Common use of Performance Rights Clause in Contracts

Performance Rights. If the Company wishes to acquire publishing rights in any composition and if publishing rights in any composition are granted to the Company then it will want to receive and retain 100% of the so-called "publisher's share" of performance income. The same applies to the ‘label share’ in the masters if additional rights are granted to the Company. The Composer must always be entitled (as in this clause) to collect 100% of the writers’ and performers’ shares of public performance income (collected by PRS/PPL and other performing rights organisations (‘PROs') ) from the Works when they are used in the Programme. Specifically, the PPL only collect ‘neighbouring rights’ income (which is what income from public performance of masters is called outside the UK) when the masters have been ‘commercially released’. It is usually sensible for the Composer to join the PRS or another PRO; the Company or its licensees must be obliged to pay all public performance monies that may be due for broadcast (etc) of the Programme. If the Composer is a member of a PRO, the performance right in Composer’s musical works is automatically assigned to the relevant PRO. The relevant PRO licenses broadcasts (etc) then distributes the income generated to composers, publishers and other copyright/performance rights owners according to the duration and medium of each performance or broadcast (etc). In order to distribute the income, the relevant PRO relies on receiving accurate music cue sheets from broadcasters. The cue sheet prepared by the Composer should therefore include separate titles and timings for each cue. There should be an obligation on the Company to use the accurate cue sheet. The BBC, Channel 4 and ITV all have blanket licence agreements with the PRS covering the public broadcast of music on TV and radio. Composer should make sure that the credit Composer wants is made known to the Company and that Composer provides the Company with any photographs and biographies that Composer wants to be used in promotion for the Programme. The warranties in this clause are fairly standard and essentially promise that the Composer owns all the rights. Composer needs to check these carefully though to ensure they are all true. The Composer should make sure the Works are original or, if they intend to include any samples, Composer must first check with the Company, then clear them and get company’s approval before including anything in the final version. All the Works must be fully cleared by the Composer for synchronisation with the Programme, so that the Company can license its rights to broadcast and exploit the Programme worldwide. Under this clause the agreement terminates automatically if the Company enters into liquidation, receivership or administration and then third parties can only use the Works after they enter into a new agreement with the Composer. The Company may not in practice be able to agree such a clause, depending on the terms of any agreement it has with financiers, broadcasters etc. but something should be added to help protect against these circumstances. An assignment by Company can mean the Composer is not legally entitled to receive any more money for exploitation of the Works. Under this clause Company cannot assign the agreement to any third party unless the assignee enters into a new contract with Composer to fulfil Company’s obligations. The Company may not in practice be able to agree such a clause, depending on the terms of any agreement it has with financiers, broadcasters etc. but should add something to help protect Composer in these circumstances. Both parties need to keep the terms confidential, unless they become generally known through the fault of neither party, but Composer can make their involvement in the Programme known. Even if Company breaches any term of the agreement then Composer cannot stop exploitation or use of the Programme in any way – the Composer is only entitled to take legal action to recover monetary compensation. This is standard and will be required by the third party financing agreements that will be signed by the Company.