has my copyright been infringed?

[bobbie70844]

Hello everyone
this is my first post so apologies if i have posted on the wrong page, please redirect me.

here goes
My daughter is a singer and recently agreed to take part in a charity concert alongside some other performers. when they attended the venue to perform they realised the performance was going to be filmed they were never asked if this was ok or agreed to be filmed

they have just found out that this dvd is now on sale for £10 and are not happy about it especially because none of the proceeds are going to the said charitys involved as the concert never made a profit the sales of the dvd are going to cover costs only

my question is who owns the rights to the dvd is it

A; The person Who organised and paid for the production of it
B; The person Who filmed it
C; The performers

Do the performers have any rights over the distribution of the dvd.

At the performance cover songs were sang which were covered by the venues licence but the dvd will not be covered by any licence and i am concerned who will be responsible for any infringement due to the sale of the dvd

we have asked the person selling the dvds not to do so but he is refusing saying he has the right to sell them and the performers cant stop him
sorry for the long post

[AndyJ]

Hi Bobbie,
You are right to be concerned. There are two separate aspects to this. The first is that under the Rights in Performances Section (Part 2) of the Copyright Designs and Patents Act 1988, a performer's consent is specifically required in order for someone else to make a recording of their performance:

Section 182 Consent required for recording, &c. of live performance.

(1) A performer’s rights are infringed by a person who, without his consent—

(a) makes a recording of the whole or any substantial part of a qualifying performance directly from the live performance,

(b) broadcasts live, the whole or any substantial part of a qualifying performance,

(c) makes a recording of the whole or any substantial part of a qualifying performance directly from a broadcast of the live performance.

There is a further requirement to obtain consent from the performer to release the recording to the public. This is known as the distribution right:

182B Consent required for issue of copies to public.

(1) A performer’s rights are infringed by a person who, without his consent, issues to the public copies of a recording of the whole or any substantial part of a qualifying performance.

(2) References in this Part to the issue to the public of copies of a recording are to—

(a) the act of putting into circulation in the EEA copies not previously put into circulation in the EEA by or with the consent of the performer, or

(b) the act of putting into circulation outside the EEA copies not previously put into circulation in the EEA or elsewhere.

(3) References in this Part to the issue to the public of copies of a recording do not include—

(a) any subsequent distribution, sale, hiring or loan of copies previously put into circulation (but see section 182C: consent required for rental or lending), or

(b) any subsequent importation of such copies into the United Kingdom or another EEA state,

except so far as paragraph (a) of subsection (2) applies to putting into circulation in the EEA copies previously put into circulation outside the EEA.

(4) References in this Part to the issue of copies of a recording of a performance include the issue of the original recording of the live performance.

Note that any consent should be explicitly given, although there may be certain occasions where implicit consent will be deemed to have been given. For example if the organisers of the concert issued terms and conditions which indicated that the performance was going to be recorded, it might be taken that anyone having read these terms had consented to them by actually taking part. But there is a limit to what can be relied on as implicit consent. I think the fact that you say that it wasn't until the actual performance that the singers realised that it was being recorded, makes it clear that there were insufficient grounds for assuming implicit consent.
Lastly on the performer's rights, a performer is entitled to an equitable share of the proceeds from the sale of any recordings:

182D Right to equitable remuneration for exploitation of sound recording.

(1 Where a commercially published sound recording of the whole or any substantial part of a qualifying performance—

(a) is played in public, or

(b) is communicated to the public otherwise than by its being made available to the public in the way mentioned in section 182CA(1),

the performer is entitled to equitable remuneration from the owner of the copyright in the sound recording.

The second issue concerns liability for including copyright material in the recording. This is entirely the responsibiltty of the producer of the recording, who also owns the recording right. If his knowledge of that aspect of the law is as flimsy as his knowledge of the performers' rights I suspect he will not have obtained a licence and so will have infringed copyright in the songs performed. Should you wish to exert additional pressure on him, you could mention that by selling these DVDs with neither the performers' permission nor a valid licence from the copyright holders, he could be facing a criminal prosecution (under Section 198) for which the penalty is up to 6 months in prison and/or a fine of £50,000 or at the very least a demand from the collecting societies (PRSfor Music and the MCPS).

Finally all the perfomers have the additional moral right to be credited on the DVD sleeve notes.

You* could deal with this yourself by bringing the above points to the attention of the producer of the DVD, along with your proposed remedy, or you could instruct a solicitor (and charge your legal costs to the producer, along with any other damages you seek) or you could invite your local Trading Standards office to take action under Section 198A of the Act. But bear in mind they are not compelled to take on the investigation if they think there is insufficient evidence or a poor prospect of a conviction.

*Technically speaking only the performer can seek redress unless they have assigned their rights to someone else, but if your daughter is under 18 you can act for her as she is a minor.

[bobbie70844]

Hi Andy

Thanks so much for the advice, we thought as much just needed conformation.
my daughter has a meeting on friday and we will address this again and see if he comes to his senses without having to take it further.
we actually spoke to our local trading standards today and they have said if we forward his company details they ill put him on a activities watchlist.

This is a brilliant site and as a musician im sure my daughter will use it in the future.

once again thank you

[bobbie70844]

Thought i would post an update, My daughter has attended another meeting and the person in question has told us quite bluntly that he is going to distribute the dvd and he will wait for us to take him to court
i believe my daughter and the other artists can send him a cease and desist letter, hopefully this will work.

[AndyJ]

Hi Bobbie,
I'm sorry to hear that this person is determined to go ahead. Certainly a cease and desist letter is appropriate but as he has already refused to agree to verbal requests, I'm not sure if a letter will change things. Make sure that the letter states that there are two separate actionable events: making the recording without permission (which has obviously already occurred) and selling the DVDs without consent. The cease and desist will only apply to the latter, so you need to specify what action is required over the recording itself.
He probably realises that taking him to court will be expensive and is gambling on you backing down.
You also have the option of contacting Trading Standards, as I explained in my earlier post, although they cannot act until he has actually offered the DVD for sale. Given the facts that you have outlined, a conviction should be relatively simple to obtain because one of the most obvious defence available to him would be that he believed that he had the consent of the performers, and this will clearly not be arguable in light of the meetings and the cease and desist letter. In fact it makes his action in selling the DVD flagrant knowing that your daughter had specifically withheld consent, and therefore more likely to lead to a harsher sentence. As well as the possible prison sentence and fine, he faces having his stocks of infringing DVDs and any manufacturing facilities seized and destroyed. Unfortunately your daughter and her friends would be unlikely to receive damages if it goes ahead as a criminal case.
If you contemplate taking civil action instead, then again I think your chances in court are good, and that both damages and costs would be awarded to you. However it depends on his means to pay whether you actually get any money out of him, and this is factor to bear in mind. At the very least you could obtain an injunction to prevent him selling the DVDs, which if he were to break it could see him being sent to prison.
Good luck, and please keep us up to date on how things progress.
Andy