As hot new bands like the UK’s Wet Leg sang songs at South by Southwest in Austin recently, industry players debated whether it’s actually the song or the singer that makes the single swing to the top of the pop charts, and how to split the money.
Category: Uncategorized
Facebook Paying Musicians Up to $50,000 for Live Audio Performances
Facebook is paying musicians up to $50,000 to use its Clubhouse clone feature – Live Audio Rooms.
Back in July, CEO Mark Zuckerberg promised that his company would establish a $1 billion creator fund to pay talent through 2022. Now a new report from The Information details how some of that money is being spent. Facebook is paying musicians up to $50,000 to use Live Audio Rooms.
The Business Model That Makes Streaming A Black Hole For Musicians
Credit where it’s due!
Most of what’s in this piece has been published in various trade sources over the past couple of years, but what really prompts putting it together as a single piece was Nora Germain’s article You Have No Idea How F****d Streaming Really Is, published on Medium on Dec. 10, 2018. If you haven’t yet read it, you probably want to read it first. This effort aims to complement the well taken points Nora made. She wrote as a professional musician defending the creative work of musicians, arguing that what is going on with the streaming platforms is horrific, and making the case that music has value that should be paid for. I’m endeavoring to describe the underlying business dynamics that have created the music monster we’re now dealing with. I’m no musician, but have been in the music industry for twenty years: operated retail and distribution music web sites, produced three albums, and most recently developed and sell e-commerce software for music.
ECSA
Appeals Court Deals Loss to Chuck Close and Other Artists Seeking Resale Royalties
Artists who sold major paintings or sculptures in 1977 are in luck. Other artists who sold work before or after that year not so much thanks to a ruling on Friday from the 9th Circuit Court of Appeals that essentially dooms their hopes of collecting royalties from resales.
Judge Sides with Inventors in Massive Intellectual Property Case Against Disney, Fox, Paramount and Others, Allowing Cases to Continue
SAN FRANCISCO – A judge overseeing a massive intellectual property case against entertainment giants Disney, Fox, Paramount, Marvel Studios, and Crystal Dynamics issued two orders on June 18, 2018, denying the defendant companies’ motions to dismiss and for summary judgment, allowing the cases to go forward, according to attorneys at Hagens Berman representing the inventor.
AV Remuneration Study
INTERNATIONAL LEGAL STUDY ON IMPLEMENTING AN UNWAIVABLE RIGHT OF AUDIOVISUAL AUTHORS TO OBTAIN EQUITABLE REMUNERATION FOR THE EXPLOITATION OF THEIR WORKS Study updated – May 2018
Submitted by Prof. Raquel Xalabarder
Intellectual Property Chair – Universitat Oberta de Catalunya (UOC), Barcelona.
EXECUTIVE SUMMARY
authors of audiovisual works are granted exclusive rights to exploit their works. however, they rarely obtain equitable remuneration for the entire exploitation.
despite international consensus that authors deserve to be fairly remunerated for the exploitation of their works, audiovisual authors seldom receive remuneration in the form of royalties or other proportional payments along the entire chain of exploitation. this is especially true in regards to new markets for online exploitation that, despite growing rapidly, do not generate additional remuneration for audiovisual authors.
audiovisual authors’ remuneration depends largely on the contracts signed with the producer and these contracts fail to secure them an equitable remuneration for the entire chain of exploitation of their works.
Signed before the audiovisual work is created, production contracts tend to convey a full transfer of exploitation rights in favour of producers, typically in exchange for a buy-out or lump-sum that also covers commissioning the authors’ contribution. follow up payments, along the exploitation of the work, are rarely agreed upon in production contracts. this ultimately deprives audiovisual authors of equitable remuneration in all markets of exploitation of their works…
Continue reading this short guide: 4-pages-av-remuneration-study
Alternatively by downloading the pdf below.
HOW SONGWRITERS AND COMPOSERS ARE CONTRACTED AND PAID
The function of a music publisher on behalf of a songwriter or composer is threefold: To fund the production of original works; to promote the works by seeking exploitation opportunities; and to manage the licensing of rights and the resulting income, paying the money to the author according to contract.
Different cultures prevail as between a record label and a publisher. A song can have a much longer life than a single track, so the impulse in the label is to maximise earnings from the moment of release, knowing there is not likely to be a long exploitation life ahead. In contrast, for music publishers, because of the combined revenue opportunities of film and tv usage, advertisements and cover recordings by a range of artists, it is the longevity of a song that drives the business – though a huge hit by a new artists will bring out the chequebooks from the off because of the value of royalties generated by the song’s communication to the public (such as broadcasts).
There are independent music publishers who do an excellent job nurturing their catalogues. But in a marketplace where three major companies dominate – Sony/ATV, Universal Music Publishing and Warner Music – it is difficult to see how effective promotion can be for the “majors” when they own hundreds of thousands of songs which are being “promoted” by internal promotional teams. It is quite a task to secure song placements in film, tv, games, ads, and cover versions by other artists for every song in the majors’ catalogues.
There is a key principle embodied in the structure of rights and revenues from music publishing. While a label pays a royalty only after recoupment of an advance, acquires complete control of the sound recording copyright, controls a performer’s services but CMO income is not guaranteed, it is different for songwriters and publishers.
Firstly NOT ALL the rights in the songs are granted to the music publisher. The communication to the public right (which includes the making available right) is granted by the songwriter to the songwriter’s local CMO. The music publisher acquires all the other strands on the copyright bundle but not the communication to the public right. (Check out the section on Collective Management Organisations.) The publisher has only a right by contract to share in the revenue that this right generates, but not ownership of the right itself.
In every country but the USA the songwriter’s assignment to their local CMO is global and exclusive. The effect of this (everywhere but in the USA) is that the CMO issues the licences, shares data with other countries’ CMOs and collects domestic income from domestic licensees and foreign income from foreign CMOs. Nobody but the CMO can issue a licence or collect income. In the USA a songwriter’s assignment is non-exclusive which enables the publisher, subject to the express terms of the individual songwriter’s contract, to issue license direct to users. This does not always work to the benefit of the writers……
The second difference between a performer’s situation with a label and a songwriter’s with a publisher is the revenue flow and the sources. A performer will receive some income – after their advance – from a CMO (see How Performers are Protected and Paid in the Library) but only in countries where the law makes this possible. But a songwriter will always receive a minimum of 50% from CMO in nearly every country in the world, and from the moment their songs start to be exploited. This revenue comes direct from the CMO and cannot be used by the publisher for recoupment of any advance. The other 50% is paid by the CMOs to the publisher and it is that half plus other income the publisher collects from the rights they DO own, that recoups any advance paid to the writer. It is because of this contractual right to income that publishers have Board representation at CMOs. The writers who share the Boards of the CMOs often have to fight hard to keep the writers’ interest to the fore in policy and distribution decisions. Be surprised.
Publishers customarily pay an advance and may contract for a series of option periods during which a songwriter delivers a pre-agreed number of works. This is the model if the songwriter is either a performer as well (thereby guaranteeing song income from live performances or from the copying of the song on recordings), or has a reputation as prolific, or the publisher has sufficient confidence in their abilities. A writer will continue to have an exclusive relationship with the publisher for as long as the options are exercised and after an agreed period of time is free to take their song writing skills elsewhere. But the copyrights that the songwriter has created and has assigned to the publisher (as ownership of most but not all of the bundle of rights) might stay with the publisher for the full period of copyright – life of the author plus a number of subsequent years (plus 50 to 70 depending upon the country’s statutes). Writers with strong negotiating status can agree that the rights will revert to them after a pre-agreed time. And writers that are very powerful can do deals whereby they engage only the publishers’ services of promotion, funding and administration, but do not pass ownership of the copyrights across.
It is the publisher’s responsibility to manage the licensing of the works for usage not just by an original singer/songwriter, but to find cover versions by other artists or use of the songs in ads, films and the like. Revenue from the copyrights assigned to the music publisher will be generated every time one of the so-called acts restricted by copyright takes place: copying (onto a CD, DVD, into a film or ad, copying and printing sheet music or from income from arrangements/adaptations, and the publisher’s 50% from CMOs.
The share of revenue between a publisher and a writer is very different from the customary level of royalties from performers. The royalty split will be anything from 50/50 to 80/20, and can be 90/10 for the very successful. So, remember that 50% that a publisher gets from the CMOs? Well, after recoupment of any advance, the publisher may have to share a portion of that with a songwriter to conform to the royalty split agreed by contract. Old contracts still prevail where it is a strict 50/50 split. But more modern contracts will oblige the publisher to give say 75% of income from their revenues to the songwriter – so most of income from copying CDs and DVDs for example is paid to the writer.
And where that 75/25 split applies to the income from communication to the public – live performance, radio, tv and streaming – the publisher will, after recouping the advance, have to use some of “their” 50% to top up the 50% the writer has already received. So, in the case of 75/25, the publisher will have pay onward half of their 50% (ie 25% of the gross) to bring the writer’s share up to the agreed 75% in the contract.
From this one can see that in a band, it is the person who writes the songs that will be earning between 8 and 11 times as much as the band members signed only to the record label as performers. One very good way to keep a band cohesive is to agree – up front – to share song writing income, or credits and income, equally among all members of the band. That will leave “musical differences” to be the basis for disputes.
A publishing contract has approvals provisions, so writers may be able to influence how their music is used in commercials for example. The contract will identify the length of the option periods, how often the publisher accounts, the rights of audit (because auditing is essential to make sure accounting is correct),and how long the publisher will own the copyrights after the actual contract is finished.
One last word about streaming. Digital services have to acquire music licences from both labels and publishers – for the recording and the song. For the songs the services have to acquire the right to communicate to the public from the CMOs and the right to copy the songs from the publishers.
The act of downloading a song uses the copying element of the copyright as well as a communication to the public. The money from downloading is weighted to allocate more to the copying element than the communication. This has helped publishers recoup advances that used to be recouped from revenues created by copying CDs – a market that has dived since the digital revolution.
But for streaming one might expect that communication would take the lion’s share of every dollar, and the transient copy be a minor part of the allocation. In some cases this is indeed true. But increasingly, powerful publishers, have pressed CMOs to agree that the weighting should be 50/50, for communication/copy. One can see that the challenge of recoupment from diminishing copying revenues might prompt this commercially, but those contractual “three little words” (see Shocking Facts) tip the scales in favour of publishers. Remember, unless a publisher can match the money “directly and identifiably” to the individual songs, no payment will be made to the writers. Added to that the internal song identifiers used by publishers being different from those used by CMOs, and there remains an inbuilt disincentive for publishers to maintain accurate data internally. Or data and identifiers that match those held by the CMOs. Lump sums monies that cannot be exactly matched to individual songs in the catalogue can be retained, which is good news for publisher executives’ bonuses and shareholders.
Fair Digital Deals Declaration
“The big print giveth and the small print taketh away. ”
– Tom Waits
LABELS’ FAIR DIGITAL DEALS DECLARATION
We make the following declaration in connection with the distribution of recordings in digital services.
We will:
- Ensure that artists’ share of download and streaming revenues is clearly explained in recording agreements and royalty statements in reasonable summary form.
- Account to artists a good-faith pro-rata share of any revenues and other compensation from digital services that stem from the monetization of recordings but are not attributed to specific recordings or performances.
- Encourage better standards of information from digital services on the usage and monetisation of music.
- Support artists who choose to oppose, including publicly, unauthorized uses of their music.
- Support the collective position of the global independent record company sector as outlined in the Global Independent Standard below.
We wholly disapprove of certain practices which leave artists under-recompensed and under-informed in the digital marketplace and will work together with the artist community to counter these practices.
Signed on behalf of [Label]
[Print name]
[Date]
International Council of Music Authors (CIAM)
International Council of Music Authors (CIAM) http://www.ciamcreators.org/
AEPO-ARTIS
AEPO-ARTIS
www.aepo-artis.org
SCAPR (Societies’ Council for the Collective Management)
GESAC (European Grouping of Societies of Authors and Composers)
ECONOMIC ANALYSIS OF SAFE HARBOR PROVISIONS
Introduction
- A new class of website has arisen during this century that is based on users uploading materials (copyrighted and not) that other users can consume. These sites are described in several different ways, but I shall refer to them as user uploaded content (UUC) sites. The largest such site, YouTube, has well over a billion users and is the largest music streaming site in the world, as well as streaming other types of content.
- In the 1990s, prior to the emergence of UUCs, legislators were setting up rules for businesses on the Internet and were asked to help nascent Internet Service Providers (ISPs) by weakening traditional copyright laws with respect to copyright materials that might be uploaded to ISPs. Legislation was created that included provisions to help ISPs avoid being blamed for copyright infringement undertaken by their users, and a key component in doing so was the “safe harbor” which, as the name implies, allowed ISPs to avoid copyright liability as long as the ISPs followed certain rules, the most important of which is known by the term “notice and takedown,” essentially requiring them to remove infringing works quickly after being notified of such infringement.
- The safe harbor has become a contentious issue as music copyright owners feel that the safe harbor has allowed rich and powerful UUCs to arise while paying either nothing or what appear to be unusually small amounts to copyright owners, even though a large portion of the UUC users consume copyrighted music. UUCs argue that this is not the case at all.
- In the following report, I examine the intended purpose of the safe harbor, the nature of the UUC market that has arisen under the auspices of the safe harbor, and the economic consequences of the safe harbor.
Nielsen 2017 year end music report us
INTRODUCTION
Welcome to the Nielsen Music Year-End Report, which examines the trends shaping the music industry with de nitive consumption gures and charts.
The surge in streaming continued throughout 2017, topping all forms of music consumption. The industry had another record-breaking year, with 12.5% growth in music consumption year over year.
For the rst time ever, R&B/Hip-Hop became the most dominant genre in the U.S., with nine of the Top 10 most-consumed songs coming from that genre, including breakthrough hits by new artists Migos, Post Malone and Cardi B.
SAA 2nd Edition White paper on AV Authors Remuneration
INTRODUCTION
The audiovisual industry makes a vital contribution to Europe both economically and culturally. There are approximately one million people directly working in the European audiovisual industry, an industry with ¤122 billion in revenues in 2013. 1,551 feature films were produced in 2013, box office receipts were ¤6.28 billion and a staggering 8,828 television channels and more than 3,000 on-demand platforms were offering access to audiovisual programmes1.
Since the 1st edition of this white paper in 2011, box office receipts have grown despite a difficult economic climate. There are over 1,000 new television channels and the number of on-demand platforms has grown by over 400%.
Residuals – courtesy of Directors’ Guild of America
Download a high-res version below
The Musicians’ Union (MU)
FEATURED ARTISTS COALITION (FAC) https://www.thefac.org/
The MU is the UK trade union for its 30,000 musician members and has, since its inception in 1893, been working on behalf of featured or contracted recording artists, orchestral players and as session musicians. The MU negotiates fees and conditions with a variety of sectors both audio and audio-visual, and campaigns to improve copyright and performers’ rights, for better conditions, support for the live sector, music in education for the benefit of all musicians. The MU is a member of the international body, FIM, the British Copyright Council and the government lobbying body UK Music. The union works alongside PPL (Phonographic Performance Ltd) which is the record label owned UK CMO that administers royalties arising from the broadcast and public performance of commercial sound recordings.
FEATURED ARTISTS COALITION
FEATURED ARTISTS COALITION (FAC) https://www.thefac.org/
Founded in 2009 by artists for artists, the FAC works to support, promote and protect the recording artist community in the UK. Allied closely with the nascent international body the IAO, the FAC serves as the UK collective voice fighting domestically and internationally for better transparency and fairness within the music industry. The organisation encourages improved standards and business practices from record labels, music publishers and other business partners and has a seat on the board of UK Music. Led by a CEO, the FAC Board is made up entirely of recording artists and unusually also features an “Artist in Residence”, a rolling appointment of a high profile artist that complements the skills of the CEO.
Equity
Equity https://www.equity.org.uk/home/
Equity is the UK trade union for professional performers and its 40,000+ members form a broad cultural community including actors, singers, dancers, choreographers, stage managers, theatre directors and designers, variety and circus artists, stand-up comedians, television and radio presenters, walk-on and supporting artists, models, stunt performers and directors and theatre fight directors. Equity supports their members by negotiating their terms and conditions including fee structures with all kinds of employers and employer’s groups in both new and emerging technologies. The union agreements operate within satellite, digital television, new media, mobisodes, internet only productions, podcasting and so on are all covered, as are the more traditional areas. Equity also lobbies locally and internationally for improved recognition for its members. Equity is a member of FIA and is works alongside the British Equity Collecting Society http://www.equitycollecting.org.uk/ (BECS) the collective management organization that collects and pays out royalties generated throughout the EU from retransmission, copying, rental and broadcast.
Directors UK
Directors UK https://www.directors.uk.com/
Directors UK is the British guild for directors of the moving image and is both a campaigning organisation and a collective management organisation. The organisation works to give the multitude of ways in which directors work greater prominence – a director’s work in writing as well as direction. Some also produce, and many work in multimedia, computer games, commercials and music videos. Under UK copyright law the director is the author of the film and, under moral rights provisions, has a right to be identified as such. Since 2001 Directors UK has been collecting and distributing payments to UK directors for the secondary use of their works. Although contracts require a complete assignment of the director’s copyright to the producer, the guild administers revenue arising under the UK Rights Agreement signed with broadcasters which compensates directors for television repeats, DVD releases, and foreign sales. It collects equivalent sums from Europe where local laws allow for payments to directors for re-use, for private copying and cable retransmissions. In addition, the guild administers the residuals payable by the BBC and payments for use of work in educational establishments (known as ERA monies).
Society of Authors
Society of Authors (SoA) http://www.societyofauthors.org/
Established in 1884 the Society of Authors is a trade union for all types of UK writers, illustrators and literary translators, at all stages of their careers. The Society administers a number of literary estates and works alongside the UK Authors’ Licensing and Collection Society https://www.alcs.co.uk/ (ALCS). ALCS is the collective administration organisation that has, since 1977, been administering royalties arising in the UK and abroad from the re-use of writers’ works. Income arises via secondary reproduction, public lending, film retransmission monies for screenwriters, educational recordings (ERA) and private copying in countries where this remuneration right exists.
GLOBAL MUSIC REPORT 2017 ANNUAL STATE OF THE INDUSTRY
2017 CISAC Global Collections Report
The Music Aggregator: Getting Unsigned Artists and Boutique Record Labels into the Digital Marketplace
The Music Aggregator: Getting Unsigned Artists and Boutique Record Labels into the Digital Marketplace
Intermediaries emerge in markets to help reduce inefficiencies by lowering transactions costs, providing better information about market standards, technical requirements (in this case of music) and increasing quality by enforcing compliance.
Aggregators in the recorded music industry act as legal intermediaries between small independent owners of sound recordings – usually artists and record labels – and digital services. They provide a rights holder the opportunity to have their recordings licensed to many digital services through a single entity.
To use an aggregation service a rights holder must grant all rights necessary to enable the aggregator to sub-license their recordings to digital services. There is no transfer of ownership in this contractual relationship, only a short term assignment of rights (usually a year or two). In return, the aggregator agrees to license the recordings to digital services, collect all royalties due, and to account and regularly pay the rights holder.
An aggregator’s revenue mostly comes from charging rights holders, not digital services. There are two dominant pricing models used across the industry. The first model is based on sharing the income generated by the exploitation of the recordings, from which aggregators retain an agreed share. In the second model rights holders receive 100% of the royalties in exchange for a fixed fee per track, or per month. This option is usually preferred by rights holders that have fewer recordings and high sales expectations.
Most aggregators also act as technical intermediaries between rights holders and digital services; these aggregators are usually referred to as distributors. As well as licensing recordings, they store, encode and deliver audio files, artworks and all the underlying data to digital services. This is usually offered for an additional fee per track, or a higher commission rate (usually between 10% and 25%).
So, do aggregators solve all the problems of supplying services with music, or do they introduce new problems?
Many rights holders don’t have the resources or bargaining power to license their recordings to hundreds of digital services on favourable terms, and manage royalty reporting and payments on a global scale. Aggregators have also helped digital services reduce the legal and administrative cost involved in licensing a wide range of catalogues.
However, by adding an additional layer between the artist and its audience, aggregators can reduce control and transparency over how and where recordings are exploited. Whilst some aggregators are better than others, a number of NDAs in licensing contracts with digital services prevent them from sharing all information about the exploitation of their recordings with the creators and the rights holders to whom they are providing the service. This can be frustrating for the talent and for the label.
For a recording artist that controls their own work and wants to reach the market, there are many aggregators and deals on offer. Bearing in mind the caveats outlined above, here are a number of variables that should help navigate between aggregation deals:
- Transparency: how much does the rights holder know about the exploitation of its recordings?
- Third Party Rights: Is the aggregator clear about the position in respect of third party rights?
- Control: does the rights holder have any control over the exploitation of its recordings?
- Termination: is the process made easy by the aggregator? Are there fees involved?
- Reporting and Payment Frequency: how frequent are reports and payments sent? Is there a minimum payment level?
- Fees: what is the pricing model? If the aggregator retains a share of the revenue, is all revenue included?
- Exclusivity: is it possible for rights holders to use the services of another aggregator for the same recordings?
- Additional Intermediaries: does the aggregator license recordings to digital services directly or does it use another aggregator, thereby introducing another layer between the talent and the marketplace with potentially an additional revenue share?
- Audit: does the rights holder have the possibility to audit the aggregator’s accounts?
A traditional record label or publisher is strictly speaking an aggregator of sorts, but their acquisition of the talent’s rights, and their long term (sometimes permanent) retention of those rights transforms them into a more conventional corporate entity. The large copyright holdings then become capital assets to be manipulated and used to leverage growth. Further, their contractual accounting obligations to the talent apply only when the income can be directly and identifiably matched to individual works. This condition serves to allow a label or publisher to retain lump sums for the benefit of shareholders and executive reward, and, crucially, acts as a powerful disincentive to their developing accurate reliable works and writer/performer data.
The true aggregator’s flexibility, model of accounting to clients and the granular nature of usage analysis creates a less impeded revenue flow through to the talent and arguably makes an aggregator a more attractive partner for many music creators and boutique catalogues.
© Pauline Bertinet, The state51 Conspiracy http://state51.com/
Rights and Revenues for Actors
Rights and Revenues for Actors
Behind the Glamour
Performers working in the audiovisual sector, whether in film, television or digital media, have been effectively subsidising these industries for as long as they have existed. This may sound like a bold statement, but it is in fact quite accurate for an overwhelming majority of them. Behind the glamour there are countless small players moving the audio visual industry.
What performers want most is to entertain a public, either live or on camera. It is their ultimate raison d’être, their passion, and they would endure just about anything to be offered a chance to express their talent. This is what makes them great, but also what makes them extremely vulnerable. Most of them come unprepared, as they enter this business, to face a tough and highly competitive environment.
The image portrayed by the media is misleading: most performers do not live a life of riches and in fact struggle to make ends meet and pay off their monthly bills. Audiovisual performers have highly irregular career patterns, as they constantly need to be cast for new roles, juggling between short-term employment opportunities in the industry, casual work and unemployment. Every new opportunity to be cast for a role may be their last.
The irregular nature of their career is a stressful component of their daily lives but also a hindering factor as they seek social protection. Social security systems are often ill-equipped to deal with freelance work, as they continue to be built on more traditional, open-ended forms of employment. As a result, many performers working in the audiovisual sector have limited or no social benefits. Adding insult to injury, they are increasingly warmly encouraged to embrace self-employment, often with a view to reducing employer costs. Under antitrust rules they may then find themselves classed as “undertakings” and therefore banned from negotiating acceptable minimum terms and conditions collectively. As independent contractors, they also have to take up private insurances to assist with anything from medical treatment to retirement. Many performers cannot afford to do so and thus find themselves in dire straits should they hit a bad patch.
Contractual”Freedom”, Perpetual Exploitation and Perpetual Loss
One singular characteristic of their work, however, is that their performances can be successfully exploited on various media and for a long time, continuing to generate fresh strings of revenue. In light of their precarious professional status, it is immensely meaningful to them to get a fair share of the income generated by their work, over and above any fee that may have been paid to them for delivering the initial performance. Every little payment can make a huge difference to them.
Only a handful of high profile performers actually have enough leverage to negotiate adequate fees and use payments, either in the form of residuals, royalties or a combination of both. Even in those cases, it may be challenging for them to know exactly how much revenue is due to them, for which use and, more generally, to enforce the terms of their contract. Additional pay-outs will typically be subject to prior cost recoupment and, oddly enough, this seems to be one of the few industries in the world operating at a perpetual loss.
The only “contractual freedom” for performers with less bargaining power is to sign a contract over which they have no say – and thus get their next job – or to not sign that contract and face prolonged unemployment. When such performers are in a one-to-one relationship with a producer and without the benefit of a comprehensive union agreement, contracts are consistently one-sided and imbalanced. They are colloquially referred to as “buy-outs” and imply sweeping permissions for use of a performance, in all media, in perpetuity and in the entire universe in return for an often-symbolic, upfront payment.
It is not uncommon for contracts to include abusive provisions with respect to future use and/or media, or even forcing the performer’s consent to deliver extra work, e.g. dubbing or marketing appearances, for no additional premium. Contractual “freedom” usually leaves performers empty handed. In many countries around the world, it is even normal practice for them to work without the benefit of a written contract, leaving them with no redress when seeking to claim what is due to them. Needless to say, most performers hardly dare to voice an objection for fear or being blacklisted and losing future job opportunities.
Audio vs Audio Visual
Many countries around the world still grant intellectual property protection to audio performances only. This is due to the fact that international norm setting struggled for many years to reach consensus on the rights of performers in film or audiovisual media. This incongruous situation finally came to an end with the adoption of the WIPO Beijing Treaty on the Protection of Audiovisual Performances in 2012, currently under ratification. Signed by 122 countries, the Treaty will not enter into force 30 eligible parties ratify or accede to it.
The provisions in this Treaty are long overdue and will give audio visual performer key economic rights in relation to their performances to which licence fees would attach:
- The right of reproduction
- The right of distribution
- The right of rental
- The right of making available*
*for more detail about the making available right see: Rights and Revenues for Music Performers.
When implemented in national laws, the Treaty may finally grant an effective and meaningful protection to audiovisual performers and there certainly are built-in mechanisms to make this happen. This is not a given however.
The potential advantage of these rights would be seriously undermined, where, for example, the national transposition legislates for the transfer to their producer of all these economic rights granted the talent. National legislation could do this by way of statutory presumptions. Such normative provisions would inevitably end up perpetuating the weak spot in which performers are customarily found right from the start and would be custom-made to satisfy the corporate interests of the industry.
Understandably, a producer would not wish to negotiate terms and conditions with each and every performer that is cast for a production. However, there are much better ways to ensure the smooth running of business than by stripping all economic rights away from the performer at the point of contract. Certainly one of the best is the tried and tested method of concluding collective agreements with representative trade unions, setting out acceptable minimum terms and conditions. There is also the device of revenues from usage managed via collective management organisations which, in Europe, are obliged to meet legislative standards of governance and transparency. (See the US talent guilds and Collective Rights Management here)
Collective Bargaining
Union-negotiated agreements are the only way for most audiovisual performers to rely on a minimum safety net, above which they may try to reach individually. Most of them in practice will agree to work for those minimums that become, in essence, the industry standard. In addition to addressing key aspects of working conditions – e.g. working hours, rest periods, meals, health and safety, insurance coverage, etc. – collective bargaining agreements set out how much performers are to be paid when their performances are used in primary and secondary markets. In addition to performance fees, they may thus also establish residual payments or royalties, or a combination of both.(Broadly, a residual is a pre-established payment calculated as an agreed percentage that is determined by collective negotiation by a guild or trade body and is different depending on the type of exploitation. A royalty is calculated by reference to the revenue arising from the exploitation itself, and is established by contract and expressed as a percentage of a price base – for example, retail, or wholesale or as a percentage of the licence fee.) Compliance with these agreements grants a producer the necessary legal certainty when exploiting the performance, without the need to engage in time-consuming individual negotiations.
Few talent unions, however, have gained enough leverage to stand strong at the bargaining table and improve the wellbeing of performers hired under the terms of those agreements. Those that can are notably those that managed to become very representative in countries with a sizeable audiovisual market. These unions have had to fight hard and in solidarity with each other to combat practices of a globalised industry such as flying talent across the planet not just to shoot on location but also to evade union jurisdiction. Where they have managed to do so successfully, it was always by building a stronger and cohesive membership.
In several other countries, trade unions struggle, despite their efforts, to exert jurisdiction and influence over revenue-related matters. This is due to a variety of reasons: from assertive anti labour policies to the overzealous application of antitrust rules, the strong resistance of producer bodies or even the performers’ own perception of themselves as artists rather than workers.
Performing is a highly skilled craft and without performers much of the entertainment our audiences enjoy on screen, television and digital new media would simply not exist. The content industry stands as a major GDP contributor and a powerful driver of innovation and technology. Films, television series, and other audiovisual content, including advertising, permeate our lives – not simply for people to enjoy but equally to be informed and educated. And yet, by and large, performers continue to subsidize these industries, as their creative skills are not adequately acknowledged and rewarded.
The International Federation of Actors (FIA) represents performers’ trade unions, guilds and professional associations in about 70 countries. In a connected world of content and entertainment, it stands for fair social, economic and moral rights for audiovisual performers working in all recorded media and in live performance.
In order to try and rebalance the interests of industry and the talent upon which industry depends the International Federation of Actors (FIA) together with three other organisations representing performers in Europe: AEPO-ARTIS (http://www.aepo-artis.org ), the International Federation of Musicians (FIM) and the International Artists’ Organisation (IAO) are carrying out a campaign to introduce into European legislation a right to remuneration for performers, collected from downloading and streaming platforms and managed by performers’ collective management organisations. Links to these organisations are found here on Fairness Rocks.
The International Federation of Actors (FIA) http://fia-actors.com/
International Confederation of Societies of Authors and Composers (CISAC)
International Confederation of Societies of Authors and Composers (CISAC) http://www.cisac.org/
With 239 member societies in 21 countries CISAC represents more than 4 million creators from all geographic areas and all artistic repertoires; music, audio-visual, drama, literature and visual arts. CISAC has an important presence at WIPO and aims to secure fair remuneration for creators for the use of theirs works anywhere in the world. CISAC’s global policy and legal activities focus on promoting pro-creator legislation at international, regional and national levels across all artistic repertoires: music, audio-visual, drama, literature and visual arts.
- The transfer of value from creators to digital intermediaries and the liability of service providers are at the top of CISAC’s agenda. CISAC has developed an international lobbying campaign for a favourable interpretation of existing safe harbour laws in a manner that requires ISPs to remunerate creators for acts covered under exclusive rights.
- In the audio visual sector CISAC advocates for an unwaivable and unassignable right of remuneration for audio-visual creators. An academic study on the importance of this right for directors and screenwriters has been commissioned Law Professor Raquel Xalabarder, a film copyright specialist and Chair of Intellectual Property at Universitat Oberta de Catalunya. The study examines the legal framework in countries that grant the right and develops arguments for the right’s implementation in countries that do not have it yet.
- CISAC undertook a comprehensive private copying legislation analysis – the first global examination of private copying systems – to identify countries where societies may be able to collect remuneration under existing laws and to urge countries to amend laws to allow private copying systems where they do not exist.
- CISAC campaigns for the universal implementation of the visual artists’ resale right to promote a new international treaty that would make the resale right mandatory.
International Artists’ Organisation
International Artists’ Organisation https://www.iaomusic.org/
IAO runs a global campaign for fairer treatment for music performers in the digital environment and works to promote a fairer and more transparent market place.
In order to try and rebalance the interests of industry and the talent upon which industry depends the IAO together with three other organisations representing performers in Europe: AEPO-ARTIS (http://www.aepo-artis.org ), International Federation of Actors (FIA) and the International Federation of Musicians (FIM) are carrying out a campaign to introduce into European legislation a right to remuneration for performers, collected from downloading and streaming platforms and managed by performers’ collective management organisations.
In the USA they are supporting the US Music First campaign to secure airplay royalties for US music performers. An international instrument – the 1961 Rome Convention – was dedicated to giving performers and phonogram producers legal protection of a similar nature as that for authors. Labels and performers are entitled to be paid a royalty (known as “equitable remuneration” and managed by collective licences) when their recordings and recorded performances are broadcast or performed. Despite the strength of the US music industry the United States is still not a signatory to the Rome Convention which is most disadvantageous to American performers.
International Federation of Musicians
International Federation of Musicians https://www.fim-musicians.org/
Since its inception in 1948, The International Federation of Musicians (FIM) has been working towards the recognition of intellectual property rights for music performers. FIM counts 70 members in 60 countries throughout the world. FIM has a permanent relationship with major intergovernmental organizations such as UNESCO, the International Labour Organisation, and WIPO. It is recognised and consulted by the Council of Europe, the European Commission and the European Parliament. It enables it to participate in crucial negotiations on the protection of performers where it can make the voice of musicians heard.
FIM’s efforts have led or contributed to the adoption, at international level, of the Rome Convention (1961), the WPPT (1996) and the Beijing Treaty (2012). It seeks to establish international norms for contracting conditions, health and safety, performers legal and financial rights and works to promote cultural diversity.
In order to try and rebalance the interests of industry and the talent upon which industry depends the FIM together with three other organisations representing performers in Europe: AEPO-ARTIS (http://www.aepo-artis.org ), International Federation of Actors (FIA) and the International Artists’ Organisation (IAO) are carrying out a campaign to introduce into European legislation a right to remuneration for performers, collected from downloading and streaming platforms and managed by performers’ collective management organisations.
SAG – AFTRA
The Writers Guild of America, East, (WGAE)
Writers Guild of America West (WGAW)
The Directors Guild of America (DGA)
The Directors Guild of America (DGA) https://www.dga.org/
As part of the work on behalf of its members to promote the economic and creative rights of directors and members of the directing team, the DGA maintains an engaged and effective presence in Washington, D.C.
The Guild is works to help pass legislation that will serve to increase the production of film and television programming at both the federal and local level. They work to protect the jobs of DGA members as more foreign productions shoot in the United States. The Guild also monitors federal policies and regulations in the pensions sphere as the DGA’s Health and Pension Plans are a critical support framework for members.
One of the Guild’s key legislative priorities is in relation to the conditions created by the digital environment. The economic models currently operating in the digital marketplace threaten film financing and continued residuals at realistic levels. The internet has already demonstrated its capacity to damage the value of the creative contributions of directors and is arguably a wider threat to the health and diversity of global culture as a whole.
The International Federation of Actors (FIA)
The International Federation of Actors (FIA) http://fia-actors.com/
Representing its members in key international fora: as an NGO, FIA enjoys permanent consultative and participatory status with the World Intellectual Property organisation (WIPO); the International Labour Organisation (ILO); UNESCO, the OIF (Organisation Internationale de la Francophonie), the Council of Europe and the European Audiovisual Observatory.
FIA advocates worldwide to bring the voice of the performer to policy debates not just upon intellectual property rights but upon working conditions such as employment standards, safety, diversity and equality as well as artistic freedom. It promotes networks between members and strives to secure policies that will ensure continued for cultural commitment to the profession, enhance sustainable funding mechanisms for growth and jobs in the audiovisual and live performance sector.
In order to try and rebalance the interests of industry and the talent upon which industry depends the International Federation of Actors (FIA) together with three other organisations representing performers in Europe: AEPO-ARTIS (http://www.aepo-artis.org ), the International Federation of Musicians (FIM) and the International Artists’ Organisation (IAO) are carrying out a campaign to introduce into European legislation a right to remuneration for performers, collected from downloading and streaming platforms and managed by performers’ collective management organisations.
Writers And Directors Worldwide
Writers And Directors Worldwide (WDW) http://www.writersanddirectorsworldwide.org/
Writers And Directors Worldwide (WDW) is an official observer to the World Intellectual Property Organisation (WIPO) Standing Committee on Copyright and Related Rights thereby making the voice of the creator heard in this important global forum.
Operated by an elected council drawn from the profession worldwide, currently WDW is focused upon six key policy areas:
- Fair remuneration for the original commissioning of work, as well as from the benefits of subsequent exploitation that represents a fair in the success of the work.
- Digital distribution including support for the new EU Parliamentary proposal for an unwaivable right to remuneration for directors and screenwriters where their works are made available online.
- A coherent global standard that sets a fee for the private copying of works on blank and electronic media.
- Effective management of the lending of ebooks in libraries worldwide
- To establish a workable solution whereby links between writers and performers create better access to new works for licensing
- Incentives to encourage young entrants to the profession to contribute to a diverse and active cultural future
SAA
The Society of Audio Visual Authors http://www.saa-authors.eu/
Film and television programmes are copyright works – collectively known as audio-visual works. They are protected by law and there are rights and revenues that arise when these audio-visual works are exploited. Users of these audio-visual works, such as broadcasters, cable companies, cinemas and streaming services, pay licence fees to the owners of the copyright films or television programmes. But these works themselves contain separate works within them. Directors of a film are recognised as the author or the joint author of audio visual works. But the director, along with the other members of the talent pool that makes a film possible, will be required to grant their rights to the producer of the film or programme in their contract of engagement.
The pool of talent that makes an audio-visual work possible is made up of authors and performers as well as of technical staff. The talent creates works that are also protected by law – works such as music, performances by actors or musicians, or the script for example, costume designs, set designs.
The key authors of an audio-visual work for our purposes here, are the director and the script writer.
The licence fees for usage are paid, in the case of a film, or television programme, to the owner of the audio-visual copyright. The owner will be the producer, television company or film studio and the writer and director of the work will have been required to pass all their rights in their own works to the producer in their original contract of engagement.
Fortunately, in some countries there is legal right that makes revenue payable to the talent after a work has been written or created. This rebalances the financial position to a limited extent by ensuring that, via a separate route, some revenue at least reaches the talent that made the creative work possible in the first place.
As a matter of practicality, this licence revenue is collected by a single body in each country from the film owners and all the users of the copyright works The usage information is then analysed and paid onward to the talent by these companies. The companies are known as collective management organizations (CMOs). Writers and directors are members of the audio-visual CMOs in Europe which hold data about the works their members have created. CMOs for film and television work across the EU on behalf of the writers and directors of film and television, administering their revenues and ensuring their rights are respected. The individual CMOs fight together for the common interests of their members.
SAA is the EU body that represents these EU CMOs working on behalf of the writers and directors of audio-visual works. SAA has 31 member CMOs in 23 European countries. Together with other parties, they fight to improve the economic and moral (reputational) position of writers and directors of audio visual works. SAA and its members take positions upon broadcast regulation, intellectual property rights enforcement, cross-border portability of creative works, media convergence and other issues that affect the interests of writers and directors.
SAA supports a right of the talent to share in the fruits of a film’s success. SAA supports the levy that means the talent can benefit when private copies are made of their work. They are lobbying in response to the digital copyright draft directive, seeking a legally enforceable, unwaivable right to remuneration for writers and directors from the exploitation of audio visual works. This is a fight for a more realistic share of revenues from the digital exploitation of audio-visual works as currently a vastly disproportionate share of the value is retained by the large digital companies.
Legal Filings
Plaintiffs’ Consolidated Opposition to Motions – 01.02.2018
Second Amended Complaint – 19 Oct 2017
The ruling on Vivendi’s Motion to dismiss – 28 Sept 2017
Plantiffs’ Opposition to Defendants’ Motion – 29 Mar 2017
First Amended Complaint – 7 Feb 2017
Original Complaint – 17 Oct 2016
Termination Notices
Protected: February 2017 Release in French
CISAC position paper on the transfer of value
Overview
The way creative works (such as music, film and TV series, books and others) are accessed by users has seen a huge transformation in the last ten years. With the rapid evolution of the digital world, new business models and services have developed along with new channels of delivery.
This has also changed the licencing environment. Unlike in the past, creative content is no longer exclusively available from digital service providers that obtain a licence and pay for the content they provide. Such content is now widely available and shared through platform-based services. These platform services aim to attract and retain consumers by enabling them to access a vast volume of creative content, as well as information that may or may not be available in a different format elsewhere. These services do not create or invest in content. They aggregate or make available content that is already accessible on other websites or made available by the individual users of those platform services.
These platform services are at the heart of what is called the “transfer of value” (or “value gap”). The transfer of value arises because of a fundamental mismatch between the enormous value derived from creative works by digital services and the minimal value being returned to the creators of those works. While consumption of creative content is seeing explosive growth, the value of cultural and creative works is being retained by these platform services instead of being passed along to the creators.
Audiovisual Authors’ Remuneration Challenges for fairness in the digital era
A useful illustrated guide to how audio visual authors are remunerated for their creative work and the gross imbalance in negotiating strength between authors and the broadcasters/entertainment industry.
Le co-auteur de This is the Spinal Tap, Harry Shearer, voix des “Simpsons”, poursuit Vivendi en justice (et réclame 125$m) pour non-respect des droits d’auteur
Paris, le 18 octobre 2016 – Harry Shearer, l’artiste, acteur, compositeur, producteur, réalisateur et scénariste américain à la notoriété mondiale notamment pour avoir été la voix de 23 personnages de la série télé “les Simpsons“, a déposé aujourd’hui une plainte en justice pour fraude à Los Angeles USA contre le conglomérat français Vivendi. La plainte explique que Vivendi a depuis plusieurs années, mis en place des pratiques anti concurrentielles et déloyales ainsi que des méthodes comptables frauduleuses dans la gestion des droits du film This Is Spinal Tap, l’un des plus grands succès de l’industrie du cinéma. Harry Shearer est co -auteur du film ; il a co-écrit la bande sonore et interprétait le rôle du bassiste du groupe de This is Spinal Tap, Derek Smalls.
Selon la plainte, Vivendi et ses agents, ainsi que les filiales, StudioCanal et Universal Music Groupe, ont délibérément manipulé certaines données comptables, et enfreint les procédures de reporting contractuellement convenues, pour refuser à Shearer et ses co-créateurs le versement de leurs arts dans les revenus du film. Le plaignant demande 125 millions de dollars tant au titre des droits non perçus qu’à titre d’indemnisation.
Ron Halpern, en tant que dirigeant de StudioCanal, exerçant la responsabilité personnelle de l’exploitation du film et de la bande sonore, est nommément visé par la plainte. Ron Halpern vit à Paris.
“Voici presque 40 ans, Christopher Guest, Michael McKean, Rob Reiner et moi avons créé cet orchestre devenu légendaire, The Spinal Tap,” explique Harry Shearer. “Nous avons senti qu’il y avait quelque chose d’exceptionnel dans les personnages et nous nous sommes considerabelemnt investis, entre l’idée initiale et la sortie du film en 1984, nous nous sommes considérablement investis pour créer ce qui est devenu une véritable légende qui a rencontré un succès universel, a distrait et continue encore aujourd’hui de distraire tant de personnes. Mais, malgré le gigantesque succès du film et de sa musique, nous sommes victimes des allégations classiques et des méthodes comptables de l’industrie du spectacle qui pénalisent de très nombreux auteurs et créateurs. Dans le cas de This is the Spinal Tap, la fraude et la négligence sont véritablement trop flagrants pour ne pas agir».
En 1982 MM. Reiner, Shearer, Guest et McKean – avaient signé en 1982 un accord avec Embassy Pictures Inc. pour la production, le financement et la distribution de This is the Spinal Tap. L’accord attribuait 40 % des recettes nettes aux créateurs, calculées sur l’ensemble des sources de revenus, film, musique et produits dérivés.
A sa sortie en salles en 1984, le film est immédiatement devenu une référence-culte et This is the Spinal Tap est aujourd’hui reconnu comme l’un des plus grands succès du XXème siècle. Le film a été distingué à de multiples reprises :il est dans le New York Times Guide des 1.000 meilleurs films de l’histoire, mais aussi dans la Total List des 100 plus grands films et a aussi été classé numéro un dans le prestigieux classement du Time Out London’s 100 Best Comedy Movies List. En 2002, le succès récurrent du film a décidé les dirigeants de la Bibliothèque du Congrès américain, la plus ancienne et l’une des plus prestigieuses institutions culturelles américaines, de le répertorier comme film «culturellement, historiquement et esthétiquement majeur ».
Les resultats du film ont été en phase avec l’accueil exceptionnel de la critique et du public. Le film a été réalisé avec très peu de moyens : le budget initial n’a pas dépassé 2,25 millions de dollars. Mais This is the Spinal Tap a généré durant 32 ans des dizaines de millions de dollars de revenus, via l’exploitation du film, les DVD, les albums, les singles et de a musique sous toutes les formes d’écoute. Mais ces profits n’ont pas été loyalement distribués pour ce qui devait revenir aux co-createurs, aux acteurs et aux equipes.
En 1989 Vivendi, via Canal +, acquiert les droits du film. C’est à partir de cette date, selon la plainte, qu’ont débuté de véritables manœuvres pour masquer les revenus d’exploitation, en compliquer le suivi et la comptabilisation et ainsi minimiser les droits et éviter d’avoir à respecter les obligations dues aux auteurs. La plainte explique que les états comptables fournis par Vivendi ont été régulièrement incohérents et il est avéré que depuis 2014, date du trentième anniversaire de la sortie du fil, Vivendi a été dans l’incapacité de fournir le moindre reportant de l’exploitation.
La plainte souligne que malgré les millions de revenus du film, le conglomérat a affirmé que la part revenant aux quatre des quatre créateurs de revenu mondial total entre 1984 et 2006 était de US$81. Entre 1989 et 2006, le revenu total de seules ventes de musique a été estimé par Vivendi comme US$98 des dollars, selon la plainte.
« L’enjeu est simple : c’est celui du respect des droits d’auteur, explique Harry Shearer. Il est stupéfiant alors qu’après plus de trente ans, deux sorties de cinéma, toute une production en CD, DVD, home cinéma et tant de produits dérivés sont toujours distribués un peu partout dans le monde, seuls les gens à l’origine du succès, ceux qui ont formé l’orchestre et ont créé le film en premier ne perçoivent pas ce qui leur est dû ».
« Vivendi et ses filiales – qui possèdent les droits de milliers d’œuvres- ont, au moins dans notre cas, celui de This is the Spinal Tap, conduit des pratiques profesionnelles manifestement déloyales,” continue Harry Shearer. “Mais je ne serais pas surpris que notre cas ne soit que la partie visible de l’iceberg. J’intente cette action en justice en mon nom, mais c’est aussi pour le compte de tous les créateurs de films grand public dont le talent n’est pas justement rémunéré que j’agis. Je suis juste un cas qui cherche réparation pour une injustice flagrante, mais j’espère que ce procès, aidera à établir des procédures claires et loyales pour des méthodes comptables fiables et transparentes pour la rémunération des auteurs et des artistes, et cela pour toute l’industrie du spectacle.”
Remuneration of authors and performers for the use of their works and the fixations of their performances
This study was carried out for the European Commission by
Europe Economics and Lucie Guibault, Olivia Salamanca and Stef van Gompel of the University of Amsterdam
Abstract
This study analyses the current situation regarding the level of remuneration paid to authors and performers in the music and audio-visual sectors. We compare, from both a legal and economic perspective, the existing national systems of remuneration for authors and performers and identify the relative advantages and disadvantages of those systems for them. We also explore the need to harmonise mechanisms affecting the remuneration of authors and performers, and to identify which ones are the best suited to achieve this. Their potential impact on distribution models and on the functioning of the Internal Market is also examined. Finally, the study outlines a series of policy recommendations based on the analysis conducted.
The information and views set out in this report are those of the author(s) and do not necessarily reflect the official opinion of the Commission. The Commission does not guarantee the accuracy of the data included in this report. Neither the Commission nor any person acting on the Commission’s behalf may be held responsible for the use which may be made of the information contained therein.
Performers’ Rights in International and European Legislation: Situation and Elements for Improvement
Introduction
Under international, European and national legislations, performers are granted a protection for their performances in the field of music, audiovisual, dance or any other category of performing arts. Those rights are generally called performers’ rights. Like authors’ rights, performers’ rights can be divided in two categories: moral rights and economic rights.
