A lot of you may have heard about copyright, which is essentially a creator’s right, but did you know that there are a set of rights that seek to protect performers and their performances?
As a performer, you have legal rights that can help you protect your performances, preventing their undue exploitation by others. These rights include copyrights, performer’s rights, moral rights and publicity rights. Of course, there are a few other legal recourses that you ought to keep in mind when performing a body of work in front of an audience. Here’s a little breakdown of what you need to know as a performer.
How are we defining performers?
So the Indian Copyright Act, 1957 defines performers to include actors, singers, musicians, dancers, acrobats, jugglers, conjurers, snake charmers, persons delivering a lecture or other persons making a performance (This is as per Section 2(q) of the Copyright Act, 1957 as amended in 1994). A performance as defined by the same statute, refers to any visual or acoustic live presentation made by one or more performers. (Again, this is as per Section 2(qq) of the Copyright Act, 1958 as amended in 1994. Both definitions have been retained in the Copyright Act, 2012 – which is the most recent operational Copyright statute in India).
In other words, a performer is basically anyone presenting a body of work, live in front of an audience.
And what are performer’s rights?
We know that a copyright helps you claim certain exclusive rights over a body of work that you have created (Want to brush up Copyright basics? You can here). A copyright doesn’t really extend to the live performances of the body of work owing to the whole medium fixation issue involved in copyrightability. The law still recognizes the need to protect an artist’s rights inherent in his or her performance, and that’s what Performer’s Rights are essentially about.
Like in the case of Copyright, a Performer’s Right is basically a bunch of exclusive rights that inherently vest in the performer and include:
(a) the right to make a sound or visual recording of the performance, which can then extend to the
i. right to actually reproduce or copy the performance into a medium that allows storage of the performance for future reference;
ii. right to issue these copies to the public for the first time;
iii. right to communicate it in some form to the public; and
iv. right to commercially exploit a recording of the specific performance by the way of sales or rentals.
(b) the right to publicly communicate or broadcast the performance for the first time.
So, it’s obvious then that Performer’s Rights basically translate into rights that prevent unauthorized recordings of your performance, or their sales and reproductions.
Wait, so does this mean that I lose my rights once my performance has been recorded?
No – that was the case prior to amendments made to the Copyright Act in 2012. Lucky for us, the amended provisions of the Copyright Act make it clear that the scope of performer’s rights now extends to the reproduction, issuance, communication, sale and licensing of the audio/visual recording of your performance. The thing to remember is, that you get to keep your rights over a performance’s recordings so long as the recording hasn’t already been communicated or broadcasted to the public. In other words, you can’t do much if your performance has already been aired by the local television channel as a part of it’s Sunday special – so it’s good to discuss what happens to your recording prior to broadcast.
But I heard this sortof thing doesn’t apply to performances featured in a cinematographic film – is that true?
If your performance has been incorporated (with your consent of course) in a cinematographic work, then the performer’s right does not extend to this recording anymore because it is understood that the film’s producer now owns that performance as a part of his or her cinematographic work. However, the rights over using the footage of your performance are limited to usage in that specific movie – meaning just because you consented to your choreographic work being a part of Movie A doesn’t mean that Movie A’s producer can go ahead and use it in Movie B.
Also, extinguishing Performance Rights doesn’t mean that you’re not going to be entitled to royalties in case your performance is going to be used for commercial purposes outside the movie.
What about Moral Rights?
So the good news is that post the 2012 Copyright Act amendments, performers also have a separate moral right. (Not sure what moral rights are? You can read about that here). This is a big chance from the idea that only authors or creators of original work could have moral rights. Needless to say, this considerably strengthens your cause against unauthorized or inappropriate usage of your performance’s recordings.
So there’s no recording but someone used a performance picture on their brochure without my permission – did they just violate my right?
Yes, they did. Every public figure has a certain set of rights in his or her image and name. This is really the essence of what are known as Publicity Rights. Now Publicity Rights are catching up in India but are really quite popular in other countries as well, but suffice to say that you do have a right in the picture featuring you performing your piece of work. So if someone decides to make an unauthorized use of your name or picture, then you can claim that they have violated your publicity rights. In addition, there are other laws that come into play (like defamation) if someone has used your image or name in an inappropriate context.
So what do I really need to remember about performance rights?
The most important thing to remember is that you do have rights over your live performance and in the most practical sense, this means that you can refuse to let someone from making a recording of your work (and you’re not just being a moody artist if you’re insisting on this). As a performer, you have to be careful that your performance is not violating anyone else’s copyright but you also have to make sure that you are aware of the different and separate rights you have in your live performance.