Compiling a program for a public vocal performance in a certain venue may be exciting and inspiring, but this apparent artistic endeavour has legal implications, particularly copyright implications for both the performer and the owner of the venue.
Section 23(1) of the Copyright Act 98 of 1978 (the Act) provides that “copyright shall be infringed by any person, not being the owner of the copyright who, without the licence of such owner, does or causes any other person to do, in the Republic, any act which the owner has the exclusive right to do or to authorise”.
A song actually comprises two separate works, namely the melody, which is a musical work and the lyrics, which is a literary work.
The owner of copyright in respect of a musical or literary work has the exclusive right to do, or to authorise the doing of any of a number of acts in the Republic, including, but not restricted to, the making of a reproduction of the work in any manner or form, publishing the work if it was hitherto unpublished, performing the work in public, broadcasting the work and making an adaptation of the work.
A program often includes original songs, arrangements of songs and cover versions, each with its own copyright implications.
Where the singer is the author of both the melody and the lyrics of all the songs included in the program to be performed, the situation is uncomplicated and the singer, being the author of the melody and the lyrics, is the owner of the copyright in respect of the musical work, as well as the literary work, notwithstanding the standard or artistic appeal of these songs (provided of course, the singer is a South African citizen or domiciled or resident in South Africa, the material is original and has been reduced to material form, alternatively, a national of a signatory country to the Berne Convention and as such entitled to the same copyright protection as is afforded in South Africa to a South African citizen, or person domiciled or resident in South Africa).
If, however, someone other than the singer is the author of either the lyrics or the melody, permission is required from either the composer of the melody or the lyricist, as the case may be, to perform the song, failing which, the performance may constitute copyright infringement in respect of either the musical or the literary work.
The owner of copyright in respect of a musical work has the exclusive right to do, or to authorise, any of a number of acts in respect to the work in the Republic. One of these restricted acts is making an adaptation of the work.
In terms of section 1(1)(b) of the Act, “an adaptation in relation to a musical work includes any arrangement or transcription of the work, if such arrangement or transcription has an original creative character”.
Making an arrangement of a musical work entails making an adaptation of the work for presentation in a form other than its original form. This can, for example, entail rewriting the music by adding new thematic material, or changing the style of the song, or changing the harmonic progressions or elaborating on the lead sheet by changing it into a completed arrangement, detailing the elements of accompaniment.
From an interpretation of the Act it appears that the owner of the copyright in the musical work will usually also be the owner of the copyright in respect of the arrangement, provided the arrangement has an original creative character”. On the other hand, section 2(3) provides that “a work shall not be ineligible for copyright by reason only that the making of the work, or the doing of any act in relation to the work, involved an infringement of copyright in some other work”.
This leaves open the theoretical possibility that another person can become the owner of the copyright that vests in an arrangement of a musical work.
A cover version is a performance of a previously recorded and commercially released song. It is, accordingly, a work in respect of which the potential performer in the scenario of compiling a song list for a public performance is neither the owner of the copyright in respect of either the music or the lyrics, nor becomes the owner of the copyright in the particular rendition of the work.
Performing a cover version entails performing an act in respect of which the owner of the copyright enjoys exclusivity. It is, accordingly, copyright infringement to perform the song without permission.
As far as the copyright implications for the owner of the venue where the performance is to take place, is concerned, the Act provides in section 23(3) that “the copyright in a literary or musical work shall be infringed by any person who permits a place of public entertainment to be used for a performance in public of the work, where the performance constitutes an infringement of the copyright in the work”. This, however, does not apply in a case where the person permitting the place of public entertainment to be so used, was not aware and had no reasonable grounds for suspecting that the performance would be an infringement of the copyright.
In light of the above, it is clear that a licence is required to perform any act in respect of a work in respect of which someone else is the owner of the copyright that vests in the work. Obtaining a licence may seem to be a daunting task - where does one begin?
If the lyrics are, for example, a poem that is found in a book, the publisher of the edition is likely to have details of the owner of the copyright that vests in the poem. The duration of the copyright that vests in a literary work is the duration of the author’s life, plus 50 years, calculated from the end of the year in which the author died, unless the work, or an adaptation of the work has been performed in public, publicised or broadcast during the lifetime of the author. If any of these acts have been performed during the author’s lifetime, the term of the copyright is 50 years from the end of the year in which the first of these acts have been done. If the relevant 50 years have expired, the work becomes part of the public domain and no permission is required to perform an act in respect of a work that is in the public domain. It is, accordingly, permissible to use, for example, one of Shakespeare’s Sonnets without obtaining permission to do so.
Ascertaining who the owner of the copyright subsisting in a musical work, or of a song recorded by a foreign or local artist, which is the subject of a cover version, is concerned, may be less of a daunting task.
The Act provides for the establishment of collecting societies, such as SAMRO and DALRO, to name but two. These collecting societies issue licences to regular users of music. In practice, owners of formal performance venues, such as universities, theatres, restaurants and other venues which regularly stage live performances, require performers to submit a song list. These song lists are then submitted to the collecting societies. The contents of the song list are tested against the registered clients of these collecting societies. The collecting society may issue a performance rights licence and then calculate performance royalties payable to the owners of the copyright in respect of the works.
Through this procedure, owners of formal performance venues and performers can ensure that they do not infringe copyright.
Copyright legislation is aimed at protecting the rights of creative people and creators should reciprocate by ensuring that they do not infringe copyright.