Guidance

Performers' rights

Published 16 October 2019

1. Performers’ rights

1.1 Overview

Alongside copyright, there are separate protections offered to performers known as ‘performers’ rights’. These provide several rights for performers in relation to their performances. A performer can be anyone who acts, sings, delivers, plays in, or otherwise performs a literary, dramatic or musical work.

Examples include:

  • actors in films
  • voice-over artists featured in adverts
  • backing vocalists singing on a record

1.2 Duration of the rights

A recording of a performance is ‘released’ when it is first published, played or shown to the public.

Rights in unreleased performances last for a 50 year period. The period begins from the year in which the performance occurred. If during this 50 year period a recording of the performance is released, then the following rules apply:

  • if the recording of the performance is not a sound recording, the term of protection extends to 50 years from the date of release; or
  • if the recording of the performance is a sound recording, the term of protection extends to 70 years from the date of release

1.3 How Performers’ rights protect performances

Sometimes performers will want to prevent certain uses of their performances. Performers’ rights prevent people from:

  • making recordings of, or broadcasting, a live performance
  • making a recording directly from a broadcast of a live performance
  • making a copy of a recording of the performance
  • issuing copies of a recording to the public
  • renting or lending copies of a recording to the public
  • uploading the recording to the internet where it may be viewed by the public

Performers’ rights can also help to ensure that performers receive payment for their work. For example, when sound recordings of a performance are played in public, the performer should receive payment. This is also the case when sound recordings are made available to the public, for example, in a broadcast.

Often, a Collective Management Organisation (CMO) will administer royalties to performers. For more information please visit the page on Licensing Bodies and Collective Management Organisations.

1.4 Third parties

As with other intellectual property rights, performers can assign or license their rights to third parties. This means that, with permission, people other than the performer may:

  • make a recording of the performance
  • issue a recording of the performance to the public
  • rent or lend copies of the recording to the public
  • make available copies of the recording to the public

1.5 Moral rights

Performers also have the following moral rights in their performances: the right to be identified as a performer and the right to object to derogatory treatment.

The derogatory treatment right enables performers to object to alterations made to their work. This is relevant particularly when the changes risk damaging the performer’s reputation.

2. Performers’ rights in sound recordings

2.1 Other performers’ rights in sound recordings

In November 2013, the term of protection for performer’s rights in sound recordings was extended. These rights now last for 70 years from release. To ensure that all performers can benefit from this change, further protections were created. These new protections become applicable following the 50th year since the release of the recording.

Session musicians often transfer their performers’ rights to the producer of the sound recording. This happens in exchange for a one-off payment. This type of performer is a ‘non-featured artist’.

Non-featured artists can enjoy proceeds from a session fund. The fund comprises 20% of revenue generated from sales of the recording in the previous year. Non-featured artists on the record can receive a share of this fund every year until protection lapses.

The producer of the recording must set aside the revenue for the session fund and then pay it to a licensing body. The collecting society will then distribute the shares to the relevant non-featured artists. To receive payment, the non-featured artist must be represented by the collecting society.

If the producer does not pay money into the fund, the non-featured artist may request information about the session fund from them. The producer then has 90 days to respond or may face legal action from the non-featured artist.

2.3 Use it or lose it

A performer who has transferred their rights to the producer of a sound recording may still reclaim them. This will be the case if the producer is not exploiting the recording enough. Exploit here means to sell the recording or make it available online.

When a performer seeks to reclaim their rights, they must notify the producer of their intent. The producer then has a year to fix the issue; for example, by distributing the work. If the producer does not resolve the problem, they will lose rights in the sound recording. The performer will then be able to exploit their reproduction, distribution and making available rights in full.

2.4 Clean slate

Performers can assign their rights to producers in return for recurring payments (royalties). The terms of assignment are often set out in a contract. These contracts sometimes allow the producer to deduct certain costs from royalty payments. After the 50th year of protection has passed, the clean slate provision becomes enforceable. The clean slate provision obliges producers to start paying royalties in full. This ensures that performers can benefit from the extension of the duration period.