Performance income - the facts


It is vital for the future of audio producers that they should participate in revenue generated by their work across all formats, including those yet to be introduced. Since early 1986, Re-Pro in the UK has appointed a group of dedicated (and entirely unpaid) members to investigate various areas of potential income - performance income, income from videos and so forth.

Performance Income

This concern is at the forefront of current Guild activity, particularly in light of the recent EU Directive which seeks to harmonise European law regarding neighbouring rights and performance income. Re-Pro is now spearheading a campaign to ensure that audio producers benefit from performance income. It has forged links with other organisations including the IMF and BASCA, and has - in association with Equity, the Musicians Union, ISM and others - founded the Performing Artists Media Rights Association (PAMRA).

Re-Pro has gained the support of PAMRA in acknowledging that at least a part of the producers' role should be regarded as a performance and PAMRA is expected to argue the producers' case in international forums and performance royalty collecting organisations.

Performance income and neighbouring rights are international concerns which have galvanised 'producer' organisations throughout the world. By working closely with these organisations, Re-Pro will continue its fight to ensure that members receive their fair share of performance income, both in the UK and overseas.

The Facts as at January 1996
Frequently Asked Questions that effect all Studio Producers and Engineers

What is Performance Income?

The Performance Income that Re-Pro has been focussing on since 1986 is generated by the use of records/CDs by broadcasters - radio and TV - and whenever records are played in public... In the UK this income is usually called 'PPL' after the company which is responsible for collecting and distributing it. PPL issues licenses to broadcasters in return for fees that vary according to the size of their audience, advertising revenue, etc. In exchange for the licence fee, the broadcaster is allowed to play any recordings which PPL control - the recordings made by UK labels who are PPL members. PPL claim that they control around 90% of the UK catalogue.

Who receives Performance Income?

After various administrative and corporate deductions, as well as amounts contributed toward anti-piracy campaigns, PPL pays about two thirds of the balance to its member record labels, 20% to certain contracted artists and 12.5% to the Musicians' Union. The payments made by PPL are made on an 'ex gratia' basis which means that PPL is not bound to pay them, nor are they bound to provide any information (in the form of statements etc.) about what the payments are for. As the payments are ex gratia they do not attract VAT.

Why don't Producers get PPL income?

This question has been exercising Re-Pro (and the British Record Producers' Guild before it) since 1986. We could find no justification for uses of our work by broadcasters not attracting income when all the other parties who had created the recording received payment. Furthermore, we anticipated that in the not too distant future, music would be sold via digital transmission rather than on physical formats and we were concerned that if our normal royalty income was reduced we should receive royalties from other methods of sale. Despite various approaches to PPL explaining the position the Guild had taken on behalf of 'studio producers', PPL rejected our claims informing us that PPL's record company members have directed PPL not to pay record producers in any circumstances. Faced with a brick wall we decided to adopt a long term strategy that would, we hoped, eventually allow us to participate as other contributors.

When is a producer not a producer?

The title 'producer' was first used to describe an individual who worked for the producer company and who represented that company at recording sessions. In the '60s, the role began to fall more and more to freelance individuals who had gained a reputation for making excellent and commercially successful recordings. These individuals became known as the 'Producer' although they were not the employees of the record company. This is now the most familiar description of our role used throughout the world. However, in every official, legislative, governmental or legal context the title 'producer' is accepted as denoting the record company - the party whose business it is to manufacture records. So strong is this prejudice that many performance income collecting societies find it almost impossible to consider that something called a 'producer' should have anything to do with performers' revenue!

In the light of this, and especially recognising that we would have to involve ourselves in more and more official consultations, all the 'studio producer' organisations have determined to make it as easy as possible for those who deal with us to understand exactly who we are. To reduce any possible confusion that might arise we often qualify the title 'producer' by adding 'studio' before it or by using a term like 'sound director' or such. Up until recently, there has been no commonly agreed title to replace 'producer' but a European grouping of Re-Pro-like organisations has joined together to co-ordinate their activities. They are called the European Sound Directors Association.

What is GVL?

GVL is the equivalent organisation to PPL in Germany responsible for collecting and distributing performance income. Since the '80s they have recognised performers from other EU countries as claimants for the revenue they collect. When the B.R.P.G. was formed it established that members could join GVL and participate in the money it collects provided that the claims were made in the appropriate way. We engaged the services of various German lawyers to help smooth the claims and many of our members received considerable amounts for uses of their recordings in the German market.

Why are record producers paid by GVL?

GVL will pay a person who has made a creative contribution to a sound recording that has been exploited in Germany. German law has a definition of a performer which includes music directors and conductors even though they do not actually make a noise and so whereas a claim made as a 'producer' may not succeed because GVL would expect a producer to be a non-creative person or even a record company, if the role is described another way, it is more likely to be judged eligible. The basis of GVL payments differ from those of most other countries in that they are based on sales and not broadcasts. Members make annual claims supplying proof of sales or, if you are a session musician, invoices for the services you provided on the recording. GVL is less enthusiastic about claims made through lawyers and agents but there are a number who will undertake to represent you, usually for a share (20%) of the loot. Alternatively, Re-Pro can provide you with English translations of the forms and you can do-it-yourself.

Once UK legislation is established in response to the EU Rental & Lending Directive, it may be economically sensible for Re-Pro members to claim via membership of PAMRA which is likely to have a lower level of administrative charges. Certainly, an organisation that can represent the rights and claims of the majority of performers will have a much stronger case when it comes to collecting overseas royalties.

What has the The Rental & Lending Directive got to do with it?

A 1992 the EC issued a Directive which instructed national governments to create local laws which which harmonised EC law about a number of copyright issues. A part of the Directive gives performers a 'right' to be paid for broadcast and public uses of their work. This right already exists in many other countries but having a 'right' in the UK should change the whole basis of payment to performers. We say 'should ' because, the UK Government may be persuaded to frame the new law in such a way as to diminish the scope of the 'right'. For example, the law may allow the revenue to be offset against advances. We will not waste time speculating but Re-Pro has been and will continue to be directly involved in making your views known to the powers that be.

What is PAMRA?

PAMRA, the Performing Artists Media Rights Association, is a new organisation set up by the principal performers' organisations in the UK to represent performers' interests. PAMRA's main task is expected to be handling the performers' share of the revenues that will be generated as a result of the forthcoming new law. Re-Pro has been involved in setting-up PAMRA from the outset and now has a place on its Advisory Council and has supplied one of the nominated Directors, Benny Gallagher.

Why is Re-Pro involved with PAMRA?

The BRPG spent considerable energy in its early days establishing exactly what the 'studio' producer's job entailed and we came up with a general description which divides the job into three areas of responsibility: administrative, technical and creative. Our position in PAMRA is concerned with our creative role and in establishing that one part of our job amounts to a performance. Every 'studio producer' and many engineers feel that the creative part of the job is increasing as artists demand state-of-the-art technologies which require artistic and musical decisions to be made by the recording team. In addition, many 'studio producers' working with sequencers, digital audio editors, samplers and so forth are creating performances themselves. Also, some see the job of balancing the various contributions to a recording, setting tempos, or directing the performances of others as being parallel to that of an orchestral conductor - a role internationally recognised as a performance. PAMRA, being a new organisation, now has a great opportunity to establish its rules and payment schemes in line with the realities of the recording processes of the '90s. These, we hope, will recognise the contributions by participants such as re-mix engineers, programmers, session directors and conductors in their own right - rather than via some tenuous juggling with words and their meanings.

What about the record companies?

Historically, our contractual relationship with record companies has assigned to them whatever rights we have in the © of the recordings we make. This contractual act is what gives the record companies the ability to exploit recordings as entirely their own property - until these rights are transferred by contract, the 'studio producer' is a part owner in the © in the sound recording. It is claimed to be commercially vital, especially when so many new areas of exploitation are opening up, for the record companies to have complete ownership and control of recorded product. New rights for performers may change the whole balance of the situation - watch this space!

We are hoping to persuade the record companies to make a simple change to producer contracts that would acknowledge our initial ownership as well secure by specific assignment all of our rights in the recording to the companies for them to exploit in perpetuity. Tied to this would be a second simple change which would extend the royalty provisions in the contract to include a pro-rated share of all performance revenues.

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