Ananay Aguilar (University of Cambridge): The Value of Performance in Law: Performers’ Rights and Creativity
British copyright law has been criticised for privileging musical elements and practices that have been important in the conceptualisation of classical music, above those which have developed independently of that tradition. This conceptualisation has been associated with classical music’s aesthetic concept of the artwork: both law and the artwork treat composition as the culmination of creative genius, while performance is attributed little or no creative status. This asymmetry is further complicated by the domination of capital over labour in the protection of sound recordings, as copyright law vests authorship in the company that bears the costs of making and issuing the recording: performers are denied authorship over the record of their own performance. While the 1988 Copyright, Designs, and Patents Act introduced rights in performance, the depth and breadth of legal protection for performance-based musical practices, like most popular musics, remain limited. To overcome this asymmetry, commentators have focussed on how the concept of authorship might be extended to embrace collaborative practices that fall outside of the practices of classical music. My current project explores an alternative approach that places performers’ rights at the centre of the discussion. In this presentation I will attend to relevant case law to outline two main issues: firstly, the separation of creativity between composition and performance implied by these rights and, secondly, their relation to recent technological developments.
Ananay begins with an outline of the three areas she intends to cover –
- Copyright for performers
- Performers’ rights
She continues by briefly summarising Hadley vs Kemp, stating that the judge’s verdict (in favour of Kemp) confirmed performers’ status as the bottom of hte musical food chain. Kemp himself called it ‘a victory for all songwriters’.
“the traditional view is that a dramatic work or a musical work is the product of an author who has written a text or score […] it undervalues the contribution made by performers.” Ananay cites |copyright does not subsist in a musical work until and unless is is recorded in writing or otherwise’ – Arnold (2008). Related Arnold article here.
The 1988 CD&P Act describes a musical work as “a work consisting of music exclusive of any words or action intended to be sung, spoken or performed with the music”. [JB comment – this of course attempts to separate song and track]. It is the score that provides the distinction between composer and performer. Ananay suggests that we an arrangement is an adaptation of a prior work.
She quotes from Fisher vs Brooker‘s (Whiter Shade of Pale) verdict:
In future, record and publishing companies might be well advised to obtain assignments in writing from performers to cover arrangements of music…
Unsurprisingly this leads us to Beckingham vs Hodgens, a judgement where session player Bobby Valentino was awarded authorship (and a share of the publishing) for composing the violin riff from the Bluebells’ Young At Heart.
Ananay argues that recording technology simply moves (rather than blurs) the line where performance ends and composition starts. The problems in performers’ rights are:
- Lack of simplicity
- Performers are second
- There is no right to economic rights when the performance is communicated to the public in films
- Performance is not protected from imitation (because performers do not have to exhibit originality)
- Moral rights in the UK are weak
- Duration (of copyright)
She quotes a passage from Bently (2009):
[…] it should be noted that in two critical respects the protection afforded to performers and sound recordings is not as generous as that conferred on musical works. First, in relation to the term, which is considerably shorter at fifty years from making or release, whereas musical copyright continues until seventy years after the author’s death (Copyright, Designs and Patents Act 1988, section 12, 13A, s. 191(2)). Second, in terms of the depth of protection: neither performance nor sound recordings are protected against imitation, as opposed to replication of the very sounds created by performance or embodied on the sound recording. The important consequence of this is that if a contribution is regarded merely as part of the performance or sound recording of a particular song, no permission (or, more significantly, payment) is needed when a person subsequently performs or records their own version of the song (even one that is a sound-alike) (CBS Records 1988; Norowzian v. Arks (No 1) 1998). In some respects, then, perform- ances and sound recordings do seem to be valued less in British intellectual prop- erty law than musical and literary works.
Finally Ananay discusses contracts and possible solutions. She calls for a reopening of the discussion of performers’ rights, and what they mean as a contribution to the work. Henderson vs AATW  is cited. The judge ruled that the record company’s release of the recording without the performer’s permission breached the performer’s rights.
Last slide – ‘Credit While You Can’!
Here is Ananay’s handout: