[PAML] Case study: Arena Theatre Company

While Arena is accustomed to identifying intellectual property rights for its multi-disciplined collaborative performances, this task became more complex when the process was extended to include intellectual property rights for the "offspring" products developed under the PAML Pilot Project. As a collaborative company Arena offered an equitable royalty split to all artists from the commercialisation of these products. Artists were paid up-front for theatrical work and received additional back-end royalty payments for the use of their work in the derived products. Arena included moral rights in the performers' and artists' agreements to explore how integrity and attribution issues could be applied within the organisation. Artists viewed the final products to ensure artists' rights of integrity were not infringed, and that all participating artists were credited in the products themselves.

Management overview

Arena's process of devising new work is reflected in the company's intellectual property policy. When animation has been used as script, for example, Arena has identified the animators and traditional scriptwriters as the joint authors of "script" and divided royalties accordingly. Contracted artists are made aware that their work is open for interpretation and alteration by a number of members of the creative team. Similarly, when a number of script writers are employed they are informed, prior to engagement, that the script will be jointly and equally owned by a number of stipulated parties, including those who derived the original idea.

The Artistic Director (AD) retains copyright on all aspects of her participation other than direction (e.g., musical composition), but licenses it back to the company for a period of five years. The company has sole ownership over production direction however the AD must be recognised at all times as the original director of a production. The General Manager assigns the company all intellectual property involved in core work, for perpetuity. For the purposes of the PAML Pilot Project, Arena determined that any work relating to broadcast material could be deemed outside the terms of the general contract and that therefore the executive officers were entitled to royalties and intellectual property rights based on their specific involvement. Artists working with Arena are generally employed as independent contractors.

Arena, like Chunky Move, produced the program of products in conjunction with the live theatrical performance and consequently required two separate agreements: one for the live performance and the other, to record and to use source footage.

Intellectual property

Artists involved in the Arena project retained intellectual property over their component of the work, in accordance with company policy. The artists then licensed the use of their work; animation, script, performance, lighting etc, to the company for periods of 18 months up to five years. In some circumstances, particularly with set construction and promotional materials the rights were assigned to the company. Although Arena had the right to claim copyright ownership over the animation, the company chose to offer copyright to the animators so as to create parity between the creative contributors. The animators then licensed their work to the company.

Multiple use of a live theatrical season is prohibited under awards and legislation without additional remuneration. As a result the products created from the live performance needed to be identified under a separate contract. Every incarnation of the footage had to be treated separately.

In order to make use of source footage from performance, Arena first had to determine who owned copyright from the theatrical season.

In addition to the work of the Producer and Director, for which the company had already obtained copyright, eight other stakeholder areas were identified:

In order to use the theatrical season for broadcast purposes, the contributions of the General Manager, Artistic Director as Producers and Filmmaker were also included, resulting in the following stakeholder model on the products:

It is important to note that since the cinema advertisement, Website and audio CD did not include aspects of live performance, the stakeholder rights were limited to the parties involved, namely animators and composers.

Obtaining the rights

Arena was assigned the rights for all graphic material, costume, and the cinema advertisement.

As the producer Arena Theatre had automatic copyright ownership over the sound recording of the audio CD (master rights) however, publishing rights remained with the composer and lyricist. Arena limits its contracts with the composer for audio CDs to a run of 500 and prohibits distribution deals other than through Arena Theatre Company points of sale.

All other components were licensed exclusively to the company for a period between two and five years.

The only use of third party material were music samples bought through Australian soundbanks. These are free of copyright.

Royalty division

Arena, like Chunky Move, was not able, at the beginning of the project, to produce a shot table or design for the final products because it did not know what the finalised theatrical show would look like. Subsequently, participants were asked to forego upfront royalties for the CD ROM and documentary in favour of back-end payments. Arena proposed an equitable royalty split between all key stakeholders, thereby overcoming disputes over minor and major contributions, or screen time versus behind-the-scenes contributions.

Unions and performers raised concerns over whether these payments would be based on net income or gross revenue. Arena proposed that percentage splits should be based on gross revenue so as to avoid mistrust over "unforeseen company administrative fees". The company proposed that one third of all revenue be returned to the company to generate new work for artists and to cover marketing and administration relating to royalties and products. The remaining two thirds would be divided equally among key participants with each receiving 3.5 per cent. This split would cover the use of performances in the CD ROM and documentary.

Artists were offered a fixed fee for the cinema advertisement, audio CD, and Web since these were created largely for promotional purposes artists were offered a fixed fee. Artists involved in the products for commercialisation (i.e., the CD ROM and documentary), were paid for their contribution to the theatrical season and offered a percentage split of revenue as a back end payment for the use of their work in the derivative products.

Arena revenue distribution by artist category

Negotiations

Arena originally offered a broad contract that would enable the footage to be used in both specified and unspecified media. Both performers and the Media Entertainers and Arts Alliance (MEAA) found this unacceptable and placed strict limitations on the use of the products for commercial or promotional purposes. The MEAA was particularly concerned with the representation of performers and the capacity for the company to use images improperly or to distort them electronically.

The most significant issue however was that Arena could not promise the products would make money and therefore the participants were offsetting a loading in favour of a royalty split in a risk venture. Arena maintained that the cost of upfront loadings for producing videos and CD ROMs was prohibitive to small/medium sized companies under the current award. Arena made the point that the company possessed expertise and equipment to make the products, and that the performers were not being asked to perform any additional work outside of the theatrical season.

The performers agreed to a more restrictive contract stipulating the media the products would be used in, and limiting the inclusion of third party material. Arena included the ability for the company to submit footage of its performance to a presenting festival for inclusion in television commercials etc. All participants were paid a promotional loading of $100 for use of the products for specified promotional purposes such as arts markets displays, servicing funding partners or sponsors, and for procuring future seasons of the play PANACEA. Promotional and commercial uses of the product were limited to five years.

Moral rights exploration

Arena chose to trial the application of moral rights, since it is likely that legislation protecting moral rights will soon be enacted in Australia. Under previous contracts Arena's policy has been to credit all artists whenever the director is credited. Under the PAML Pilot Project contracts, rights of integrity and attribution replaced this previous clause.

Arena was required to screen the final products to ensure artists' rights of integrity were not infringed. Artists were shown rushes of the filming to allay fears concerning the representation of performers and minimise the risk of objection. Responsibility for ensuring all stakeholders viewed the products rested with the company. Participants who could not attend screenings were sent video. This became extremely difficult given that several performers were on international tours at the completion of the post-production.