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Introduction to Musicians' Rights
A large proportion of revenue which is generated by the music
industry comes from the exploitation of legal rights in musical
and related works. If you do not know what your rights are
then you cannot know the ways in which those rights can be
exploited, nor can you know the pitfalls.
A significant part of our work is based on the varying rights
which are relevant to the music industry and the ways in which
they impact on our clients' businesses and creativity.
The principal legislation with which we are concerned in
the music industry is the Copyright Designs and Patents Act
1988 (the "Act"). It is relevant to all individual
artists, performers, producers, publishers and record companies.
When a musical work is composed it is essential to know the
rights which are in that song, the way in which those rights
can be transfererred to others or commercially exploited and
the creation of new rights which are based on that song. The
Act and legal case law determine those rights and treatment
of them. Our music web pages contain a brief overview of some
of those rights and the way in which they can be commercially
exploited.
Copyright
When a composer writes an original song, (that is a new
or innovative musical work) and records it in some tangible
form, for example, by expressing it on music manuscript or
by recording it onto a cassette or mini-disc, that new musical
work will attract copyright.
A separate copyright will also attract to the lyrics of that
song and where a different person has written those lyrics,
he or she will be the owner of the copyright in the lyrics
as a "literary work".
Where two or more people have written the music and the lyrics
together then it is likely that they will be the joint authors
and owners of both the music and the lyrics.
There are various rules which apply to the length of copyright
protection and the people or compositions which qualify for
such protection.
There is no formal requirement in the UK for the registration
of a copyright work before copyright can exist. Copyright
is a form of automatic protection which exists to prevent
others from benefiting from another's creative output.
Here we shall consider a song (which is representative of
an original musical work) in which the music and lyrics have
been created by the same person:
The copyright in the song will vest in the author, who will,
in most cases be the first owner of the song. The copyright
in the song contains a bundle of other more intricate rights.
Some of the main ones are listed below:
• the "mechanical right" which is the right
to make sound recordings of the song;
•the "performing right" which is the right
to sanction a performance of the song in public, or to allow
it to be broadcast on the radio or in a cable programme service;
• the "print right" which is the right to
sanction the production of printed copies of the work;
• the "synchronisation right" which is the
right to use the song as part of a sound track of a film or
television programme;
• the "grand right" which is the right to
use the song in part of a musical production in a theatre;
The owner of copyright in the song will be in a position
to decide how to exploit the various rights which are listed
above; preferably in a way which generates income or royalties.
The owner may choose to transfer some or all of the rights
in the song to a third party, such as a publisher, who may
then help in its exploitation. Rights in the song can be licensed
to another person, or they can be transferred for a period
of time or forever. All these methods of exploitation will
usually be for commercial gain.
Various associations exist which help in the collection of
money which is due when exploitation of the various rights
in the copyright song is carried out. The Performing Right
Society (PRS) and the Mechanical-Copyright Protection Society
(MCPS) are examples of these organisations. For more information
click here
Moral Rights
The Act also affords songwriters various "moral rights".
These are a bundle of rights which relate to the treatment
of the song by others or the treatment of the artist:
•The right to be identified as the author of the work.
This right must be "asserted" by the author before
it can be effective. You should seek advice on the way in
which a right is asserted.
•The right to object to derogatory treatment of the
author's work.
•The right not to have a [musical] work falsely attributed
to him as the author of that work.
Copyright in Sound Recordings
When a record company or other person makes a recording,
by, for example, contracting for the services of musicians
to record a song, then a new copyright work may come into
effect. This will be the copyright in the sound recording
which is created and recorded on, for example, a master tape.
The copyright in the sound recording is an entirely separate
work from the copyright in the song. The record company should
ensure that it seeks permission from the owner of the copyright
in the song before it makes the recording. If it doesn't,
it may be acting in breach of someone else's copyright.
The author of the sound recording (and therefore usually
the first owner) will normally be the record company, despite
the efforts of any specialist record producer, sound engineer
or the individual artists performing on the sound recording.
But again, you should always seek advice to ensure that this
is the case. Agreements will often include the necessary consents.
Provided that the owner of the sound recording has obtained
the consent of the performers and others who have rights in
the underlying works in the sound recording (such as the copyright
owner of the song which is being recorded) then the record
company will usually be free to exploit the sound recording
for commercial gain. The relationship of the various parties
who are involved in the production of a sound recording should
be carefully regulated by contract and advice should always
be sought before any agreement is signed or executed. All
parties involved should endeavour to clarify their position
to avoid potential dispute and to regulate the commercial
reward which each party expects to receive from their contribution
to the sound recording project. Some of the important agreements
which regulate parties in the music industry are considered
on the following web page [Agreements in the Music Industry].
Performers' Rights
The Act gives rise to another important type of legal
right which is called the performer's right. This should not
be confused with the "performing right" which has
already been considered.
The performer's right can be analysed as a performer's right
and a recording right (for those who have the benefit of an
exclusive recording contract). In the case of both, there
are various qualification requirements set out under the Act
which must be fulfilled. Advice should be sought in this respect.
In the case of the performer's right, the performer must
give his consent for the exploitation of the performance.
In the case of the recording right, the consent of either
the performer or the person/company having the recording right
is required before any recording of the performer is made
or commercially exploited.
Summary
This page provides a basic summary of the type of rights
which may exist when a song is written, recorded and performed.
The ownership of these rights and the way in which they are
exploited should usually be regulated by agreements.
Why not take a look at our general commentary on some of
the important agreements used in the music industry. Please
click here to view.
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