As from today, 1st February 2006, performers have been granted moral rights which broadly mirror those which have been enjoyed by composers in the UK for the last seventeen years. Looking at the paucity of moral rights cases coming before the courts, composers don’t seem to have found them very useful. So are performers likely to be better served by their new legal rights?
There are two new rights often called the “paternity” and the “integrity” right. The first is to be identified as a performer in the context of a live performance, a live broadcast of a performance or sound recording of a performance. The second is to be able to object to the derogatory treatment of a performance.
The problem for performers, as with composers before them, is that these rights are severely circumscribed by exceptions and by the fact that they can be waived. Indeed, it is pretty standard practice to require them to be waived under songwriting agreements, assignments and commissioning agreements. The same approach has already been adopted with performers’ moral rights under many standard recording contracts in anticipation of the new rights being granted.
There is an interesting additional exception which is peculiar to performers. This will be welcomed by the worlds of advertising and marketing since a performer is not required to be identified where his performance is given for the purposes of advertising any goods or services.
The right to be identified has to be asserted effectively before it can be enforced against potential infringers. All those involved in representing the interests of performers need to take particular care to spell this out in recording contracts, session and live performance contracts. Conversely, those acquiring rights from performers will need to review their documentation to ensure that their practices do not become inhibited by the new rights.
This may be a good opportunity for those contracting with performers (and composers) to consider their strategy on moral rights and to see if there is scope for benefiting from them.
Finally, the performers’ new moral rights do not apply to performances rendered before today so this is an exercise for the future.
The Performances (Moral Rights, etc.) Regulations 2006 can be viewed here: http://www.opsi.gov.uk/si/si2006/20060018.htm