Legal Update - Performers Rights

Intellectual Property – Media and Entertainment Law– Copyright – Performer’s Rights - Remix – Consent

In the recent case of Henderson v. All Around the World Recordings Limited [2013], it was held that a recording company had infringed a performer’s rights by copying the recording of her vocal performance and issuing to the public copies of the recording without her express or implied consent.

Background

The facts of this case are as set out below:

The claimant (“H”) was a singer/songwriter/musician.
H composed the song called “Heartbroken”.
In 2005, H met with a DJ/recording artist, Tafazwa Tawonezvi (“T”), who made a computer-based recording of her vocal performance of the song.
In January 2007, T released a new version of the song using H’s vocal performance and it became very popular at clubs. In creating the new version, T altered the pitch of H’s voice electronically and cut the vocals in certain ways. T also began producing and selling white label vinyl copies of the track.
H made appearances at clubs and performed the track with T. Subsequently, the relationship between T and H declined.
T was signed to a third party record label called 2NV.
In August 2007, the recording company, All Around the World Recordings Ltd (“AAW”) entered into a contract with 2NV to release the track, which T created. Under the contract, T was named as the artist and the advance paid to T was £30,000.
Later that month, 2NV offered H £1,500 for her vocal performance on that said track, which she refused.
In September 2007, H signed a conventional music publishing agreement with Sony/ATV Music Publishing (UK) Limited (“Sony”). Under this agreement, H assigned her copyright in her musical works (including Heartbroken) to Sony. As a result of the agreement, H was registered with the MCPS and is entitled to royalties from Heartbroken. H registered Heartbroken as 100% her own, whilst T claimed he owns 50%.
In the late summer of 2007, a video of Heartbroken was made. H participated in the video, as she felt she had no choice.
AAW had permission from Sony to release the video of the song.
There was also a dispute around the sleeve design for the single of Heartbroken. T, 2NV and H could not agree who should take centre stage. The final design was plain with the heading “T2 featuring Jodie Aysha” and writing credits to “T2/Jodi Aysha”. It also stated that the vocals are by Jodie Aysha.
H did not receive any royalties after the release. Nor has she been paid for her participation in the video or for the use of her name on the artwork.
AAW registered T with PPL. H argued that T was a remixer and so she, as the performer, would receive the majority of this income.
H claimed that AAW’s release of the track had infringed her performer’s rights by (i) copying the recording of her vocal performance of H’s original recording on the track; and (ii) issuing to the public copies of such recording without her express or implied consent.

The Law

A performer’s rights are governed under the Copyright Designs and Patents Act 1988 (the “Act”). A performer has economic rights and moral rights relating to his or her performance.

The economic rights give the performer the right to consent to the exploitation of his or her performances;
The moral rights include the right to be identified.

One specific economic right under s.182 of the Act gives the performer the right to consent to the making of a recording of the performer’s live performance. Other economic rights, which relate to a the recording of a live performance include: a reproduction right; a distribution right; a rental and lending right; and a right to make copies available to the public (ss. 182A to 182CA respectively).

Only s.182A is relevant:

182A Consent required for copying of recording

(1) A performer's rights are infringed by a person who, without his consent, makes a copy of a recording of the whole or any substantial part of a qualifying performance.

(1A) In subsection (1), making a copy of a recording includes making a copy which is transient or is incidental to some other use of the original recording.

(2) It is immaterial whether the copy is made directly or indirectly

(3) The right of a performer under this section to authorise or prohibit the making of such copies is referred to in this Chapter as “reproduction right”.

There are no formalities for consent to be effective.

Issue

The issue in this case was whether H had consented to the release of the record by AAW.

Outcome

Did H consent to the recording made in 2005? If so, what were the terms?

In the Judge’s view, H consented to the recording by T of her performance. H must have known that her performance was being recorded and she had already worked on project producing recorded music before.
Despite the above, in the Judge’s view H was not a session musician and T’s flat was not a professional recording studio. T cannot have thought that H had given her express consent to any release of the recording or any remixing.
Conclusion: The recording of H’s vocal performance of Heartbroken was recorded by T. H was the composer. The recording was made with H’s consent and the song itself (as recorded) was H’s work. Although the copyright will have belonged to T, the performer’s right and the copyright in the musical work belonged to H.

Did H consent to the remix and release of the recording by T in 2007?

In the Judge’s opinion of the facts, there was nothing to suggest that H consented to or acquiesced in the creation or release of the track.

Dealings with 2NV and AAW in mid-2007

T did not have any authority bind H in dealings with 2NV.
T did not have H’s consent to release the track.
Correspondence from 2NV to H indicates that it knew that H had objected to what was occurring. From this the Judge inferred that 2NV were aware that H had not given her consent for the exploitation of her performer’s rights.
The subsequent offer of £1,500 to H was derisory.

AAW

The Judge accepted that, from AAW’s perspective, T was the artist. However, by summer of 2007, AAW knew that H’s involvement with Heartbroken was much more significant than was being represented by 2NV.
The Judge rejected AAW’s position that H consented to and positively encouraged the release of Heartbroken for the following reasons:
- There was no express consent at any stage;
- As to implied and inferred consent, AAW knew H was unhappy and that H felt she was not being given the credit she deserved. Furthermore, AAW knew that H was not signed with 2NV, so no matter how much royalty AAW paid to 2NV, H had no contractual right to obtain any of it from 2NV. As such, there was no implied or inferred consent.
In the Judge’s view, the copying of the recording of H’s performance and issuing to the public of copies of the recording was an infringement of H’s performer’s rights.

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© RT COOPERS, 2013. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.