Sections 38 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 38 gives every performer a special right, called the "performer's right", in his performance and fixes how long it lasts. Section 38A lists the acts that only the performer (or someone he authorises) may do, and sets a rule for performances put into a cinematograph film. If you are a singer, actor, musician or a producer who engages them, legal consultation before signing the contract is sensible.
A performer gets a "performer's right" the moment he appears or engages in a performance. It lasts fifty years from the beginning of the calendar year next following the year of the performance. Section 38A makes it an exclusive right to record, reproduce, issue copies, communicate to the public, rent, and broadcast the performance. Once a performer consents in writing to his performance being put into a film, he cannot object to the producer enjoying the performer's right in that film, unless the contract says otherwise, but he keeps a claim to royalties for commercial use.
Section 38: the right and its term
Sub-section (1). "Where any performer appears or engages in any performance, he shall have a special right to be known as the 'performer's right' in relation to such performance." The right arises from the performance itself. Nothing in the section asks for registration.
Sub-section (2). The right "shall subsist until fifty years from the beginning of the calendar year next following the year in which the performance is made." The text records that "fifty years" was substituted for "twenty-five years" by Act 49 of 1999. Sub-sections (3) and (4) of the older section 38 were omitted by the 2012 Amendment Act.
Example. Meera Kulkarni, a vocalist, performs live on 12 March 2026. The year next following is 2027, so the fifty years run from 1 January 2027. The word "performer" and "performance" have their own definitions in section 2; see the definitions article.
Section 38A(1): the exclusive acts
Section 38A says the performer's right is "an exclusive right subject to the provisions of this Act to do or authorise for doing" the following in respect of the performance "or any substantial part thereof", and this is "without prejudice to the rights conferred on authors".
| Clause | Act reserved to the performer |
|---|---|
| (a) | To make a sound recording or a visual recording of the performance, including: |
| (a)(i) | reproducing it in any material form, including storing it in any medium by electronic or other means |
| (a)(ii) | issuing copies of it to the public, not being copies already in circulation |
| (a)(iii) | communicating it to the public |
| (a)(iv) | selling or giving on commercial rental, or offering for sale or commercial rental, any copy of the recording |
| (b) | To broadcast or communicate the performance to the public, except where the performance is already broadcast |
Two points follow from the wording. First, "without prejudice to the rights conferred on authors" means the lyricist or composer keeps separate copyright in the song or music; see copyright for music and songs. Second, the exception in clause (b) means a performer cannot use this clause to stop re-broadcast of a performance that has already been broadcast.
Drafting slip. Section 38A(1) as printed reads "the performer's right which is an exclusive right ... to do or authorise for doing", which has no main verb. Read it as saying that the performer's right is an exclusive right to do or authorise these acts. Check the official text.
Section 38A(2): performance in a cinematograph film
"Once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film he shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer's right in the same film."
Three conditions are visible in the text:
- The consent must be by written agreement.
- It must be consent to incorporation of the performance in a cinematograph film.
- The bar on objection applies only in the absence of any contract to the contrary.
Proviso. "Notwithstanding anything contained in this sub-section, the performer shall be entitled for royalties in case of making of the performances for commercial use." The printed text splits this sentence around a footnote; read together it gives the performer an entitlement to royalties for commercial use of the performances. The section does not state a rate or a method; those are for the contract or other provisions. For tax on royalties, see our income-tax guides, for example royalty income taxation.
Example. Dev Arora, a session guitarist, signs a written agreement for his playing to be included in a film. Later the producer licenses the soundtrack for use in an advertisement. Under the proviso, Dev can claim royalties for that commercial use; he cannot, however, object to the producer's enjoyment of the performer's right in the film.
Who this affects
| Reader | Practical point |
|---|---|
| Performer | Keep written agreements; check whether the contract says anything "to the contrary" on s.38A(2) |
| Producer or label | Get written consent for every performer; plan for royalties on commercial use |
| Event organiser or platform | A recording or live-stream of a performance falls within the acts in s.38A(1) |
For the exceptions to this right (private use, teaching, news reporting) see section 39; for the performer's moral rights, see section 38B.
Need help with performer contracts?
If you are drafting or reviewing an agreement that covers a live or recorded performance, a short legal consultation can check the consent wording and the royalty clause against sections 38 and 38A before you sign.
Key takeaways
- The performer's right arises from the performance itself under section 38(1).
- Term: fifty years from the beginning of the calendar year next following the year of performance.
- Section 38A(1) reserves recording, reproduction, issue of copies, communication to the public, rental and broadcast to the performer.
- Written consent to a film bars objection to the producer's enjoyment of the right, unless the contract says otherwise.
- The performer is entitled to royalties for commercial use of the performances.
- Authors keep their separate rights in the work performed.
Read next
- Section 38B: moral rights of the performer
- Section 39–39A: acts not infringing broadcast or performer's rights
- Performing rights and broadcasting rights under copyright
- Copyright for music and songs: composers, lyricists, producers
Disclaimer: Based on the Copyright Act, 1957 as amended up to 2012, read with the Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Acts of 2023 and 2026, as consulted on 1 October 2026. Forms, fees and procedure are set by the Copyright Rules, 2013 as amended from time to time. This article is general information, not legal advice; check the official text before acting.