The granting of usage rights is based on types of use. If one wants to use a copyrighted work, one must sign an agreement with the author. While a verbal agreement is sufficient, one should conclude a written contract to ensure better verifiability. This applies especially in case of larger productions/projects. This contract should contain detailed descriptions of the individual types of use, i.e. for which economically independent form of use one would like to utilize the work.
It is possible to grant usage rights with spatial or temporary limitations, as well as limitations with regards to content.
(Since 2008), the author also has had the option to grant usage rights for yet unknown types of use. He/She has the right of withdrawal, for example, to renegotiate a new type of use – and to achieve higher compensation.
There is the so-called “purpose-of-transfer” rule, which adheres to the following rule of thumb: If the parties did not explicitly discuss a type of use, i.e. mentioned in the contract, the courts assume that this use was not subject to the contract and that no rights were granted for this form of use.
Fundamentals of contract design for performing artists
A generalization such as “the company/the theater acquires all rights to the choreography” is insufficient and leads to legal uncertainty. The individual types of use, i.e. for which economically independent use one would like to utilize the work, should be described in detail. While generalized agreements are permitted, they carry the risk that the choreographer may have a claim to additional compensation in case of great unforeseeable success of the production.
Compensation: It is important to note that, under German copyright law, the author is entitled to reasonable compensation for the granting of rights, i.e. if a choreographer is commissioned, two payments must be made: one for his/her general activity, in form of a service contract, i.e. the fee for contract labor, and in addition, remuneration for the necessary granting of usage rights.
What law applies?
For international theater and dance productions with a high percentage of foreign artists, one must always keep an eye on the question of which national law is applicable. If a German artist signs a contract with a foreign artist living abroad, for example, a choreographer, the question regarding the applicable law is determined as defined by the Rome I Convention. Under Article 3, Paragraph 1 Rome I, the law chosen by the contractual parties shall apply. In a contract one may thus stipulate that German law and therefore German copyright contract law shall be applied. As a German artist, one should take advantage of this choice of law so as to avoid having to deal with foreign legal systems.
If no particular law is chosen in the contract, the contract is governed by the law of the country in which the party that performs the service specified in the contract habitually resides (Art. 4 par. 2 Rome I).
A Swedish choreographer develops a choreography for a German company and receives remuneration. The German company continues to perform the play and goes on tour. Another choreographer produces the work again in another context. How should the right to use the choreography be stipulated in a contract in advance?
If the company has not entered into an agreement with the Swedish choreographer regarding the applicable law, Swedish law applies, as the choreographer provides the service characteristic of the contract, i.e. develops the choreography and transfers the usage rights. The contract would thus be subject to foreign jurisdiction so it is highly recommended that the company insists on concluding the contract under German law by express agreement on the application of German law. If the company wishes to perform the work, this should be specified in the contract. The choreographer grants the company the right to perform the choreography XY.
In this context, one should think about the following questions:
-Does one obtain the exclusive rights to perform this choreography?
-In which countries will the choreography be performed (for example, in Germany, across Europe, or worldwide)?
-How long does one want to use the choreography (for example, 1 year, 10 years, or for as long as the choreography is protected, i.e. up to 70 years after the death of the choreographer)?
-Are others supposed to be able to perform the work, i.e. does the company wish to sublicense the work?
All these questions need to be explicitly mentioned in the contract for the benefit of the company; otherwise the aforementioned “purpose-of-transfer” rule applies, including the general rule that anything not explicitly mentioned is not covered by the contract.
If both parties had not entered into any specific agreements, except maybe to have the contract governed by German law, the company might have been able to perform the choreography, but even then the first questions would have arisen (for example, whether a performance outside of Germany would be permitted). The example shows that all key issues – particularly regarding possible future options concerning the choreography - must be contractually arranged to avoid legal uncertainty.
Contract specifics for performing arts
There are a variety of contractual options regarding performing arts and generalization is difficult:
For stage and engagement contracts it is important to note that these are usually work contracts, with the result that § 43 UrhG applies with respect to the question of the granting of rights. The specifics of the stage tariff agreement law apply.
Seasonal and guest performance contracts may be classified as work contracts and artists signing such contracts are thus not considered freelancers. The differentiation between these contracts and service contracts (and thus freelance work) is difficult in individual cases. The decisive criterion is the dependency on instructions.
For stage performances, performing artists are usually subject to a collective agreement, i.e. the standard stage contract. The collective agreement distinguishes between the stage members’ obligations to cooperate and the transfer of rights.
For contracts with composers for the purpose of producing music for a dance or theater production, it must be considered whether the composer is a GEMA member or not and whether the "small" or “grand” rights are concerned.