July 2008
Sir Cliff's Musical Summer Holiday Carries on
Under present intellectual property law, performers only retain copyright in sound recordings for 50 years of their release. Many high profile artists including Cliff Richard, Sir Paul McCartney and Roger Daltrey have campaigned for this period to be extended, arguing that they should benefit from the work throughout their lifetime, and that the royalties from many of their early songs would cease around the time they need it most, in their retirement.
The Gowers Report in 2006 commissioned by the UK government did not support any extension for sound recordings, despite songwriters and composers having copyright for 70 years from their death. The European Commission has indicated that copyright is the moral right of the performer to control the use of his work and earn a living from that performance, at least during their lifetimes.
The European Commission has now however announced proposals that would extend this period from 50 to 95 years, allowing performers to retain copyright throughout their lifetimes in most cases.
Many artists would benefit from this change, including session musicians such as Herbie Flowers, who played bass in the Lou Reed song ‘Walk on the Wild Side’, and David Bowie’s ‘Space Oddity’, who has said, “The term of protection for performers has not kept up with life expectancy and it is high time it was changed. I played on a couple of very successful tracks, and it would be unfair for me to stop receiving income for these performances after 50 years – probably just at the time when I will need it the most.”
Opponents of the extension argue that artists will see little revenue, as it will go to the record companies. The Commission has therefore inserted a ‘use it or lose it’ clause, which would mean that the performers could recoup their copyright where a record label does not market their recordings further. This would then allow performers to market their own songs.
If neither the record company nor the artist market the recording within a year after the term extension this recording would no longer be protected and freely available for public use. The record companies would be required to set aside a % of sales income and distribute this to performers who at the beginning of the term were bought off with a single payment. The Commission has calculated that the extension would give performers an average of 150 to 2000 euros per year.
Briffa’s commentThese proposals have yet to be adopted however would bring the intellectual property rights of performers in line with that enjoyed by composers and songwriters, giving a term of protection applicable throughout their lifetime. In many cases however there are several different and competing rights in a musical work. The performer may have to share in the royalties generated in a musical work and accept their share of the spoils.
What is not clear is how a performer is able to accurately establish whether the record company is in fact adequately marketing their performances, and what would happen in the event of a dispute. A sudden aggressive marketing campaign by the record company at the first hint of dissent may be one way the record companies get around this.
Briffa deal with all aspects of copyright and intellectual property law. Should you have any questions, please do contact one of the team of lawyers at Briffa on 0207 288 6003 for a free consultation.