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If a performance (such as a cultural evening, a personal concert, etc.)involves the use of a copyrighted work by others, the organizer of performances shall, in advance, obtain the permission of the copyright owner.If the copyright owner’s permission is not obtained and infringement is caused because of the unauthorized use, the performance organizer, not the performer, shall bear legal responsibility.

Case: A Chinese singer A performed another singer B’s song “Song M”at A’s own concert tour without obtaining B’s permission in advance or paying the remuneration.This concert tour was co-hosted by Company X and Y, and Company Z was the local partner of this tour concert in Luoyang, China.

Singer B, as the copyright owner of this song, sued to the court.The court finally ruled that the three defendants Company X, Y and Z infringed singer B’s copyright and shall jointly compensate singer B RMB 100,000 yuan (including reasonable expenses).((2018) Zhe No.0109 Min Chu No.17142)

According to the relevant provisions of the Copyright Law, when a performance organizer organizes a performance, the performance organizer shall obtain permission from the copyright owner and pay the remuneration.(https://www.daowen.com)

If a performer uses works whose copyrights are enjoyed by others during the performance, the performance organizer will have a direct interest relationship with the copyright owner of these works.The performance organizer shall be responsible for obtaining prior permission from the copyright owner of the work if the work is to be used by the performer in the organized performances.

The infringer (performance organizer) in the case violated the principle of “obtain authorization first, then use”, and used B’s musical works for the performance at a commercial concert without the plaintiff’s permission or paying remuneration, which infringed B’s right to perform.The infringer shall bear civil liabilities such as stopping the infringements, eliminating the effects of the act, making a public apology or paying compensation for damages, depending on the circumstances.

In the determination of the amount of infringement compensation,according to relevant laws and regulations, if the copyright or other rights related to copyright are infringed, the infringer shall pay compensation on the basis of the actual losses of the copyright owner; if the actual losses are difficult to be calculated, compensation may be made on the basis of illegal gains of the infringer.The amount of compensation shall also include the reasonable expenses paid by the right owner to stop the infringement.If the actual losses of the right owner or the illegal gains of the infringer cannot be determined, the people’s court shall adjudicate compensation of RMB 500,000 yuan or less on the basis of the seriousness of the tortious act.

According to the above cases, in judicial practice, the court will determine the amount of compensation on the basis of infringer’s infringement plot, subjective fault, the price of concert ticket, scale, the number of case-related songs, popularity, fee standards regulated by the Music Copyright Society of China, the use patterns of the works, the expenses to conduct investigation and entrust lawyers to represent a lawsuit paid by the Music Copyright Society of China and other factors.