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ESDAWHAT IS A RECORD PRODUCER?

6. RIGHTS OF MUSIC PRODUCERS AND PERFORMERS

In the United Kingdom, current legislation allows a performer to prevent others from recording and/or broadcasting so-called 'qualifying performances' without that performer's consent. This means that when a performer grants a record company the right to record his performances, there is an opportunity, at least in theory, for that performer to demand from the record company a share of the income received by the record company from the performance, broadcast and rental of his recorded performances.

In reality, the stronger bargaining power of record companies invariably enables them to require that performers contractually forego any right to receive a share of this income.

Similarly, contracts of engagement between record companies and Music Producers require the Music Producer to acknowledge that all rights (including economic rights) in the re1evant sound recordings are owned by the record company alone. Whatever rights of authorship may otherwise have been vested in the producer are completely removed by those contracts of engagement. Those contracts never contain a contractual right for the Music Producers to receive part of performance, broadcast and rental income from the record company.

As under the laws of the EU performers are entitled to economic and other rights which transcend the provisions of their recording agreements with record companies, it would be no more than fair and a recognition of commercial reality to ensure that Music Producers enjoy similar rights in relation to sound recordings produced by them.

This fairness and commercial reality has, to some extent, already been recognised in Germany where Section 73 of the Copyright Act defines 'performers' (and thus extends protection to) as persons who recite, perform or represent a work or else participate in an artistic manner in the recitation, performance, or representation of the work. This definition extends legal protection to film directors and Music Producers and enables them to enjoy significant economic and other rights in consequence. It is perhaps ironic that Music Producers from the United Kingdom who produce sound recordings in the United Kingdom do not receive any income from the performance and broadcast of those sound recordings in the United Kingdom but are often able as of right to claim a share of performance and broadcast income arising from the performance and broadcast of those same recordings in Germany. It is also ironic that Music Producers from the UK are acknowledged by the German collection society GVL whereas German producers, when they are called 'Tonmeisters', are not.

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