With much of the world in varying degrees of lockdown, live entertainment events in front of an audience are likely to be one of the last activities to reopen to the public. Creators and brands are filling that gap – and keeping their following engaged – by holding virtual events online. This creates advertising opportunities for brands, which are increasingly using virtual events including compilations of recorded home-performances, as advertising while traditional video production remains impractical.
One aspect of normal life that COVID-19 has not changed is the need to obtain the necessary rights clearances for content. The precise clearances required vary depending on the nature of the content and the manner in which it is made available.
Rightsholders will not necessarily be able to accommodate creators' and brands' desire to move quickly on clearances. Virtual event hosts should therefore be ready to move early and nimbly, with a plan for the subject matter and usages they wish to clear.
Re-purposing existing event recordings
Where a virtual event host plans to offer access to recordings of past events that they hold in their archives, the host needs to consider whether past clearances obtained for the recording cover the new use now contemplated. Hosts may need to work around limitations in past clearances (eg in relation to the forms of media in which the recording can be offered) or obtain new clearances where previous licences have expired or are too limited in scope.
What subject matter needs to be cleared?
Clearances need to cover all of the relevant elements of the event. These might include:
- The underlying subject matter of the event – for example the music, play, script or other copyright-protected work that is performed.
- Any music used or overlaid in the recording of the event – even if music is not the main subject of the event.
- The video and/or audio recording of the event – in some instances the event host may be the producer of the recording, in which case it is nevertheless good practice to seek assignments from all parties involved in making the recording, particularly where performers are recording themselves at home. Where the recording is made by a third party, rights to use the recording should be cleared.
- Performers' rights of the individuals whose performances feature in the event.
- 'Image rights' of those individuals who appear in the event. Although 'image rights' are not formally recognised as a specific category of intellectual property in the UK, it is good practice to obtain written consent from those who appear in the event to use their name, pseudonym, image, likeness, voice and (if applicable) biographical information and identifiable possessions. This is also important for data protection purposes and is required by the Advertising Standards Authority if members of the public will be featured in advertising. Professional performers and their agents are likely to negotiate these "image rights" releases to include detailed rights to approve the way that the performer is portrayed. For members of the public, a short standard form release can be used.
Depending on the circumstances, the event host may already have rights to some of these elements.
What activities need to be cleared?
Clearances also need to cover all relevant activities that the event host will be carrying out. In most cases, rightsholders will delineate the licensed activities narrowly so it is important for hosts to check these carefully against the contemplated use. For example, having a licence to live stream an event does not give the host a right to record the event or make it available on demand. Consider:
- The underlying subject matter of the event: The event host needs to have the right to reproduce the event subject matter and communicate it to the public. In practice, rightsholders often seek to specifically delineate the manner in which the licensed "communication to the public" occurs, so the event host needs to make sure that all the forms of media and types of services in which the event may be shown are covered. The event host will need the right to reproduce the subject matter as necessary to communicate the event to the public via the various permitted forms of media. Where the event host is recording a live event, they will also need to obtain the right to reproduce the event subject matter in the form of the recording.
- Any music used or overlaid in the recording of the event: In principle the clearances required for music are the same as those required for other types of underlying subject matter. However, commercial music licensing can be complex in practice and we break down the different clearances that might be needed – and their specific music industry terminology – in the section "Using music" below.
- The video and/or audio recording of the event: The clearances required are the same as for the underlying subject matter of the event (albeit that the right to record the live event is not relevant when clearing rights to use the recording).
- Performers' rights: Depending on the form the event will take, the event host may need to obtain clearances to broadcast the performance live, to record the performance, and to make the recording available to the public (again ensuring that all relevant forms of online media and services are covered where the rightsholder seeks to delineate these narrowly). Additional considerations apply to performers of recorded music, which we address in the section "Using music" below.
- Image rights: Since image rights are not a category of intellectual property right, there are no specifically prescribed activities that need to be cleared from an intellectual property perspective. However, image rights releases should set out the contemplated uses clearly and specifically with enough detail for the performer to understand exactly how their image will be used. This is important from a data protection standpoint, as well as to maintain good relationships with talent – the release should provide all information necessary under data protection laws.
Music clearances can be complicated as the various rights invoked by using commercial music are generally held by a number of different people. For clearance purposes, music is made up of:
- Rights in the musical and lyrical compositions: Clearances for these elements must be obtained if music or lyrics will be played or sung, regardless of whether this is done through the playing of a pre-existing sound recording or as a live performance. For commercial music, the right to communicate music to the public and associated acts of reproduction are generally licensed by collecting societies (also known as collective management organisations or CMOs), namely PRS for Music in the UK. PRS for Music offers a variety of standard form licences, which are explained on its website (see here for standard licences for online use). Rights to record a live performance in audiovisual format, and synchronising music with visual elements, must be obtained directly from the publisher. We address 'synchronisation' rights in greater detail below.
- Rights in the sound recording: Where pre-recorded music is used, rights in the sound recording must be cleared separately from the musical and lyrical compositions. Sound recording rights for commercial music are generally owned by the record label and, depending on the contemplated usage, can be obtained from the label or from a collecting society (if the label is a member), namely PPL in the UK. PPL offers a range of standard-form licences for various types of online radio and television services and online streaming (a list of online uses licensed by PPL is available on its website here). PPL is not mandated to license most types of on demand use – this will need to be negotiated directly with the label, together with 'synchronisation' rights if needed. Sound recording rights are not relevant if the event consists of a live performance of music, without use of any existing recordings. If there is any use of existing recorded music, even by way of background music or sampling, then sound recording rights need to be cleared.
- Rights of performers who feature in a sound recording: Record labels generally take an assignment of performers' rights from the performers who feature in a sound recording. Most types of performers' rights will therefore be wrapped up in the sound recording clearance (though event hosts should check when licensing that this is the case). Performers retain an individual right to receive "equitable remuneration" when sound recordings featuring their performances are broadcast or made available to the public. The payment of this "equitable remuneration" is in practice generally handled by the label or collecting society, but event hosts should ensure that sound recording clearances provide expressly that the licence fee includes the performers' "equitable remuneration" and that no further amount is payable.
The activities that need to be cleared are essentially the same as set out above for non-music subject matter, recordings and performances. However, the terminology used in the industry can differ and rightsholders often refer to "performing rights", meaning "communication to the public" rights, and different "mechanical rights", meaning the different acts of reproduction that might be required.
An additional clearance is required for 'synchronisation' rights where commercial music will be used alongside new visual content. This could include the audiovisual recording of a live performance of music or the use of an existing sound recording alongside new video content. 'Synchronisation' rights are not a separate category of right under copyright law. However, most commercial music licences expressly prohibit both the use of music alongside visual content and the use of music to promote any products or services, such that the ability to carry out these activities needs to be cleared separately. 'Synch' licences are generally individually negotiated with the publisher, in respect of compositions, and with the label, in respect of sound recordings. Performing and mechanical rights for the music still need to be cleared in the usual way, including with the relevant collecting societies, as described above.
Event hosts should also bear in mind that different collecting societies are mandated to license music in different territories. If the host wishes to make the virtual event available in territories outside the UK, clearances will need to be obtained for all relevant territories.
What to do if you are thinking about holding a virtual event
Rights clearances for virtual events can seem complicated, particularly for brands that are not accustomed to dealing with them. This particularly true if commercial music will be used and if virtual events will be accessible in multiple territories. If you are thinking about holding a virtual event, and/or using a virtual event for advertising purposes, we are available to advise you on the different ways you can do this – and to obtain the necessary clearances – based on your commercial requirements and any practical constraints.