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Copyright for Performers in a Sound Recording

On this page you will find information about:

Copyright

Copyright is the right to prevent copying so the owner of copyright can prevent others copying their work without their permission. In the UK, the Copyright Designs and Patents Act 1988, as amended, (“the Act”), gives creators further important rights over their creations, including five primary infringements of copying, which are:

  • Issuing copies to the public
  • Renting or lending the work to the public
  • Performing, showing or playing the work in public
  • Communicating the work to the public
  • Making an adaptation of the work or doing any of the above in relation to an adaptation. Learn more on Arranging and Copying. 

In addition, the Act creates a number of secondary infringements:

  • Importing, possessing or dealing with an infringing copy.
  • Providing means for making infringing copies.
  • Permitting the use of premises for an infringing performance.
  • Providing apparatus for an infringing performance.

Who is the owner of copyright

The author of the work – that is the person who created the work – is the first owner of copyright in it. So, as regards to the music (a musical work), the composer would be first owner of copyright, and as regards to lyrics (a literary work), the writer would be the first owner. If you are recording music then please take extra care as the owner of the music and lyrics is not automatically the owner of the recording.

Regarding the following, the Act specifies:

  • A sound recording: the author is the producer.
  • A film: the authors are the producer and principal director.
  • A broadcast: the author is the person making the broadcast.
  • A typographical arrangement of a published edition: the publisher is the author.

“Producer” is defined in the Act as meaning – in relation to a sound recording or a film – the person by whom the arrangements necessary for the making of the sound recording or film are made.

Where a work is created jointly, there can be joint authorship. But where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of their employment, the employer is first owner of copyright, unless the contrary has been agreed.

However, works can be assigned from one owner to another, provided that the assignment is in writing and is signed by the person assigning the work. Most publishing contracts will assign copyright from the composer/writer to the publisher so thereafter the publisher is the copyright owner of the work.

What works can acquire copyright

Copyright can subsist in:

  • Original literary, dramatic, musical and artistic works.
  • Sound recordings, films and broadcasts.
  • The typographical arrangement of published editions.

Copyright can also exist in an arrangement or orchestration of a musical work, quite separately from the copyright in the original musical work.

If ‘A’ writes an original composition then ‘B’ helps him arrange it, A will remain owner of the copyright in the original version, while A and B can be joint owners of copyright in the new arrangement.

However, any ‘adaptation’ of a musical, literary or dramatic work will be an infringement of copyright in the original work if made without the copyright owner’s consent.

Since an arrangement or transcription of a musical work is an adaptation you will need the consent of the composer of the original work (or if the work has been assigned to a publisher, the consent of that publisher) to make an arrangement of it.

If A wants to use a particular arranger B to make an arrangement of A’s work, an agreement can be made between A and B that some share of copyright in the arrangement (but not in the original work) will be attributed to B.

This is a matter of negotiation, but it is important to remember that arrangers, producers and orchestrators have no automatic right to arrange your copyright work without your permission, and that you have no right to arrange someone else’s copyright work without their permission.

Often permission to make a new arrangement is only granted on the basis that 100% of the new arrangement is assigned to the original composer (or their publisher).

Qualification requirements for copyright

Qualification for copyright protection under the Act is by reference to the author or to the country of first publication. The provisions are rather complex and you should always take expert advice.

Essentially, to gain copyright protection under the Act, either the author of the work must be a British citizen, British national, British subject, etc, or domiciled or resident in the UK. Or the country of first publication of the work must have been the UK or some other country to which the Act applies.

When does a work acquire copyright

In the UK copyright in a work comes into existence when the work is created, unlike some countries such as the USA where copyright requires registration to gain full protection.

However, since there is no copyright in an idea, the Act spells out that musical works, literary works and dramatic works only come into existence as works capable of copyright protection once the work has been recorded, for instance, in writing or in audio or audiovisual format.

How long does copyright last

  • Literary works (lyrics): the life of the author plus 70 years
  • Musical works (music): the life of the composer plus 70 years. But as regards works of joint authorship or co-authorship the life of the last surviving author or composer plus 70 years
  • Sound recordings: 70 years from the end of the calendar year of release if first released after 1963
  • Broadcasts: 50 years from the end of the calendar year of broadcast
  • Films: 70 years from the end of the calendar year in which the death occurs of the last to die of: principal director; screenplay author; dialogue author; composer of music specially created for and used in the film
  • Typographical arrangement of published editions (for example a music score): 25 years from the end of the calendar year in which the edition was published

Moral rights

The paternity right:

Authors of literary, dramatic, musical or artistic works (and the directors of films) have the right to be identified as the author (or director) of the work.

However, the right to be identified must be asserted in an assignment of copyright or in an instrument in writing, which must be signed by them before it is enforceable.

The integrity right:

The right to object to derogatory treatment of your work ‘treatment’ means an addition to, deletion from, or alteration or adaptation (and an arrangement or orchestration is an ‘adaptation’ see above) of the work.

A treatment is ‘derogatory’ if it amounts to a distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author. An arrangement could be a derogatory treatment of a musical work.

False attribution

The right not to have a literary, dramatic, musical or artistic work falsely attributed to you as the author.

It does not give you a right to complain if you wrote/composed the work but were not credited as author. It gives the right to the person wrongly credited as author.

NB: This right does not apply to authors of sound recordings, broadcasts or typographical arrangements.

The right to privacy

The right to privacy of photographs and films allows you to prevent copies being made and issued to the public if you commissioned the photos or film for private and domestic purposes (for example, wedding or family photos).

No right of privacy would arise where photos of your band have been legitimately commissioned for promotional or business use. 

If you are working in the live function field it is especially important that you consider this area. If in doubt, please contact your Regional Office.

Performers’ rights

Performance rights are conferred on a performer over the exploitation of their performance. Please note that 'performance' is defined under law. 

Definition of 'Performance'

Under CDPA s180(1) ‘Performance’ is defined as:

a) a dramatic performance (including dance and mime);

b) a musical performance;

c) a reading or recitation of a literary work;

d) or a performance of a variety act or any similar presentation which is, or insofar as it is, a live performance given by one or more individuals.

Which performances qualify for protection?

The performance must be given by a qualifying individual or take place in a qualifying country (similar to the qualification requirements for copyright see above).

Performers’ non-property rights

Performers' non-property rights are unassignable so you cannot sell or give away these rights, however, always seek MU's advice before signing a contract that seeks to take them away.

  • Not to be recorded live (except for private use).
  • Not to be broadcast live.
  • Not to be recorded off a live broadcast (except for private use).
  • The so-called “Use It or Lose It” right.
  • The right to supplementary annual remuneration.

Performers’ property rights

Performers’ property rights can be bought and so it is essential as a Performer to use an MU Contract to prevent inadvertently giving away rights without either receiving proper remuneration or allowing the MU to seek further remuneration on your behalf in the future.
In relation to a recording of a performance th ekey property rights are:

a. The reproduction right:

A performer’s property rights are infringed by any person who, without the performer’s consent, makes a copy of a recording of their performance.

b. The distribution right:

A performer’s property rights are infringed by any person who, without the performer’s consent, issues copies to the public of a recording of their performance.

c. The rental and lending right:

A performer’s property rights are infringed by any person who, without the performer’s consent, rents or lends copies of a recording of their performance to the public.

d. The making available right:

A performer’s property rights are infringed by any person who, without the performer’s consent, makes available a recording of the whole or a substantial part of a performance by electronic transmission in such a way that members of the public may access the recording from a place and at a time chosen by them.

N.B. Performers’ property rights are assignable.

Equitable remuneration

Where the whole or a substantial part of a qualifying performance is played in public or communicated to the public otherwise than by being made available by electronic transmission (as above).You as a performer are entitled to equitable remuneration from the owner of copyright in the sound recording. This is collected and distributed by PPL and it is free to join.

How long do performers’ rights last?

Performers’ rights last 50 years from the end of the calendar year in which the performance took place; or if during that period a recording of the performance (other than a sound recording) is released, then they last 50 years from the end of the calendar year in which it is released; or if during that period a sound recording of the performance is released, then they last 70 years from the end of the calendar year in which it is released.

Session Fund

After the fiftieth year following the publication of a sound recording, session musicians (musicians who transferred their rights to the producer of the sound recording for a single payment) are entitled to an equal share of 20% of gross revenues from physical and online sales of the recording. The legislation states that a musician cannot waive the right to this income.

What if I haven’t received any Session Fund Payments?
If you are a session musician who performed on recordings published between 50 and 70 years ago but have not received any payments from the Session Fund, you should contact PPL to ensure you are linked to the relevant recording(s).

If PPL has not received a contribution to the fund from the producer in relation to the relevant recording(s), the legislation provides that the musician may request in writing any relevant information in their possession.

The producer must respond with the requested information within 90 days, and a musician may apply to the County Court (or the Sheriff in Scotland) if the producer does not comply within the timescale.

If you encounter difficulties with records labels then please alert the MU as soon as possible so we can assist you.

"Use It or Lose It" right

If a sound recording, after the fiftieth anniversary of its first publication, is not being made available in sufficient quantity, both in physical format and online (i.e. to meet the demand from consumers) then, under the legislation, any musician who has transferred their reproduction, distribution and making available rights or their performer’s property rights in the recording to the producer may notify them in writing that they wish to reclaim their performers’ rights in the recording.

The producer then has one year from the date of the notification to rectify the issue by making the recording available to meet consumer demand. If they do not, their copyright in the sound recording will expire.

Once the producer’s copyright has expired, any other party (including the musician) is free to exploit the recording for the remainder of the extended copyright term, provided they have gained permission from all the other musicians on the recording (or their estates) and the owners of the music and lyrics.

Applying Clean Slate provision

After the fiftieth year following publication of a sound recording, the legislation provides that the producer must pay royalties from exploitation of the recording to all performers who are contractually entitled to them, without deduction regardless of any contractual clauses allowing them to do so.

This means the label is no longer entitled to offset any packaging deductions, marketing costs or advances against royalties payable in relation to the specific recording(s) in question. They still retain the ability to do so against any royalties due from exploitation of other sound recordings covered by the performers contract with them, that are yet to fall into the extended period of copyright.

If you signed a record contract and performed on recordings which were first published between 50 and 70 years ago, you should check any royalty statements you receive to ensure the label has applied the clean slate provision to all qualifying recordings.

If you are not receiving regular royalty accounting from the label, you should contact them with the same question, as it could be that they have not applied the provision and your royalties in relation to the qualifying recordings are being used to offset an unrecouped royalty balance.