copyright Act 1968. The Act covers a wide range of original works, broadcasts and performances. This page deals with copyright in performance.

Copyright exists automatically. This means that there is no need to register or apply for Copyright and work is protected by Copyright regardless of whether it is published.

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.

What type of performances can by protected?

The Arts Law Centre of Australia provides a helpful list of the types of performances which can be protected by Australia’s copyright law. These are:

  1. Literary works;
  2. Dramatic works;
  3. Musical works;
  4. Dance;
  5. Circus, variety acts and similar shows; and
  6. Expressions of folklore.

Is it important to remember that as a performer, not all performances give rise to copyrights protections. 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 rights with respect to taking steps to prevent breaches of their copyright protections.

Unauthorised recordings

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

When an audio recording is made of a live performance, the performers share ownership in the copyright of the recording, provided the recording was made after January 2005.

For instance, when an artist and their band record a song, everyone contributing to this live performance owns a share of the copyright in that performance. The recording studio usually owns a share as well.

Performers should note that copyright arrangements can be varied by a contract between the parties or through employment agreements, and may be affected by whether or not the sound recording was commissioned.

Moral rights

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 has 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 a performer finds that their performance rights have been infringed there is a number of steps they can take. These include:  

  1. making sure that there is no defence or exception which allows for the legal use of the work;
  2. ensuring that there is no contractual arrangement excluding your rights as a performer;
  3. communicating to the person you believe to be infringing your copyright that they should take down the material or destroy it;
  4. sending a “cease and desist” letter to the party responsible to make it clear that the copyright has been infringed and that action is needed; and
  5. seeking a remedy from a court.

Court remedies

If a copyright infringement warrants court action, unauthorised use of a performance entitles the performer to sue the infringer.

If the court finds that copyright has been infringed, it may make an order to:

  • prohibit any further use of the unauthorised recording. This is known as an injunction.
  • make an order to compensate the performer. This is known as damages.

Live performance requires skill and creativity on behalf of the performer. It is a valuable piece of entertainment that deserves to be protected.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.


Michelle Makela

Michelle Makela is a Legal Practice Director at Go To Court Lawyers. She holds a Juris Doctor, a Bachelor of Science (Psychology) and a Master of Criminology. She was admitted to practice in 2006. Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. 
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