Media, Entertainment and the Arts
At Adams & Adams, we are specialists in the fields of intellectual property law, commercial law, property law and litigation. In fact we are able to assist clients with all of their legal matters, excluding criminal ones, through South Africa, Africa and the world.
The firm is proud of the 32 international and local awards we have received over the past year. This is indeed a first for any South African law firm. We are also delighted to have had the honour of being an official sponsor of the 32nd Annual Loerie Awards and the sponsor of the most coveted Young Creatives Category at the awards. We are always on the lookout for ways to benefit out clients as well as supporting local talent in the country.
We are therefore delighted to advise of the launch of the Adams & Adams Media, Entertainment and the Arts Group. This group has been constituted to harness the specific expertise of certain partners and professionals to asssit clients and the community in all the areas of this vast minefield of intellectual property. The group focuses specifically on providing specialist legal services to the local entertainment industry. If you are or know of an actor, producer, broadcaster, writer, designer, comedian, musician, dj or a creative personality in the entertainment industry, your proprietary or creative business venture or interests, no matter how big or small, may be subject to protection. Our policy is to ensure that your rights are adequately protected and we also assist with commercial advice regarding your creative ideas. Our attorneys have extensive experience and understand the needs of individuals and large organisations in the industry.
For more information and advice, contact our Entertainment Law specialists.
Back left to right: Somayya Khan, Danie Strachan, Jani Coetzee, Nicolette Biggar. Front left to right: Nishan Singh, Mariette du Plessis, Nolo Khechane, Jenny Pienaar , Phillip Haupt. Not pictured: Werina Griffiths.
See: Local artist designs Tag Heurer box for charity auction piece
See: Coldplay copying other artists?
See: The New York Times, Record Industry Braces for Artists’ Battles Over Song Rights
See: International protection for performers
See: POSA presents petition to the Minister of Trade and Industry
See: Idols need protection
See: What’s in a name in the entertainment game?
Is my performance protected?
Since 1967 already, there has been statutory protection in place for actors, singers, musicians, dancers and other persons who perform literary, musical, dramatic and/or artistic works. This protection is afforded in terms of the Performers’ Protection Act 11 of 1967 (“the Act”).
The conditions for protection in terms of the Act is that the performance must take place, be broadcast live, or be first recorded in South Africa. A performance is protected in terms of the Act for a period of 50 years from the date of the performance.
The Act entitles a performer to prevent a person from:
- broadcasting or communicating to the public a live performance;.
- making a recording of a live performance;.
- making a reproduction of a recording of the performance, if the original recording was without the performer’s consent, or for a purpose other than that for which the performer had given consent; or.
- broadcasting or communicating the performance to the public for commercial purposes, without the payment of a royalty to the performer.
The infringement of the provisions of the Act could lead to criminal fines being imposed and the payment of damages to the performer. Should require further advice on the topic, please do not hesitate to contact us.
Collecting Societies
If you have written a piece of music or lyrics for a song, or if you are an artist performing a song, or a record company making sound recordings, chances are you are the owner of certain rights (copyright) which subsist in these works in terms of the Copyright Act and royalties may be due to you whenever the work is copied, adapted or played in public.
But how do you go about administering these rights (i.e. giving persons who wish to reproduce or perform these works the necessary authority to do so) and collecting any royalties due to you?
As an artist, you want your music to be played as much as possible in order to get exposure and promote your work. Each time your music is broadcast by, for instance, one of several radio stations, the station requires a licence from you to do so and is also required to pay a royalty fee. If a separate transaction had to be concluded for each song, of which the composer, singer and songwriter are all different (i.e. three different copyright owners), it would be an incredibly time consuming and costly task. In addition, how would artists possibly police all radio stations, television stations, dance clubs, restaurants, shopping centres and other businesses which play music to the public each day?
This is where the collective administration of these types of rights come in. Collecting societies exist to administer the copyright in these types of works by negotiating licences (and thereby also assist in the protection of copyright) and collecting and distributing royalties to the owners of the copyright. It makes economic and administrative sense from both the copyright owners’ side as well as the institutions wishing to make use of these works.
A collecting society may require that certain rights be assigned to it. What this means is that the collecting society then becomes the copyright owner which entitles it to issue the required licences to music users. This is often done by way of so-called “blanket licences”. A blanket licence grants a music user access to the entire repertoire of the collecting society. An agreement will be concluded between the collecting society and its members regarding the collection and distribution of royalties which accrue due to such licensing of the music.
The principal of collecting societies administering these rights on behalf of copyright owners are recognised worldwide and South Africa is no different.
There are two major collecting societies in South Africa, namely the South African Music Rights Organisation (SAMRO) and the South African Music Performance Rights Association (SAMPRA).
Both of these societies have been established in terms of the Copyright Act and have the necessary accreditation in terms of the Regulations to the Act.
SAMRO is the largest organisation in Africa involved in the collective management of copyright and administers a variety of different rights on behalf of its members which include performers, lyricists, composers etc. There are certain requirements for becoming a SAMRO member, but it is essentially open to any artist (or publisher) to become a member.
SAMPRA, on the other hand, represents the recording industry of South Africa. It collects and distributes royalties to the members of the Recording Industry of South Africa (RiSA). Only members of RiSA are therefore entitled to membership of SAMPRA. While RiSA’s members are mainly record companies, artists who distribute their own recordings may become RiSA members (and, in turn, SAMPRA members).