It seems that all performances are protected (in the UK at least) by the Performers Protection Act. I found this when checking on the web, and I think it is of relevance here. The snag would seem to be that a performer COULD assign away his/her rights. It is clear that the rights would need to be assigned in order for a commercial release - unless that release was made by the performer. If no assignment is made then presumably the person exploiting the performance would be infringing.

Briefing Note – An Overview of Performer's Rights

Performance rights are of world-wide application and as with literary, musical and dramatic works. There is no registration requirement in the UK for protection and are independent of copyright vesting by virtue of the Copyright, Designs and Patents Act 1988 UK. Each participant is entitled to the performance right.
First Owner of Copyright

The first owner of the performance right is the performer. The rights granted by the Act are the reproduction right, distribution right, rental and lending right and the making available right: s191A. These are proprietary rights that may be sold, licensed or otherwise dealt with as personal property. Agreements to do so must be in writing.

Duration

The effect of the Term Directive has been that the Duration of a performer's right last from 50 years from the date of the recording. If the recording is first published or shown in public within that initial term, protection continues under Part II for an additional 50 years.

The Term Directive also introduced the principle of reciprocal treatment for non-EEA nationals, whereby a legal person who does not qualify under the UK Act is only entitled to the duration of protection in their own country. Citizens and countries that are part of the EEA are treated as through they are UK citizens of the UK.

Rental Right

Where a film producer and an actor enter into a contract for the production of a film, the rental right is automatically transferred to the producer unless it is otherwise dealt with in the contract for the performance, and a right to equitable remuneration vests in the actor.

Performers are granted performance rights under Part II of the Copyright Designs and Patents Act. The performance right protects the visual components of a performance as well as the aural aspects of a performance.

Definition of Performance

The preconditions to protection under the Act are that the performance falls within the statutory meaning of a performance under Part II, and given by performers within the statutory definition.

Performances are defined in section 180(2) of the Copyright, Designs and Patents Act as a live performance of:
a dramatic performance
a musical performance
a reading or recitation of a literary work, or
a performance of a variety act or similar performances.
Readings and Recitals

Of these terms, only a literary work in sub-section (d) is defined elsewhere in the Act.

Literary works take their definition from Part I of Act, thus a literary work must fall within the definition to as a precondition to performance rights accruing under section 180(2): section 211.
The performance right will not accrue therefore unless the work that is recited is a literary work within the meaning of Part I of the Copyright, Designs and Patents Act UK . It is arguable that the work need not be in a material form prior to the recital in order for a recital or reading to be performed and granted the benefits of protection.

Dramatic performances referred to in s 191A include performances that incorporate movement and/or speech that conveys a dramatic meaning. As a point of reference, a dramatic work defined in Part I explicitly includes dance and mime, however the meaning is broader than this. Dramatic works include any work of action that may be performed before an audience whether or not the words are spoken or music is played.

A musical performance does not rely on the definition of a musical work under Part I of the Act. This means that improvisations may be performed by the performance right as well as forms of music that some may consider not to be music, such as music which is avant garde in character.

Improvised Performances

There is no general requirement that a work has been reduced in a material form as a pre-requisite to protection by the performance right, and it is arguable that improvised works also fall within the definition of a live performance.

A live performance may be a rehearsal of a stage play, a performance for a film by an actor by an individual, rather than a company.
Payments to Performers - Equitable Remuneration

The performance right also entitles performance to equitable remuneration when their performance is played in public or otherwise communicated to the public. This right may not be assigned to a third party other than a collecting society, who then takes the responsibility of collecting the proceeds of the right on their behalf. Parties may not contract out of the entitlement for equitable remuneration, and to the extent they attempt to do so, the contract will be void.

The Copyright Tribunal was created to deal with disputes between performers and persons contracting to use their rights. The Tribunal may revisit and reassess agreements for remuneration between the performer and a person liable to pay equitable remuneration.
Infringement of Performance Rights – The Reproduction Right
The right to reproduce performances ('the Reproduction Right') is infringed when any person records, broadcasts, or copies a recording or a broadcast of a whole or a substantial part of a qualifying live performance: s 182A(1).

Infringement may take place by transient copying, copying indirectly without the consent or licence of the performer: s 182(1A), (2) & (3).

The reproduction right is also infringed by exposing such copies to the public for sale or otherwise, rents or lends such copies to the public. The definitions of rental and lending take their meanings from what they are commonly understood to mean. Provision for making recordings of performances available to the public has been specifically outlawed.

It is also an infringement of copyright to import into the UK infringing articles into the UK for a commercial purpose without the consent of the performer, or to possess, sell, hire, lend or expose for sale.

Service providers who allow their services to be used with actual knowledge of the infringement by a third party is also liable for the infringement of the performer's right. In making out a defence, the court will have regard for any notices provided pursuant to the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) and the particulars provided including the name and address of the sender and the details of the infringement alleged that is taking place.