#05: Performer rights

Performers have rights even if they don’t own the copyright in a recording…

Performers often do not own the copyright in the recordings on which they appear. They might not even have a relationship with the copyright owner that allows them to share in any money the copyright generates.

The main artists on a recording may do a deal with a record label which makes the label the copyright owner. The artists get investment and a whole load of services from the label and – in return – the labels gets the copyrights. The artist would usually be due a cut of any money generated from the copyright under that deal, though what share they get would be set out in the contract and the label might be able to recoup some of its costs out of future income. 

But even if the main artist retains ownership of the sound recording copyright, any session musicians who also appear on the recording will not usually share in the copyright. Session musicians don’t usually share in future income either, instead receiving a one-off fee for their time in the studio.

However, performers also have a set of rights in law that co-exist with the actual copyright.

PERFORMER APPROVALS
First, whenever anyone makes a recording of someone else’s performance, they must get that performer’s approval. They need the performer’s permission to make the recording itself (ie to “fix” the performance) and also to exploit the resulting copyright in a number of ways. That means there are six approvals that are needed in total…

FIXATION APPROVAL
REPRODUCTION APPROVAL
DISTRIBUTION APPROVAL
RENTAL APPROVAL
LIVE BROADCAST APPROVAL
MAKING AVAILABLE APPROVAL

For session musicians, there is an industry standard agreement put together by the Musicians’ Union and record label trade body the BPI that provides these approvals. Under that agreement the performer retains some rights regarding certain future exploitation of any recording – mainly when it is synchronised or used as a backing track – in which circumstances the MU can collect additional royalties for the performer.

PERFORMER ER
Second, any performer that appears on a sound recording has a right to equitable remuneration whenever the performance or communication controls of the sound recording copyright are exploited. So that’s what the record industry often refers to as the neighbouring rights

That covers things like radio, TV and when recorded music gets played in public spaces likes pubs, clubs, shops, cafes etc. In all these scenarios the performers as well as the copyright owners have a right to payment. 

Performer ER is managed by the collective licensing system. As it happens, royalties paid by radio, TV and pubs/clubs/shops/cafes/etc are already going through the collective licensing system, so that simplifies everything for everybody! 

It means that performers as well as copyright owners need to join PPL and – whenever a new record is released – PPL needs to be told who appears on the record as well as who owns the copyright. This includes the main artist whose name the track is released under but also all and any session musicians who appear. 

ACT STUFF
Performer rights are set out in Section 182-182D of the Copyright Designs & Patents Act. 

Here’s what the act says about the performer’s right to equitable remuneration: 

“Where a commercially published sound recording of the whole or any substantial part of a qualifying performance – (a) is played in public or (b) is communicated to the public … the performer is entitled to equitable remuneration from the owner of the copyright in the sound recording”.

The Act doesn’t actually define equitable remuneration, so this is worked out by the music industry. Basically PPL income is split 50/50 between copyright owner and performers. 

Of that allocated to performers, approximately two thirds goes to the main artist and a third to session musicians – although there are some extra complexities here. These rules are managed by PPL.