A concert musician is not always an artist

The Supreme Court ruled a single performance of a concert by a musician, a member of the orchestra, does not create a composition – we can not speak in such cases about the result, but only about due diligence. The Supreme Court held that in such cases the organizer and the musician are not bound by contract for the provision of services (judgement of January 10, 2017, Ref. No. III UK 53/16).

Pomeranian Dukes’ Castle in Szczecin, as the co-organizer of the festival engaged musicians to perform a concert by signing contracts with themfor the provision of services. One of these agreements, the subject of which was the preparation and performance of an organ concert with a band, was challenged by the Social Insurance Institution. In its decision the Social Insurance Institution concluded that the musician – as a person performing the contract for the provision of services – is subject to mandatory pension, disability, and workman’s compensation social security contributions.

The court of first instance, dismissing the appeal against the pension authority decided the musician performing the parts during the concert did create a work, but only performed a services contract. Although the Court did not deny that instrumentalist “is an artist musician, however, this circumstance does not automatically mean that she is the creator of a work” (!). The court also noted that the concert “did not function as a separate entity,” and the activity of the artist “has not led to the creation of the concert,” arguing that it was one of the many “performers” participating in this event, she has not been given any solos, and, in addition, she had worked under the direction of a conductor, with whom she had to “comply fully”. The District Court concluded the artist was not commissioned to perform the work, but rather to only carefully execute certain actions, and the instrumentalist implementing the provisions of the agreement “was not an artist, but a performer” (!).

The Szczecin Court of Appeal dismissed the appeal of the Pomeranian Dukes’ Castle finding the lower instance court made correct findings of fact and legal assessment. The Court of Appeal stressed a contract for the performance of services, the object of which is to perform a concert, is possible, provided, however, that the concert can be attributed the characteristics of the work and these are provided only by the performance by a musician, “a piece with custom, unique characteristics meeting criteria for creative and individual work. However, the actions involving specific skills and talent, but having the imitative character, are not subject to copyright”.

The Supreme Court, dismissing the cassation appeal, attempted to determine whether the agreement linking the concert organizer and the musician “was reflected in the model assigned the contract for the performance of work, or should be judged as a liability, the object of which is to provide services.” The Supreme Court emphasized that the commitment under the contract for work is “not for the performance of any work, but on the realization of a specified work,” and the “specification” is done primarily during the laying out of the contractual provisions. However, the commission contract does not put emphasis on the “specification” of the effect, but rather on “determining” the category of the enforceable legal action (service). The Supreme Court has pointed out in the case of a contract concluded with the musician “there was a shift of the focus from a functional aspect to the final one”, and the subject of the contract for the work in the form of the preparation and execution does not show clearly the detailed parameters of the agreed outcome. No specification of the shape of individualized work also confirms, in the Supreme Court’s opinion, the subordination of the artist (one of many) to the conductor. By the way, it’s hard to imagine the performance of any concert without the “subordination” to the conductor (!).

Contribution to the performance of a concert. Artistic performance

It seems the court of first instance, the court of appeal, and also the Supreme Court limited to hearing only on the basis of the civil law (the labour law), ignoring completely the copyright related aspects. A great surprise, not only in the music industry, caused the statement about the lack of creative contribution of an orchestra musician to the performance of a concert piece, because it is obvious that every musician involved in the performance of the concert contributes to its artistic rendition. It is difficult at the same time to question the fact that the performances of a single piece, even by the same artist, different from each other. An orchestra works as a machine in which all the elements have to “work in harmony” and together to create the perfect sound. Thus, on the shoulders (or rather, in his hands) of musicians is the responsibility for the sound effect of the entire orchestra. And this is not changed the fact that the entire concert performance is “guided” by the conductor.

Despite the fact that the musician’s actions have not led to the creation of new work, this does not mean that rights to performances has emerged, which are subject to the same protection. According to the article 85 paragraph 1 of the Law on Copyright and Related Rights, each performance of a work or works of folk art shall be protected irrespective of its value, purpose, and manner of expression. As part of artistic performances the law recognizes in particular the actions of the following: actors, reciters, conductors, instrumentalists, singers, dancers and mimes and other persons making a creative contribution to the creation of a performance.

Artistic performance is protected regardless of complying with any formalities (article 101 in conjunction with article 1, paragraph 4 of the Act on Copyright and Related Rights). The doctrine emphasizes the fact that the same protection will be granted to both outstanding performances and theatre performances, as well as roles in television series, rehearsals or concert performances.

It is therefore difficult to agree with the position of the Supreme Court, presented in this ruling, that only a performance of a “custom, unique characteristics meeting criteria for creative and individual work” so worthy of protection and may be subject to the contract for work.

Uncertainty among artists

The commented ruling of the Supreme Court as the first so clearly indicates the performance of a work by a musician participating in a concert should be treated as the provision of services. The ruling may make quite a stir not only in the musicians’ environment, but also in the wider artistic community. For those involved in cultural activities it can mean the risk of challenge by the authorities of hundreds of pension contracts concluded with artists and to the payment of contributions for past years. For many of them it may indicate the end of such activity. We can only hope that the pension authorities will not go in this direction, taking into account the good of the wider culture and the interests of the artists themselves.