The Copyright Act protects not only authors but also performers artists like actors, singers, musicians, dancers and others. Under the Act, a performer is defined broadly to include an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, lecturer or any other person who makes a performance. A performance is any live visual or acoustic presentation by one or more performers. For example, a street mime or concert singer on stage is a “performer” under the law. Before 1994, The Act gave performers no special rights and in Fortune Films v. Dev Anand (1979), the court even held that performers had no legal protection. After India joined the Rome Convention (1961), the 1994 amendment finally recognized rights of performers under Copyright Law by inserting Sections 38, 39 and 39A in the Act. Now, whenever a person engages in a performance, he or she has a special “performer’s right” in that performance.
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Rights of Performers Under Copyright Law
Performers include anyone who gives a live act from stage actors and concert singers to dancers and street performers. Indian law explicitly defines a “performer” to cover actors, musicians, dancers, acrobats, lecturers and any person who makes a live presentation. Importantly, even a performance recorded in a studio (like a film song recording) counts as a “live” performance for these rights. (Some very casual film extras are excluded: the law now says if a person’s performance in a film is purely incidental and uncredited, they aren’t treated as a performer except for certain moral rights.)
Section 2(q) and (qq) define the terms “performance” and “performer”. A performance is any live visual or acoustic presentation by one or more people, and “performer” explicitly includes actors, singers, musicians, dancers, jugglers, snake charmers, lecturers, etc. This broad definition ensures that many kinds of artists are covered.
Section 38: Performer's Special Right
Section 38 (added in 1994) states that when a performer appears in a performance, he has a special right in that performance. This right is independent of any copyright in the underlying work (like a song or script) it belongs to the performer alone for the act of performing. Crucially, Section 38(2) fixes the duration: the performer’s right lasts 50 years from the beginning of the calendar year after the year in which the performance was made. (For example, a performance in 2020 enjoys protection until the end of 2070.) During this period, certain uses of the performance cannot be done without the performer’s permission. Courts have held that if someone records a performance in the studio or live and then exploits it without consent, that infringes the performer’s right.
Section 38A: Exclusive Economic Rights
The 2012 Amendment expanded performers’ rights by adding Section 38A. Section 38A(1) explicitly lists the exclusive acts reserved to the performer (or someone he authorizes). In particular, a performer has the exclusive right:
To make a sound or visual recording of the performance and to reproduce that recording in any form (including digital).
To issue copies of the recording to the public (unless copies are already in circulation).
To communicate the performance to the public (for example, broadcasting it or streaming it online).
To sell or commercially rent out copies of the performance recording.
To broadcast or otherwise communicate the performance to the public, unless the performance has already been broadcast.
These acts can be listed as follows:
Making or authorizing the making of a sound recording or visual recording of the performance (and reproducing it).
Issuing copies of the recording to the public.
Communicating the performance or recording to the public (e.g. by broadcast or online streaming).
Selling or renting copies of the performance recording commercially.
Broadcasting (transmitting) the performance to the public.
For example, a singer alone (or her record label with her authorization) can decide to make a recording of a live concert and sell it; anyone else doing so without permission would infringe her rights. These economic rights let performers control the commercial use of their performances, just as authors control copies of their books.
Section 38A(2)
It deals with performances in films. It says that once a performer has writtenly consented to include his performance in a cinematograph film, he generally cannot object to the producer using that performance in the film. However, a key proviso ensures the performer is still paid: it explicitly provides that “notwithstanding anything… the performer shall be entitled for royalties in case of making of the performance for commercial use.”. In other words, if a singer or actor agrees to sing or act in a movie, the producer gets to exploit that performance in the film itself, but the performer still gets royalties whenever it is used commercially.
Section 38B: Moral Rights of Performers
Also added by the 2012 amendment, Section 38B grants performers moral rights. These rights stay with the performer even after any assignment of his economic rights. Specifically, Section 38B gives two key rights:
Right of attribution: the performer has the right to be identified as the performer of his performance. This means a singer can insist on being credited by name. (However, attribution can be omitted if the use of the performance makes it impractical e.g. an extra in a crowd scene is not credited.)
Right of integrity: the performer has the right to prevent distortion, mutilation or other modification of his performance that would harm his reputation. For example, if a dancer’s performance is edited in a way that makes her appear foolish or offensive, she can object. (The Act clarifies that routine edits for technical reasons or shortening the performance are not considered prejudicial.)
These moral rights mean a performer can demand credit and can take action if his performance is tampered with in a damaging way. Notably, these rights cannot be signed away; even if a performer transfers all other rights, Section 38B is “independent” of assignment.
Duration of Protection of Rights of Performers under Copyright Law
The special and exclusive rights granted to performers under Sections 38 and 38A last 50 years from the next calendar year after the performance was made. That means for a live show on any date in 2021, protection runs until December 31, 2071. During this term, any unauthorized commercial use of the performance (beyond certain exemptions) infringes the performer’s rights. After the 50-year term, the performance falls into the public domain for performers’ rights purposes, although underlying copyright in the work (song, script etc.) may still last longer.
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Infringement and Remedies
Rights of performers under Copyright Law are enforceable just like copyright. Infringement occurs if someone does any of the reserved acts (like recording or broadcasting the performance) without the performer’s permission, during the protection term.
The Delhi High Court has emphasized that “every performance has to be live in the first instance … If this performance is recorded and thereafter exploited without the permission of the performer then the performer’s right is infringed.”. For example, re-recording a singer’s voice without her approval was held to violate her performer’s right.
To enforce these rights, the Act provides civil and criminal remedies. A performer (or an exclusive licensee) can sue in court for injunctions (to stop the infringing use) and damages (monetary compensation). Courts can also issue Anton Piller orders (search and inspect orders) to seize unauthorized recordings or documents.
Additionally, infringement of performers’ rights is a criminal offense: one may be imprisoned for 6 months to 3 years and fined ₹50,000 to ₹2,00,000 for unauthorized use of a performance. These strong remedies help deter misuse of performances.
Learn what are the punishments for copyright infringement.
Challenges Faced by Performers
Despite these legal rights, performers often face practical challenges. Many artists, especially newcomers, may not be fully aware of their rights or may sign contracts that waive rights without realizing. Broadcasters and producers sometimes resist paying performer royalties, leading to disputes. Historically, performers were not considered co-owners of film or music copyrights, so they had to fight for fair pay and credit.
The digital age presents new issues. With OTT platforms and online streaming, a performance can be broadcast globally at any time. This makes it even more important to have clear rights and licensing for performers. Industry experts note that these expanded rights (added in 2012) are vital in the era of streaming, to prevent artists from being exploited. Enforcement costs can also be high; individual artists may find litigation expensive, so they often rely on collective societies or negotiations to collect royalties. Ensuring that all media (TV, radio, internet) comply with performer payment obligations remains an ongoing effort.
Summary
We now have a comprehensive set of rights for performers under copyright law. Section 38 grants a performer a special right in any live performance, lasting 50 years. Section 38A details the economic rights (recording, reproduction, broadcasting, selling) and guarantees royalties for commercial use. Section 38B gives moral rights of credit and integrity. Performers can assign their rights under written contracts (with statutory safeguards), but their moral rights always remain. These protections give artists real control over their work. Infringement of performer’s rights can be challenged in court just as copyright infringement can. As the entertainment industry evolves, these laws help ensure that actors, singers, musicians and other performers are recognized and compensated for their contributions.
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Rights of Performers Under Copyright Law: FAQs
Q1. What are the rights of performers in copyright?
Performers have rights to control the recording, reproduction, and distribution of their performances, ensuring they can consent to or prevent unauthorized use and receive royalties when applicable.
Q2. What are performers' rights under CDPA 1988?
Under the UK’s CDPA 1988, performers have rights to consent to recordings or broadcasts of their performances, prevent unauthorized exploitation, and receive equitable remuneration for certain uses.
Q3. What is the duration of performers' rights in India?
In India, performers’ rights last for 50 years from the end of the year in which the performance was given, as per the Copyright Act, 1957.
Q4. What protection is there for performers?
Performers are protected against unauthorized recording, reproduction, or broadcasting of their performances, and they can seek legal remedies like injunctions or damages for violations.
Q5. What are the moral rights of performers?
Performers’ moral rights include the right to be identified as the performer and to object to derogatory treatment of their performance that harms their reputation.
