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  • 4.1 Performing Artist - Economic and Moral Rights
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Overview of Economic and Moral Rights

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The live performance of a performing artist is protected by a related right. The protection of related rights is provided in the Copyright Act. Any type of use that falls under the protection of related rights requires consent from the holder of the related right in question. Despite their exclusive nature, certain aspects of related rights provide less protection than copyrights. [1]

According to the Copyright Act, the performing artist's consent is required for the following:

  • Recording the performance with a device that allows duplicating it.
  • Making the performance available to the public in a radio or television broadcast or by direct transmission.

Recording refers to the first recording of a performance on any storage medium. The device that is used for recording the performance can utilize any technology. Both analogous and digital recording technologies are subject to the right. [2] That means that "recording" refers to audio or video recording. For example, recording the concert of a rock band falls under the scope of the performer's exclusive right.

The performer is also given the right to make all instances of making the performance available to the public in a radio or television broadcast subject to his permission [3]. Direct transmission refers to transmitting the performance by wire or wireless means from the place of performance to another place where an audience can see and hear it. Thus, displaying a concert on the screens of the waiting area of a concert-hall falls under the scope of performing artist's exclusive right.

It should be noted that a live performance is, thereby, protected only against recording and making it available to the public as cited in the law. As such, a live performance, without recording or making it available to the public, does not give rise to any other rights or compensation. Therefore, any compensation for the performance should be agreed upon separately, e.g., in a contract for live performance. For example, mandatory collective labor agreements that apply to orchestral musicians may contain provisions relating to the recording of performances and the display of such recordings (recording contracts).

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Audio Recording of a Performance


Regina recording the song "Tapaa Minut Aamulla" (left) of their album "Puutarhatriologia" in their studio
Picture: Regina
Graphic: Regina

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Performing artists have the right to make the records and other recordings containing audio that are produced from their performance subject to their permission [4]. This exclusive right covers:

  • Transferring the recording to a device that enables duplicating the recording
  • Public presentation of the recording in an event with an audience
  • Communicating the recording to the public by wire or wireless means
  • Distributing the recording to the public

Copying an audio recording requires consent from the performing artist regardless of the technology employed. The public presentation of a recording to an audience also falls under the scope of the exclusive right [5]. For example, playing a CD in a restaurant requires, as a rule, consent from the performing artist. Communicating refers to all forms of communication where the audience is at a distance from the starting point of the communication (e.g. selling music on the internet). Distributing refers to distributing copies of the work (phonograms) to the public.

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Visual Recording of a Performance

Performing artists have a limited right to make the exploitation of the visual recording containing their performance subject to their permission. Performing artists do not have as extensive control over visual recording as they do over audio recordings. They can make the exploitation of a visual recording that contains their performance subject to their permission in the following cases: [6]

  • Copying the visual recording regardless of the technology employed
  • Communicating the visual recording (on demand) so that the public can view the recording in a desired place at a desired time
  • Distributing copies of the visual recording to the public

As a rule, performing artists do not have the right to make the public display of the visual recording containing their performance subject to their permission or to receive compensation for the same. There is, however, an exception in the Copyright Act that relates to visual recordings of music. The exception gives the performer of a musical composition the right to compensation when a visual recording containing his performance is displayed to the public. According to the legislative history of the Act, visual recordings of music refer to visual recordings, in which the recorded performance consists mainly of the performance of a musical composition.

For example, musicians performing in a music video are entitled to receive compensation when the music video is displayed to the public. On the other hand, dramatic films are not covered by the exception, even if music had an important role in the film, as the main content of the recorded performance does not relate to performing a musical composition. [7]

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Regina performing at Ruisrock, Helsinki 2009
Photo: Sasa Tkalcan

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Requirements of a Related Right: Protection of the Performing Artists

Overview of Related Rights Requirements for Performances
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In order to be protected by a related right, the performing artist's performance must fulfill certain criteria provided in the Copyright Act. There is no threshold similar to the level of originality. Thus, a performance does not have to constitute an original and independent work. A performance with the aim of following the conductor's instructions is also protected by a related right. However, related rights apply only to performances that fall under the field of performing arts. According to the legislative history of the Act, performing arts include acting, singing, interpreting and other acts of performing. [8]

Work or performance of folklore

In order to be protected by a related right, the subject of performance must be either a written or artistic work or a performance of folklore. Ultimately, the existence of a work within the meaning of the Copyright Act is determined by assessing whether the work is original or not. On the other hand, the work does not have to be protected at the time it is performed. A work that is no longer protected by copyright or has never been protected by copyright according to legislation in Finland, or any other country, can also constitute the subject of a performance. [9] Consequently, artists performing works by Bach or Mozart are also protected as performing artists.

A performance of folklore can also be considered the subject of a performance. According to the legislative history of the Act, this refers to performances that consist of natural elements of artistic heritage developed and maintained by the community or traditions that reflect the community's artistic heritage. [10] A performance of folklore can also take a material form. Some examples of expressions of folklore that take a material form include products of folk art, such as musical instruments and sculptures. The decisive factor here is that the act of performing must form an integral part of the "display" of folklore. As a consequence, certain activities, such as lace making, and games, such as the traditional Finnish game "kyykkä", are not protected.

Notes and References

[1] Haarmann, Pirkko-Liisa (2005) Tekijänoikeus ja lähioikeudet. Talentum, Helsinki.

[2] Harenko – Niiranen – Tarkela (2006) Tekijänoikeus: Kommentaari ja käsikirja. WSOYpro, Helsinki.

[3] Copyright Act

[4] Copyright Act

[5] Harenko – Niiranen – Tarkela (2006) Tekijänoikeus: Kommentaari ja käsikirja. WSOYpro, Helsinki.

[6] Copyright Act

[7] Copyright Act

[8] Legislative History of the Copyright Act

[9] Harenko – Niiranen – Tarkela (2006) Tekijänoikeus: Kommentaari ja käsikirja. WSOYpro, Helsinki.

[10] Legislative History of the Copyright Act