Performers' Rights
Performers' rights are particularly relevant for waiata and kapa haka performances.
Performers' rights and mātauranga Māori
Performers' rights can be used to protect the expressions of some forms of Mātauranga Māori, for example, the performance or recording of performances (sound or visual), such as waiata and kapa haka.
What are performers' rights?
Performers' rights are a type of IP right known as a "neighbouring" or "related" right, as they sit next to or are related to copyright. Performers' rights are different and independent from any copyright that may exist in a copyright work that is being performed. For example, performers of Ngahuia's waiata (see the copyright case study) would have rights that exist separately from Ngahuia's copyright in her original composition. Performers' rights are provided for in the Copyright Act 1994.
Performers' rights are particularly relevant for waiata and kapa haka performances.
What rights do performers have?
Performers have the right to authorise or prohibit certain direct or indirect uses (forms of exploitation) of their performances, such as:
- recording of their performance;
- broadcasting or including their performance in a cable programme service;8 and
- copying a recording of their performance.
Once a performer has consented to a particular form of exploitation of a specific performance (this could include recording, broadcasting or copying the performance), then he or she essentially loses control over that particular performance, because consent cannot be withdrawn once the permitted exploitation of that performance has taken place. In addition, once consent is given, a second person may in turn exploit that performance, provided they stay within the boundaries of the first consent.
Which performances are protected?
Protected performances include dramatic performances, musical performances, readings and recitations of literary works and variety act performances.
Performances are protected in audio (such as sound recordings) and audiovisual media (such as films), regardless of whether the performers are principal performers or extras, amateur or professional, or involved in the entertainment industry or in another calling, skilled or unskilled.
What performances are not protected?
Performances that are not protected include those by the students or staff of an educational establishment, news readings or other information delivery, sporting activities, and participation in a performance by members of an audience.
How are performers' rights infringed?
Performers' rights are infringed if a performance, or a substantial part of a performance, is used without the performer's consent. The law distinguishes between the exploitation of "live performances" and performances that are in audio and audiovisual media. Infringing performers' rights in live performances includes recording or broadcasting a live performance. For example, when you attend a live concert, you are generally not permitted to record or take photographs of it.
A performer's rights are also infringed when a recording of a performance that has been made without the performer's consent is broadcast, shown, played, copied, imported or sold.
Who owns performers' rights?
The first owner of a performance is always the individual performer. Performers' rights are granted to each performer for each performance made. In this respect, there is no concept of group ownership and members of a group do not have collective rights in a group's performance. For example, in a kapa haka ropu each member has individual rights in his or her performance as part of the overall kapa haka performance. They also have rights in each performance no matter how many times the performance may be repeated or how similar they may be.
Although there is no provision for the assignment of performers' rights, in practice, however, producers generally require performers to consent to the proposed form of exploitation of their performances – whether it is to be broadcast, or reproduced on an album, for example. In this way, a producer will then be in much the same position as if a performer had transferred those rights to him or her by assignment.
Are there any exceptions to performers' rights?
You are allowed to do a few things without infringing performers' rights. These include:
- the incidental copying of a performance or a recording of a performance in a sound recording, film, broadcast or cable programme;
- fair dealing with a performance or a recording of a performance for the purposes of criticism, review or reporting current events; and
- copying a recording for teaching purposes.
Making a recording of a performance or copying a recording of a performance is also permitted if it is done for a person's "private and domestic use".
How long does protection last?
Protection for performers lasts for 50 years from the end of the calendar year in which the performance takes place.
Other protection for performers
Performers' rights are supplemented by protection available under other branches of the law. The three main categories are: contract, copyright and actions that protect a performer's reputation. Performers who wish to protect their performances under these categories must, however, establish their rights in accordance with the requirements for that category.
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