1. Adaptation
Adaptation refers to modifying a work for the purpose of performance, execution, or, for example, filming. This requires the permission of the creator (the rights holder) of the work in question (composition, theater text, etc.). In copyright law, adaptation is referred to as a ‘derivative work’ or ‘modified reproduction’.
2. Agent
The agent is a representative of the creator (rights holder) of a work (book, theater text, composition). The agent does not hold rights themselves but grants permission to use a work.
3. Employment Contract
See employment relationship. See: CAO.
4. Copyright
Copyright is the property right (an exclusive right) to a work. Examples of works include texts, compositions, choreographies, set designs.
Copyright can be divided into two categories: exploitation rights and moral rights.
Examples of exploitation rights include the right to perform or execute a work in a venue, to adapt the work, to create an audio or audiovisual recording of it, to broadcast the recording on radio, TV, or make it available on a website or platform. Exploitation rights can be summarized under the term of the right to reproduce and/or make the work public.
Moral rights concern rights that guarantee ‘the highly personal bond between the creator and the work’. Examples of moral rights include the right to object to mutilations or unreasonable modifications of the work and the right to be credited as the creator when the work is reproduced, performed, or made public in any other way.
5. Duration of Copyright Protection
The standard duration of copyright protection is 70 years after the death of the creator. In addition to this main rule, a common rule is that the duration is limited to 70 years after the publication of a work. This applies to anonymously published works or works where a legal entity is considered the creator (see Employer’s Copyright).
6. Duration of Neighboring Rights
Neighboring rights are generally protected for 50 years, with the important exception of phonograms (recordings of sounds only), which are typically protected for 70 years.
The start date of protection varies by specific right and category. It is therefore important to determine when protection began in the relevant case and when it will end.
7. Modification
Modifying, shortening, rearranging, translating, filming, etc., a work and/or incorporating or combining it with another work falls under the exclusive right of the creator (copyright holder) and therefore requires their permission.
If a work has been modified and you wish to use this modification, you must be cautious because the original work (Shakespeare, Bach) may no longer be protected, but the modification might still be. In such cases, you are free to create a new modification of the original work. For the use of the existing, still-protected modification, you need permission from the modifier.
8. Fair Compensation
The Copyright Act and the Neighboring Rights Act stipulate in various places that the creator/(neighboring) rights holder who grants an exploitation right (see exploitation rights under ‘copyright’) is entitled to fair compensation.
In the license agreement for the performance or execution of the existing work, and in the assignment agreement for creating a modification, this is generally provided for (through a royalty and/or the explicit provision that the fair compensation is included in the fee and the compensation for the transfer or license).
For creators in employment, the employer’s copyright generally applies, and the employee is not entitled to fair compensation. For the employed neighboring rights holder, there is no legal fiction (the neighboring rights holder remains the owner), but the employer is generally authorized to exploit the neighboring right of the employee. See: CAO Theater and Dance.
Once an audiovisual recording of the stage production is made, the special regime of film copyright comes into effect.
9. CAO Theater and Dance
The CAO Theater and Dance [external link?] includes a special provision (art. 6.5, 6.6) regarding participation in the recording (audio and/or video) of a performance and the compensation claim for the (digital or otherwise) reuse of this recording. The provision offers guidance and support in making agreements with freelancers and with creators and performers in employment contracts to which the CAO does not apply (other sectors within the performing arts).
10. Collective Management Organization (CMO)
Collective Management Organizations (CMOs) are organizations that collectively exercise certain rights for a large number of rights holders. The most well-known and relevant CMO for the performing arts sector is Buma Stemra, which manages, among other things, the right to publicly perform music.
11. Collective Rights
See also CMO. When using new work, it is important that a clear arrangement is included in the assignment agreement regarding the permission for and compensation of the use of the new work. This arrangement must be aligned with the potentially applicable collective claims; the user must ensure that the creator/rights holder is authorized to make agreements about the use and must avoid unintentionally paying both the creator and the CMO for the same use.
12. Digital Reuse
Recording and offering the recording via digital media, such as social media, the organization’s website, and other platforms, is referred to as the digital reuse of the performing arts production.
As a performing arts producer, you become a phonogram and/or film producer or a content uploader/provider, and the producer of the stage production faces different rights and obligations (permission/compensation) when creating and presenting the recording.
13. Exploitation Rights
Copyright is divided into moral rights and exploitation rights. Exploitation rights include all conceivable, existing, and future forms of exploitation (= use, whether or not for payment) of a work.
14. Film
As soon as moving images are involved, it is considered a film in the copyright sense. Every audiovisual recording is a film and is therefore subject to the special legal provisions that apply: film copyright.
15. Film Copyright
The audiovisual recording of a performing arts production is a film and is therefore subject to the special provisions of the Copyright Act regarding ‘film copyright’. The main deviation from the normal provisions is that the copyrights on contributions to the film work are presumed to have been transferred to the film producer. The co-creators (including the director, camera operator) are entitled to fair compensation for the exploitation of the film work.
These rules do not apply (due to a specific legal provision; art. 45d paragraph 1 Copyright Act) to the creators of music and accompanying text, whether intended for the stage or (also) for the film.
16. Film Producer
The exploitation rights to the film work are legally (art. 45d) presumed to have been transferred to the film producer. According to the Copyright Act, the film producer is the person responsible for the creation of the film. Although the performing arts producer often hires an executive producer in the form of a service company, it is conceivable that the performing arts producer is considered the film producer.
This depends, among other things, on financing, bearing the risk of creating the film work, and engaging the creators.
It is advisable for the performing arts producer to explicitly agree to the transfer of all rights with the AV company and the individual co-creators.
17. Film Director
As a theater director, you are considered a performing artist under copyright law. However, as a film director, you are considered a creator under copyright law.
This is important when the audiovisual recording is more than just a mere registration, and the theater director also acts as the director of the film work.
In addition to the right to fair compensation, the director also has important collective rights.
Additional agreements between the performing arts producer and the director who also directs the film are therefore desirable.
18. Grand Rights
The dramatic performance or execution of a musical work (e.g., an opera or musical). Permission (a license) must be arranged with the agent, the music publisher, or directly with the creators (composer, librettist). See also: CMO
19. Small Rights
The simple performance of a work, without a dramatic execution. The right to do so is managed by Buma and also applies when a musical dramatic work (grand work) can only be listened to, such as in a radio broadcast, audio stream, or concert hall performance. See also: CMO
20. License
A license is the copyright synonym for permission to use a copyright-protected work.
A license must be distinguished from the transfer of all or part of the copyright.
The license agreement is a contractual relationship between the user (licensee) and the rights holder (licensor). Sometimes this is done through an intermediary, such as an agent or publisher. A license agreement often includes various terms and conditions, such as duration and the possibility of terminating the agreement.
21. Creator
The copyright term creator refers to the person considered the author of a specific work. A work exists when a (mental and creative) creation is perceivable and sufficiently concrete and determinable. Ideas, formless concepts, unworked thoughts in the creator’s mind, are no more protected than a style; only a concrete, determinable creation, whether or not ‘in the style of’, can be considered a work.
Examples of copyright creators include: the (theater) author, composer, librettist, translator, set, costume, and lighting (plan) designer, and choreographer. When using images: the photographer and cameraman.
The director, scenographer, dramaturg, and conductor are not considered creators under copyright law but fall under neighboring rights.
See also: Copyright
22. Neighboring Rights
The Neighboring Rights Act (WNR) recognizes various categories of rights holders, including performing artists.
The performing artist is the one who performs a copyright-protected work (actor, musician, dancer, conductor, director) and has certain rights to this performance.
The most important right in digital reuse is the required permission to record a performance and the entitlement to fair compensation for the exploitation of this recording.
For performing artists employed in the theater and dance sector, this is regulated in art. 6.5 and 6.6 of the CAO Theater and Dance. For others (not employed or from other sectors), it could be agreed that the relevant provisions also apply to them.
23. Assignment Agreement
The agreement granting someone the assignment to create or execute a specific work differs from the employment contract mainly in that the contractor has a certain degree of independence (no employer-employee relationship). The client does not automatically become the owner of the copyright or neighboring rights of the contractor. Cooperation, permission, and compensation must be explicitly agreed upon and aligned with potentially applicable collective rights.
24. Transfer
When copyright is transferred, the user becomes the owner of (a portion of) the copyright. In principle, the new owner has complete freedom. See also: License
25. Moral Rights
See: Copyright. See: CMO
26. Rights
In common usage, the term ‘rights’ is used both for the copyright-required permission (‘having the rights’) and for the copyright-required compensation (the entitlement to a share of the proceeds; the royalty).
27. Recording
The term recording refers to capturing the performance or execution and requires the permission of copyright and neighboring rights holders (regulated in the CAO Theater and Dance in art. 6.5, 6.6).
If the recording includes more creative elements beyond mere documentation, you must consider that there may be additional rights holders and rights beyond those relevant to the stage performance. See also: Film and Film Copyright
28. Synchronization
When combining images with music to create a new production, permission is required from the copyright and neighboring rights holders.
If the music is used as a background, this can be arranged through Buma Stemra.
However, if the existing music is dramatized or integrated into the performance, a report to Buma of the used music and payment of the applicable royalty is not sufficient to obtain the required permission. See also: CMO
29. Theater Director
Under copyright law, the theater director is not considered a creator and therefore not a copyright holder. The theater director is regarded as a neighboring rights holder. See also: Neighboring Rights
30. Indemnification
In every agreement through which you, as a performing arts institution, acquire the right to use a work, whether through a license or transfer, it is advisable to include an indemnification clause.
The indemnification ensures that if others than your contracting party claim to have better rights, your contracting party is liable for, among other things, damages and costs.
31. Work
32. Employer’s Copyright
