Concept and Legal Classification of the Performing Artist
The term performing artist has central significance in both German and international law for the protection of artistic performances. Performing artists are at the heart of the neighboring rights provisions of the Copyright Act and are protected both nationally and through international agreements, such as the WIPO treaties.
Definition of the Performing Artist
Ein performing artist is defined in Section 73 of the Copyright Act (UrhG) as any person who artistically interprets or performs a work of literature or music, a pantomime, a dance work, or another work of performing art. The definition particularly includes actors, musicians, singers, dancers, narrators, puppeteers, conductors, and other individuals who make works directly perceptible to an audience through their personal performance.
The following criteria are generally used for legal classification:
- Artistic performance: The contribution must have a creative, interpretive component.
- Purpose of protection: The protection serves the personal and economic interests of the performing individual.
- Distinction from mere contributors: A purely technical contribution is not sufficient.
Legal Protection of Performing Artists
German Law
Neighboring Rights (§§ 73 ff. UrhG)
The Copyright Act protects the performances of performing artists through independent neighboring rights (§§ 73 to 83 UrhG). The protection covers:
- The recording of their performances on audio and visual media,
- The transmission of the performance via broadcasting or other public communication,
- The right to decide on the further use of these recordings and broadcasts.
These rights are automatically granted to the performing artist, unless contractual agreements (e.g. within music or stage contracts) stipulate otherwise.
Rights of the Performing Artist
The rights can be distinguished as follows:
- Exploitation rights: The rights under Section 77 UrhG include in particular the right to reproduce, distribute, and make accessible to the public the recordings and documentation of the performance.
- Broadcasting right: According to Section 78 (1) No. 1 UrhG, the performance may not be broadcast without the artist’s consent.
- Right to be named: The performing artist has the right under Section 74 UrhG to be named as the performing artist.
- Protection against distortion: Protection against distortive alterations of the performance, insofar as the legitimate interests of the artist may be affected.
- Remuneration claims: For certain uses (e.g. retransmission, rental, private copying), the artist is entitled to statutory remuneration claims (§ 78 UrhG).
Term of Protection
The term of protection pursuant to Section 82 UrhG is generally 70 years from the date of the first publication or performance. If the performance is not published, the term runs from the date of performance.
International Protection Regime
International Agreements
The protection of performing artists is governed by international agreements, in particular:
- WIPO Performances and Phonograms Treaty (WPPT): Establishes uniform minimum standards for protection worldwide.
- Rome Convention (1961): Guarantees international minimum rights for performing artists.
- TRIPS Agreement: Contains further provisions for the protection of the rights of performing artists within international trade law.
European Law
Directive 2001/29/EC (Infosoc Directive) of the European Union harmonizes the rights of performing artists in the internal market and obliges member states to maintain adequate protection standards.
Distinction from Related Terms and Groups
Difference from the Author
The performing artist does not become the author of the work performed; this status remains reserved to the creator of the work (e.g. composer, poet). The performing artist brings the work to performance or makes it accessible to the public through their own artistic contribution. The protective rights of both groups exist alongside each other.
Difference from the Protection of the Phonogram Producer and Promoter
In addition to the performing artist, phonogram producers (§ 85 UrhG) and promoters (§ 81 UrhG) are also protected by neighboring rights. While the protection of phonogram producers covers the economic interests in the recording and exploitation, the promoter’s right relates to the organization of a performance.
Contributors without Artistic Initiative
Individuals whose contribution does not possess independent artistic content (e.g. mere extras or support staff) are not considered performing artists within the meaning of the UrhG.
Transfer, Rights Management, and Remuneration
Transfer and Granting of Rights
The rights of performing artists may be transferred in whole or in part. In practice, this is often done by contractually granting rights of use to producers, labels, promoters, or collecting societies (e.g., GVL for the music sector).
Collective Rights Management
Numerous rights are collectively managed by collecting societies. In particular, the Gesellschaft zur Verwertung von Leistungsschutzrechten (GVL) represents the rights of performing artists vis-à-vis users such as broadcasters, streaming platforms, or promoters and ensures the distribution of corresponding remuneration.
Legal Consequences for Violation of Artists’ Rights
Claims in Case of Legal Infringement
In the event of unauthorized use or unlawful exploitation of a performance, the performing artist is entitled to claims for injunctive relief, damages, information, and, if applicable, destruction of unlawfully produced recordings (§§ 97 ff. UrhG).
Criminal Law Relevance
Certain violations of rights of performing artists may constitute a criminal offense (§ 108 UrhG), such as unauthorized public reproduction, distribution, or copying.
Special Case Scenarios and Practical Issues
Collective Performances
For ensembles, orchestras, or bands, the neighboring right is granted to all participating artistic individuals according to their contribution. In practice, rights management is therefore often organized collectively, for example, through orchestra management or management structures.
Contractual Arrangements
Within the framework of engagement contracts, artist agencies, or commissioned productions, agreements regularly govern the transfer and structuring of rights, the scope of permissible use, as well as remuneration arrangements.
Technical Development and Digitalization
With digital transformation and new forms of media use (e.g. streaming, online platforms, digital exploitation), the claims and enforcement options of performing artists have expanded considerably. The management of rights and corresponding protection mechanisms increasingly rest with collecting societies and modern technical protection measures.
Summary
The performing artist is a central figure in neighboring rights law. The Copyright Act and international regulations provide them with comprehensive protection for the economic and personal use of their artistic performances. Transfers of rights, collective rights management, and a layered protection mechanism ensure a balanced consideration of interests vis-à-vis third parties, exploiters, and promoters. The development of new media and channels of exploitation requires ongoing adaptation of protection mechanisms for the benefit of performing artists.
Frequently Asked Questions
What rights do performing artists have under German copyright law?
Performing artists are protected under German copyright law by the so-called neighboring rights. According to Sections 73 ff. UrhG (Copyright Act), they are granted, in particular, the right to recognition of their authorship (§ 74 UrhG), the right to be named (§ 74(2) UrhG), and various exploitation rights. The exploitation rights particularly include the right to permit or prohibit the recording and distribution of their performance (§ 77 UrhG). In addition, they have the right to decide on the audiovisual reproduction or broadcasting of their performances. These rights apply regardless of whether the performing artist created the performance themselves or merely interpreted it. They are also entitled to a claim for appropriate remuneration if, for example, their performance is used or reproduced following a broadcast (§ 78 UrhG). However, these rights are typically transferable and may be limited by contract, so the legal protection must be assessed on a case-by-case basis. Furthermore, there are protection periods that generally run for 50 years from publication of the performance, though alternative calculation methods may apply.
What special considerations apply to contracts with performing artists?
Contracts with performing artists are subject to specific legal provisions, in particular those grounded in copyright contract law and neighboring rights law. Thus, it must be noted that performing artists can transfer their rights to third parties (such as a record company or an event organizer) or grant rights of use. The scope of granted rights must be clearly specified in the contract to avoid legal uncertainties. Remuneration arrangements are subject to the principle of appropriateness (§ 32 UrhG), so that artists may assert additional remuneration claims in the case of flat-rate payments if the contractual relationship turns out to be inappropriate. Furthermore, certain rights (such as the right to be named or the right to protection against distortion of the performance) may be inalienable; while these can be transferred, they cannot be completely waived (§ 74 UrhG). For international contracts, the relevant applicable law must also be considered carefully.
How do the rights of performing artists differ from those of authors?
The main difference is that performing artists generally do not create works in the sense of copyright law, but interpret or perform an already existing creative work (such as a piece of music, a play, or a choreography). The authors (composers, poets, directors, etc.) possess original copyrights, while performing artists enjoy so-called related rights—in this context, neighboring rights. These are usually narrower in scope and duration than full copyrights. For example, the rights of performing artists arise from the performance itself, not from the creation of a work. Furthermore, the scope of protection is partly reduced: certain uses that are always protected under copyright law are restricted in the case of neighboring rights (for example in the area of private copying or certain forms of public performance). However, the law now grants a broad range of exclusive exploitation rights to performing artists.
What role does the collecting society GVL play in relation to performing artists?
Gesellschaft zur Verwertung von Leistungsschutzrechten mbH (GVL) is the central collecting society in Germany for the rights of performing artists in relation to their performances. It collectively administers artists’ remuneration claims regarding the public use and utilization of their performances, particularly remuneration claims against users (e.g. radio stations, event organizers, streaming services) for the use of sound recordings (§ 77 UrhG) or broadcasting remuneration. Artists may assign their rights to the GVL for fiduciary administration, allowing GVL to grant the relevant licenses, collect fees, and distribute them to the artists in the name of the rights holders. In this way, GVL plays a key role in efficiently and collectively enforcing remuneration claims that would be very difficult to pursue individually.
What claims do performing artists have in the event of unauthorized use of their performance?
If a performance by a performing artist is used without their consent—for example, recorded, reproduced, distributed, or publicly performed—the artist is entitled to various claims. These include, primarily, claims for injunctive relief under §§ 97, 77 UrhG, which serve to prevent ongoing or future legal infringements. The artist is also entitled to damages or appropriate remuneration (§ 97(2) UrhG), which may be determined based on lost license fees, via specific calculation of damages, or by means of a license analogy. Furthermore, there may be a claim for information regarding the scope and type of use, and, where applicable, a claim for surrender of unlawfully obtained copies against the infringer. Finally, the artist is entitled under § 83 UrhG to demand the destruction of unlawfully produced copies.
Under what conditions can the rights of performing artists be licensed or transferred?
The neighboring rights of performing artists are, as a rule, transferable, meaning they can be transferred to third parties by contract or licensed for use (§ 78 para. 2 UrhG). It is essential that the rights and types of use are clearly specified in the contract. However, a transfer is excluded insofar as it concerns the core area of personal rights, such as the right to be named and protection against distortion. These rights are considered inalienable and cannot be fully assigned (§ 74 UrhG). When licensing, a distinction is made between exclusive and simple rights of use: Exclusive rights allow the licensee sole use and exclude use by the artist themselves, whereas simple rights of use permit parallel use by several parties. Transfers or licenses should always be documented in writing, especially for comprehensive rights. In the case of collectively managed rights, licensing often takes place through the GVL.
What claims exist after the protection period for performing artists has expired?
The protection period for the neighboring rights of performing artists is, pursuant to § 82 UrhG, generally 50 years from the date of performance or publication. After this period, performances become public domain, meaning they may be used, reproduced, or publicly performed by anyone without consent. The performing artist can therefore no longer assert copyright or neighboring right claims. However, personal rights (such as the post-mortem right to be named under § 74 UrhG) may in exceptional cases remain unaffected, provided they do not expire with the end of the protection period or the artist’s death. Contractual claims that exist independently of copyright law (e.g., from ongoing license agreements) must be examined individually, but usually expire at the latest when the protection right lapses.
