The rights of performers, phonogram producers and broadcasting organisations are certainly covered, and are internationally protected by the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations[2] signed in 1961.
Therefore as a matter of statutory law, a performer, being either an actor, dancer, sportsperson or musician cannot claim a separate copyright.
Remedies for unauthorized fixation of performances are sought under the common law right of publicity.
[5] The SCOTUS in Zacchini v. Scripps-Howard Broadcasting Co ruled that the Ohio State Legislation gave an individual the right to possess autonomy over the dissemination of their performance.
Accordingly the Court held that the unauthorized recording and live telecasting of an individual's "human cannonball" performance was in violation of the right of publicity.
The decision of the Court of Appeal for the 2nd Circuit in Baltimore Orioles, Inc[8] held that the performance of baseball players were not protected as being a distinct copyright and rather, that they were works for hire.
Nevertheless, certain State Governments have enacted statutes that explicitly recognize the right against sales and reproductions of fixed performances that were unauthorized.
For example the New York Civil Code was relied upon in Giesking[9] to preserve the rights of a musician against unauthorized reproduction.
For instance, in Milder v Ford[11] the 9th Circuit observed that she had a "common law property right to her own voice".
Of further note is the anti-bootlegging provision that was incorporated into the US Copyright Statute[12] by way of amendment in order to ensure consistency with the TRIPS Agreement.
[15] Provisions regarding the violation of the Performer's rights as per the 2012 amendment are prescriptive in nature.
[19] IPRS v EIMPA dealt with whether the work incorporated in the sound track of a cinematograph film vests in the composer of that musical work or whether it became the property of the cinematograph film producers with no copyright subsisting in them, if the composers were engaged under a contract of service.
Furthermore, it was observed by Justice Krishna Iyer that while a composer has a copyright in the musical work, the singer has none.
[29] A performer’s right is not infringed by any adaptation or modification which does not constitute copyright violation under section 52.
Moreover, any recording, whether in the sound or visual form, done solely for personal use or for teaching or research purposes does not violate performers right.
[31] The term phonogram is used to refer to any sound recording: under the Rome Convention, it must be composed exclusively of a sound recording, although some national laws protect film soundtracks with the same measures to the extent that they are not also protected by other rights.
The maximum conditions are that each copy of the phonogram should be clearly marked with: Countries signing the WPPT shall not require any formality for the protection of producers' rights.
4 Geneva) set a minimum term of protection of producers' rights of twenty years from the end of the year in which the phonogram was first published (or from its creation for unpublished recordings): the TRIPS Agreement (Art.
For phonograms recorded in the United States the situation is more complicated: Article 13 of the Rome Convention specifies that broadcasting organisations shall have the right to prohibit (or license): Article 14 of the Rome Convention sets a minimum term for the protection of broadcasters' rights of twenty years from the end of the year in which the broadcast was first made, confirmed by the TRIPS Agreement (Art. 14.5).
3(f)]: the Brussels Convention closes this loophole by providing for protection of satellite broadcasts not intended for direct public reception.
This is particularly important for databases that aim to be complete, as these lack the element of selection that might qualify them for protection as "compilations" under Article 2.5 of the Berne Convention (although their arrangement can still be considered creative).
It is specifically intended to protect "the investment of considerable human, technical and financial resources" in creating databases (para.
To qualify, the database must show "qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents" [Art. 7(1)].
Their creators have the right "to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database."
An alternative approach, adopted notably by Germany and Italy, has been to offer full copyright protection to photographs that are clearly "artistic works" and protect all photographs, whatever their creative value, by a shorter sui generis related right.
However it also means that photographs are subject to a higher test of originality than other works of art, with copyright being reserved only for those the courts felt to be particularly meritorious, in contravention of the spirit (if not the letter) of the Berne Convention.
The different treatment of photographs and other artistic works was eliminated by European Union Directive 93/98/EEC (Art.
In countries where applied art can be protected by normal copyright term (e.g., Germany), an extremely high level of originality and creativity is demanded.