Performing arts come in various disciplines. For a clear understanding of the meaning of copyright and neighboring rights in brief, it is sufficient to limit ourselves to the categories of (musical) theater, dance, and music.
Copyright and neighboring rights: two of a kind
Everything seen and/or heard on stage is eligible for copyright and/or neighboring rights protection: sets, costumes, direction, lighting, music, singing, dance, etc.
The main difference between copyright (opens in new tab) and neighboring rights (opens in new tab) is the so-called 'subject of protection.' Copyright protects the personal, creative creation, which is referred to as a 'work.' Neighboring rights protect the creative performance of the work, also known as the 'performance.' The composer is the creator of the work (the composition), and the musician is the performer of the work (the concert).
At first glance, this seems like a clear distinction, but in reality, it is far less straightforward. After all, creativity is involved in both the creation of the work and its performance. Internationally, this is approached in different ways. For example, in the Netherlands, a translator receives copyright protection, but a performer only receives neighboring rights protection.
Copyright protects the personal, creative creation, which is referred to as a 'work.' Neighboring rights protect the creative performance of the work.
Copyright: work and creator
Copyright belongs to the creator of a work and lasts up to 70 years after their death, as the main rule states. The main creators and works in the performing arts are, in no particular order: the text author, the composer, the choreographer, the set, costume, and lighting designer with their respective creations; the theater and song text, the composition, the choreography, and the designs for set, costume, and lighting.
Creator(s) employed
The main rule does not apply when the creator is employed by a company. In that case, (in principle) the employer is the creator.
Independent creators (freelancers)
A performing arts organization working with creators who are not employed must always ensure that the copyright is transferred, or that a license is obtained for the duration the work is in the repertoire (and/or is intended to remain).
Joint work
Sometimes a performing arts production is created in collaboration with multiple creators. When their creative contributions cannot be separated, a joint work is created to which they are jointly entitled. However, in most cases, the components can be separated, and each is entitled to their own creation.
Under direction and supervision
Although a (part of a) production may be created under the direction and supervision of a particular person (director, conductor, scenographer), this leader is not considered the creator under copyright law.
Permission required
Copyright protection of a work means that permission is required to use the work, for example, through performance or staging in a venue. Granting this permission is also referred to as granting a license. This can be done by the creator themselves, or through their agent, publisher, or rights organization.
Exploitation rights
The stage performance or production rights are among the so-called exploitation rights, which also include the right to make audio and/or visual recordings and the use of such recordings in promotional material and distribution outside the venue through streaming, broadcasting, and similar means.
Moral rights
In addition to exploitation rights, copyright protection also includes a second category, which is moral rights. For the performing arts, the most important moral rights are the right to attribution (the 'credits') and the right of the creator to object to 'unreasonable' modifications and mutilations of their work.
Adaptation
An important but sometimes challenging right in practice is the adaptation right. The right to modify a work, for example, through a contemporary translation or abridgment, falls under exploitation rights unless the adaptation is so significant that it constitutes an unreasonable modification or even mutilation; in such cases, it falls under moral rights, which can always (even after the premiere) be exercised.
In practice, there is almost never a literal performance or staging of a work. Directors, conductors, musicians, dancers, and actors leave their personal mark on the work, while granting permission for the performance often includes a condition that the work cannot be modified (faithful performance of the text, etc.). In theory, this leaves little room for a pronounced personal interpretation, let alone for radical changes, satire, and parody.
Neighboring rights: performer, performance, and recording
Neighboring rights protect the performance of a work, the actual contribution to a production. This contribution is usually agreed upon in a written contract with the actor, musician, or dancer.
If recordings are made and these recordings are exploited, for example, through streaming or broadcasting, these neighboring rights play an important role. For creating the recordings, the performing artist must give their permission. Subsequently, the performer is entitled to compensation when the recording is exploited. The permissions and compensation claims are usually agreed upon in the performer's employment or freelance contract and, in some cases, in the Collective Labor Agreement for Theater and Dance.
Streaming performing arts producer becomes film producer and distributor
The performing arts producer who wants to stream a production must first record it. When it involves audio-visual recordings, a special legal arrangement automatically applies, namely the 'film copyright.' The main consequence of this is that the exploitation rights for all creative contributions specifically made for the recording of this 'film work' automatically go to the producer, in exchange for a compensation claim for those who contributed.
Author: Marcel de Zwaan
More articles per topic
