De Kock Attorneys Copyright

Copyright Protection of the Music Industry

Copyright is a very important aspect of the music industry. A single music CD may incorporate a number of “works” which may be eligible for copyright protection. Considering the definitions of the works listed in the Copyright Act 98 of 1978, the most important works to consider are the following:

  • Literary work – this generally relates to the written words or lyrics.
  • Published edition – this relates to typographical arrangement of any musical or literary work.
  • Musical work – this relates to composition or melody.
  • Sound recording.
  • Artistic works – this may relate to the design of the CD cover, including any photographs, drawings or logos.

It is important to identify different works involved, as they may be created and owned by different persons or entities.

Who owns a copyright in a CD?

The Copyright Act provides that the different relevant works are usually owned by the following persons:

  • a literary, musical or artistic work – the person who first makes or creates the work.
  • a photograph – the person responsible for the composition of the photograph.
  • a sound recording – the person by whom the arrangements for making the sound recording were made.
  • a published edition – the publisher of the edition.

As it is not possible to register these types of copyrighted works in South Africa at present, these works and contributions are generally best protected by way of written copyright notices and agreements.

It is advisable that these rights are consolidated by way of licence or assignment to a single company to produce, market and distribute the musical works (CDs).

What about the performers?
The Performer’s Protection Act 11 of 1967 grants performers the rights to protect and restrict the use of their performances in South Africa and other countries which are members of the World Trade Organisation.

The rights and protection granted to performers under the Performer’s Protection Act are not copyright. The Act provides for the protection of a separate right which is supplementary to copyright and personality rights which are recognised under common law. For example, while copyright protection extents to the lyrics and composition of a song, the performer’s performance of the song is protected by the Act and his personality rights. The performer’s rights in no way restrict or affect the rights which are embodied in the performance and protected by copyright.

Performers are encouraged to register their names under which they perform (“stage names”) as trade marks on the Trade Marks Register.

What about music agreements?
It is advisable for musicians and record companies to conclude written agreement, especially to determine ownership of the copyright and relevant trade marks relating to the music, band or performer. Parties should inter alia also agree on aspects of marketing, performances and payment of royalties, to avoid any misunderstandings or confusion.

Generally speaking, in the case of musical works, music agreements should also cover the following main rights in relation to the works and artist:

  • The right to print or publish the music (graphic rights).
  • The right to record the music (reproduction / mechanical rights).
  • The right to perform the music in public (performing rights).
  • The right to the name of the band / performer (trade mark rights).

SAMRO (South African Music Rights Organisation) is a collective organisation which generally controls the right of performances of music in public, broadcasting and transmission.

Need further advice?
The above comments are generally information. You are welcome to contact us, if you require formal advice, registration of a trade mark or drafting of a music agreement. You are also welcome to contact us, if you are experiencing any conflicts relating to possible copyright infringement of musical works or disputes relating to music agreements. We look forward to hearing from you.

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