What you need to know...
What is copyright?
Basically, copyright is the right to prevent copying, so the owner of copyright can prevent others copying his/her work. In the UK, the Copyright Designs and Patents Act 1988, as amended, (“the Act”), creates a further five primary infringements of copyright in addition to copying:
- 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.
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.
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 person making the broadcast.
- A typographical arrangement of a published edition: the publisher.
“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.
And 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?
Providing qualification requirements are met, 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).
What are the 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 UK or some other country to which the Act applies must have been the country of first publication of the work.
When does a work acquire copyright?
Unlike some countries, such as the USA where copyright requires registration to gain full protection (see copyright.gov), in the UK, copyright in a work comes into existence when the work is created.
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 in writing or otherwise.
Therefore, music (musical works) and lyrics (literary works) only acquire copyright once written down, or recorded on tape or disc, or into a computer, etc, and do not have copyright while only in your head.
Rather strangely, this means that if you improvise a new musical work with your band on stage and someone in the audience bootlegs you, the new work gains copyright protection only because of the bootleg recording. If it was not bootlegged, the new work would have no copyright protection.
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: generally, 70 years from the end of the calendar year of release.
- 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.
What are 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.
What is 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 (that is the paternity right described above). It gives the right to the person wrongly credited as author.
This right does not apply to authors of sound recordings, broadcasts or typographical arrangements.
Right to privacy of photographs and films The right 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 are commissioned for promotional or business use.
Performers’ rights FAQs
What are performers’ rights?
Rights conferred on a performer over the exploitation of his/her performance.
What is a 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).
What are performers’ non-property rights?
In short, the rights are:
- 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.
N.B. Performers’ non-property rights are not assignable.
What are performers’ property rights?
In relation to a recording of a performance:
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.
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.
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.
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.
What is equitable remuneration?
Where the whole or a substantial part of a qualifying performance is:
- Played in public.
- Communicated to the public otherwise than by being made available by electronic transmission (see above).
The performer is entitled to equitable remuneration from the owner of copyright in the sound recording. (Collected and distributed by PPL/UK Performer Services).
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.