26. THE RECORDED PERFORMANCE
Sherlock and John’s investigation takes them to the studio where the film The Forger’s Apprentice is being made. In Case File #13 we considered how the law defines the concept of the author in relation to films, and how a film might be based on different types of protected works belonging to different copyright owners. We now turn to another group of creative professionals involved in the making of films: actors. In this Case File #26, we look at the protection conferred to actors and other performers by performers’ rights.
As performing artists, actors receive legal rights known as performers’ rights, similar in nature to copyright. Performers’ rights were introduced shortly after recording technologies had made it possible for individuals to record and sell unauthorised copies of live performances. Before then, producers and performers could monetise the showing or viewing of performances relatively effectively by selling tickets at the doors of venues. However, cheaper recording technologies enabled bootlegging to thrive (making and selling unauthorised records), which motivated the government to introduce new rights to better protect the interests of producers and performing artists.
Like authors’ rights (copyright), performers’ rights are set out in the Copyright, Designs and Patents Act 1988 (the CDPA). Section 182 of the CDPA gives performing artists the right to authorise the making of a recording of their performance; that is, the right to consent to their work being recorded or not. The CDPA also allows performing artists to control the use of recordings, after authorisation (see, sections 182A-182CA). This right enables artists to seek royalties for the use of records of their performance, in the same way that authors can claim royalties for use of their work.
The CPDA also grants moral rights to performing artists. They have the right to protect the integrity of their performance against ‘derogatory treatment’ (see section 205F) and the right to be identified as the performers in live performances or on the records of their performance (see section 205C). When artists perform as a group, crediting the band is enough to satisfy this legal obligation: there is no need to name every artist individually.
Performers’ rights last for a period of 50 years, from the end of the year in which the performance takes place. However, if during that period a recording of the performance is released to the public, the duration of rights will be extended for another 50 years calculated from the end of the year in which the recorded performance is released.
Also, interestingly, when calculating duration, performances fixed in a sound recording are treated differently from performances recorded by other means. For a sound recording – rather than, for example, an audiovisual recording – the additional period of protection following the release of the recording to the public will be 70 years rather than 50 years. That is, performances captured by sound recordings are granted an additional 20-year protection compared to other types of recording.
In addition to these economic and moral rights, performers also benefit from what we call ‘remuneration rights’ to ensure they receive equitable revenues from the owner of the copyright in the sound recording or the film capturing their performance (see, sections 182D and 182CA(2)). And, just as performances fixed in sound recordings enjoy the additional benefit of an extra 20-year protection, they also receive additional remuneration rights, such as the ‘20% fund’ measure (see, sections 191HA(1), 191HA(2) and 191HB(3)): this provision requires record producers and companies to pay organisations representing performing artists 20% of the gross revenues generated by the commercialisation of sound recordings of performances during the additional 20 years of protection.
WHAT IS A PERFORMANCE?
Performers’ rights only apply to performances as identified by the CDPA. Section 180(2) of the CDPA defines a relevant performance as ‘a live performance given by one or more individuals’ of either: ‘(a) a dramatic performance (which includes dance and mime), (b) a musical performance, (c) a reading or recitation of a literary work, or (d) a performance of a variety act or any similar presentation’.
So long as a performance falls within this definition it will be protected. There are no additional conditions or criteria to satisfy. For example, whereas literary, dramatic, musical and artistic works must be original before they will attract copyright protection, a performance does not need to be original to enjoy protection under the law. This means that most traditional forms of performance – such as stage or street acting, musical and dance interpretations, recitations or improvisation – will be protected, even if they are similar or even identical to other, earlier performances.
Live performances of copyright works – such as a literary or a musical work – clearly qualify for protection. But, what about other types of contemporary performance, such as participating in a Reality TV show or modelling on a cat-walk? It is not clear that they are protected. Should they be? Do they fall within the definition of a performance set out above? Or how about the stuntman in the Forger’s Apprentice? Would his fall from the scaffolding be protected as a performance?
Do you think your school teachers are ‘performers’ within the meaning of the CDPA? Have you ever been a ‘performer’?
PERFORMERS’ RIGHTS AND COPYRIGHT
In general, performers’ rights provide a very similar form of protection to the rights granted to authors by copyright. Nevertheless, there are a few notable differences between the rights enjoyed by authors and those granted to performers. First, the duration of these rights differ, with copyright typically lasting longer than performers’ rights. Second, performers’ rights only protect the recording of a performance; they do not protect the actual performance itself in the way that copyright protects against copying the actual work. For example, it is perfectly lawful to copy or imitate another performing artist’s style, demeanour or mannerisms: these aspects of their performance are not protected. Lastly, and perhaps most surprisingly, performers do not have right to object to false attribution under UK law, which is an important moral right enjoyed by authors (see section 84).
Finally, it is worth noting that the same artist may enjoy both copyright and performers’ rights in his or her contribution to a creative work. For example, consider an actor who directs and/or produces his own film, or a singer-songwriter who writes, composes and records her own music. As a songwriter, the musician will enjoy copyright in the songs that she writes. And, when she records her song, she will enjoy performers’ rights in the recorded performance.
THE CASE: RICKLESS v. UNITED ARTISTS CORP (1988)
Performers’ rights were a relatively late addition to UK law. There were only introduced in 1988, in their current form. One famous case, known as the Peter Sellers case (Rickless v. United Artists Corp (1988)), is understood to have played a significant role in the introduction of the performers’ rights regime.
A dispute arose between the makers of the sixth ‘Pink Panther’ film – Trail of the Pink Panther – Blake Edwards and United Artists on the one hand, and the relatives of comedian Peter Sellers on the other. Peter Sellers had played the famous French detective in the first five Pink Panther films. Shortly after Peter Sellers’ death in 1980, Blake Edwards and United Artists decided to make a sixth instalment of the Pink Panther franchise from existing footage of his performances in previous films. Peter Sellers’ relatives took legal action against the making and release of the film; they objected to re-using the work of the deceased without seeking his or their consent. In effect, Peter Sellers’ family were asking for the enforcement of performers’ rights which did not exist at the time. Due to the sensitive nature of the facts, the Court accepted their request, urging the legislators to improve the legal protection of performers and to prevent such incidents taking place in the future.
FOR DISCUSSION: AUTHORS vs PERFORMERS
Compare the duration of performers’ rights to the duration of authors’ rights described in Case Files #2 and #22. Which is shorter? Can you think of a scenario where the performers’ rights would outlast the copyright vested in a film?
We know that authors and performers do not receive the same level of protection. Why do you think that is? Do you think it is justified?
To help you answer these questions, think of your favourite film. What do you like most about it: the story as it is told by the script, the images created on screen or the performance of the actors? Alternatively, think of your favourite song. Which do you prefer, the singer or the song? Check whether the singer also composed the music and/or wrote the lyrics. Does this change your opinion?
Copyright Designs and Patents Act 1988: http://www.legislation.gov.uk/ukpga/1988/48/contents
Rickless v. United Artists Corp  QB 40
Download the PDF version of Case File #13 – The Multiple Rights
Download the PDF version of Case File #2 – The Monster
Download the PDF version of Case File #22 – The Two Heads
Download the PDF version of Case File #26 – The Recorded Performance
More Case Files
In this Case File #22 we consider the concepts of joint authorship and joint ownership of a copyright work.
In this Case File #23 The Eight Categories we consider the different categories of work that can be protected by copyright in the UK.
This Case File #24 considers film as cultural heritage, the preservation exception for archive material, wider implications of preservation and restoration.
In this Case File #25 we explore the relationship between documentary filmmaking, the re-use of other people’s work and copyright exceptions.
In this Case File #27 we look at the different types of rights that may be ‘caught’ in the recording of interviews.