The performer (the author of the performance) is the citizen whose creative work is the performance - the artist-performer (actor, singer, musician, dancer or other person who plays a role, reads, recites, sings, plays a musical instrument or otherwise participates in the performance of a work of literature, art or folk art, including a variety, circus or puppet show), as well as the director of the performance (the person who performed theatrical, circus, puppet, or other theaters of representation) and conductor (Art. 1313 of the Civil Code.)
The contractor owns the rights provided for by Art. 1315 of the US Civil Code, which are reflected in Fig. 6.2.
Fig. 6.2. Performer rights
Exclusive Execution Right
Executors exercise their rights in accordance with the rights of the authors of the performed works.
The rights of the performer are recognized and act irrespective of the existence and operation of copyrights to the work being performed.
The contractor has the exclusive right to use the performance in accordance with Art. 1229 of the US Civil Code in any way that does not contradict the law (exclusive right to execute), including by the methods specified in cl. 1317 of the Civil Code of the United States. The contractor may dispose of the exclusive right to perform.
When investigating the rights of the performer, it is necessary to pay attention to the fact that there can be several performers. In this case, it is necessary to resolve the issue of their use of related rights to joint execution.
The Rome Convention in Art. 8 provides for each participating State to independently determine the specifics of the ways in which the rights of performers provided by the Rome Convention will be implemented if several performers participate in the same performance, including when performing works by orchestras, choirs, ensembles, groups and other large teams of performers.
United States legislation in Art. 1314 of the Civil Code of the United States provides that adjacent rights to joint execution belong jointly to the members of the performers who took part in its creation (the actors engaged in the play, the orchestra members and other members of the performers' group), whether it forms an integral part or consists of elements, each of which has an independent meaning.The adjacent rights to joint execution are exercised by the head of the collective of performers, and in his absence - by the members of the collective of performers jointly, if the agreement between them does not provide otherwise. Another procedure for the implementation of related rights to joint execution, for example, their implementation by one of the performers on behalf of another or others, should be provided for by agreement between the members of the performing team.
If joint execution forms an inseparable whole, none of the members of the team of performers has the right, without sufficient grounds, to prohibit its use.
An element of joint execution, the use of which is possible independently of other elements, i.e. an element that has an independent meaning can be used by the creator who created it at its own discretion, unless otherwise agreed by the members of the collective of performers.
To the rights of performance created by the performer in the performance of the service assignment, including the rights to the joint performance created in this manner, the rules of art. 1295 of the US Civil Code.
The current civil law in Art. 1317 of the US Civil Code provides for nine ways of using the performance, which are reflected in Fig. 6.3.
The exclusive right to perform does not apply to the reproduction, broadcast or cable communication, and the public execution of the performance record in cases where such recording was made with the consent of the performer, but all the reproduction, communication by air or cable or public execution is carried out in for the same purposes, for which the consent of the performer was obtained when recording performance.
When concluding an agreement with the contractor for the creation of an audiovisual work, the performer's agreement to use the performance as part of the audiovisual work is assumed. The consent of the performer to the separate use of sound or image recorded in an audiovisual work must be expressly expressed in the contract.
When using a performance by a person who is not its executor, the rules of Section 2, Art. 1315 of the US Civil Code.
Fig. 6.3. Ways to use the performance
The Executor may dispose of the exclusive right to perform.
The norms of the fourth part of the US Civil Code provide for the possibility of foreclosure not only for the exclusive right, but for income received from using the performance. strong>
The foreclosure is not allowed on the exclusive right of execution belonging to the performer, except for the case of foreclosure but to the pledge contract, which is concluded by the executor and the subject of which is the exclusive right to specific performance specified in the contract and belonging to the performer. The recovery may be made to the rights of the claim of the executor to other persons under contracts on alienation of the exclusive right to performance and under license agreements, as well as to income received from the use of performance.
Recovery may be applied to an exclusive right that belongs not to the performer himself, but to another person, and to the right to use the performance that belongs to the licensee.
In case of the sale of the right to use the performance of the performance from public auction for the purpose of foreclosure on this right, the performer is given the pre-emptive right to acquire it.
Personal non-property rights to performance
The right of authorship - the right to be recognized as the author of the performance. The author's right of authorship is legal, i.e. based on the law the ability to be recognized as the author (creator) of performance.
Right to the name - the right to indicate your name or pseudonym on copies of the phonogram and in other cases of using the performance, and in the case provided for in Cl. 1314 of the US Civil Code, the right to specify the name of the collective of performers, except when the nature of the use of the work excludes the possibility of indicating the name of the performer or the name of the collective of performers.
The right to inviolability of performance - the right to defend the performance against any distortion, i.e. from entering into a record, to a message on the air or to a cable, changes that lead to a distortion of the meaning or to a violation of the integrity of the perception of performance.
The Exclusive Right to Perform is valid for the lifetime of the performer, but not less than 50 years from 1 January of the year following the year in which the performance was performed, or recording a performance, or an execution message on the air or by cable.
If the perpetrator has been repressed and posthumously rehabilitated, the term of the exclusive right is considered extended, and 50 years are calculated from January 1 of the year following the year of rehabilitation of the performer.
If the performer worked during or participated in the Great Patriotic War, the period of validity of the exceptional character is extended by four years (Article 1318 of the Civil Code of the United States).
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