The distinction is frequently at issue because it relies on imprecise criteria which must be construed on a case-by-case basis. Our purpose here is to shed light on this rather hazy subject.
The legal framework
The legal authority granted to SUISA by the Federal Institute of Intellectual Property (IPI) relates to “non-theatrical musical works”. This concept was clarified by an ordinance issued by the Federal Department of Justice and Police on 23 February 1972. Today, that ordinance is no longer formally in force, but the Federal Court deemed that the principles contained therein could still be relied upon to determine what a non-theatrical musical work is: in this regard, current law has simply taken over the former legal provisions (case 2A_180/1994, Judgment of 10 May 1995). SUISA incorporated the criteria of the 1972 ordinance into its General Terms and Conditions of Rights Administration which are part of the contractual documents signed with its members.
Simplifying slightly, one could say that the non-theatrical music in SUISA’s sphere of competence consists of all musical works with the exception of dramatico-musical works and certain ballet musical works. These exceptions give rise to what are known as “grand rights”.
What is the scope of application of grand rights?
There is an abstract definition for grand-rights creations: these are “works with a storyline portrayed by persons playing set roles, which rely on music to such an extent that they cannot generally be used without it”.
No doubt … but what does that mean in practice?
- Firstly, the work must have a storyline. But not just any storyline: SUISA is always responsible for concerts, even if there are dancers accompanying the artist, or a light show, costumes, or other staging elements. etc. For grand rights to be attached to a work, there must be persons playing set roles. That is why the rights in operas, operettas and musicals are not managed by SUISA.
The requirement of “persons playing roles” is basically fulfilled when a story unfolds with performers on stage. But that may not always apply: “abstract ballets” for example, do not have a script but rely on expression through dance. For a work to be deemed a grand-rights work, the dancers would have to play set roles even if they do not “tell” a story. For example: one dancer represents good and the other evil, one symbolises earth, another the moon. This “role-play” needs to bear a significant weight in the representation of the work, it cannot merely be secondary to the music.
- Moreover, the storyline must depend heavily on the music. A relatively widespread misconception needs to be clarified in this regard: whether or not the music was especially composed for the staged work is not decisive. Certain pre-existing musical works may become integral parts of a dramatico-musical work (with permission from the authors) if the staged performance relates to grand rights; conversely, however, music that has been especially composed for the stage (for example) will remain a non-theatrical work under certain circumstances. What counts basically is how closely intertwined the music is with the storyline.
It is customary for lawyers to say that a dramatico-musical work cannot be performed without music, or with different music. This statement may be an over-simplification, but it has the merit of pointing the way: for example, when the lyrics are sung, it is hard to imagine the work could be staged without music or with different music. This is why operas, operettas, and musicals are grand-rights works. Conversely, if a play contains a scene where an actor listens to a song by U2, it is totally conceivable for the same play to be staged with another song by another ‘80s rock group. The U2 song, therefore, is and remains a small-rights work.
Nevertheless, there are cases where it is more difficult to distinguish between these two extremes. A composer who writes music especially for a show obviously has a clear artistic result in mind when he is composing. The result would not be the same with any other music. The pertinent question is rather the following: if you change the music does the storyline have to be fundamentally changed when the work is staged? Only if the answer is yes can the music and the staging be deemed closely enough intertwined for the work to qualify as a dramatico-musical work.
No choice between SUISA and the SSA
These questions and the implications of the answers to them are important: the management of small rights by SUISA is supervised by the State; that is not the case for the grand rights exploited by the SSA and publishers. It follows that the rights management rules are different, notably in the matter of remuneration. Authors and organisers may be tempted to take advantage of these differences: the former to obtain better remuneration, the latter to pay less.
But they have no choice who to deal with: either the work is a small-rights work, in which case SUISA is responsible, or the work is a grand-rights work and the SSA, or the publishers are. (In practice, there are certain rare exceptions, for example in the case of authors who manage their own rights or publishers who assign special mandates to SUISA relating to grand-right works.) If the SSA or a publisher were to intervene in an area which is subject to federal supervision and for which SUISA is responsible, they would be violating Article 70 of the Copyright Act and committing a criminal offence; conversely, if SUISA were to grant a licence without disposing of the necessary rights, the licence would not be valid, and the organisers would not be released from their liability under copyright law.
From the legal point of view, therefore, the respective spheres of competence of the intervening parties must be observed. In cases of uncertainty, SUISA and the SSA cooperate and work together to find solutions to maximise legal certainty.
Register your grand-rights music with SUISA just the same!
SUISA members who compose music for grand-rights works should still register their works with SUISA. In certain situations, SUISA may well be responsible for managing the music rights, including in the following cases:
- the music is used without the storyline, for example in the case of ballet music performed without dancers, or of a dramatico-musical work played in a concert version;
- only extracts of a grand-rights work are used, in particular for the radio or TV: under certain conditions, those extracts may be considered non-theatrical music and thus fall into SUISA’s sphere.
By registering their works with SUISA, the necessary steps will have been taken to ensure that the composer’s rights are managed effectively. If alongside, management of the grand rights has been entrusted to the SSA or if a publisher is responsible for it, it will be for the various stakeholders to do their best to resolve any legal difficulties …