Management practices for artists and companies

Copyright Management

Determining management policy is one of the most important steps in managing copyright in the performing arts. Ideology or financial circumstances have a direct impact on copyright negotiations and provide the framework for all negotiations between artists and management.

In the following section questions have been posed to assist companies and individuals to manage copyright within their own situation.

What is your process of making work?

More and more performing arts companies are working collaboratively, having a team of artists who engineer production collectively. This fosters a sense of joint ownership over the work and also blurs boundaries between specific disciplines. It demands a definitive policy on joint ownership that can be articulated to newly employed artists.

Who owns the copyright?

Employees versus independent contractors: all copyright produced by an employee remains the property of the employer unless otherwise agreed. All copyright produced by an independent contractor is owned by the artist unless otherwise agreed. Companies and artists need to ensure that this is clarified in a verbal or contractual agreement.

Employees usually receive wages, holiday pay, superannuation, sick leave entitlements and holiday pay. Independent contractors are usually paid a fee. Copyright over the work of an independent contactor must be negotiated between the artist and the company.

How do you define areas of responsibility?

All employment contracts need to clearly specify areas of responsibility. This is particularly important for individuals who have dual roles within an organisation or production. In some circumstances the artistic director may be employed to simply direct the majority of performances at the company however, the artistic director (AD) may also be party to script development, compositions, design or performance. It is the employer's decision (in consultation with the employee) to determine whether these aspects fall within the definition of the original contract. If they do not, the employer needs to determine if copyright ownership for additional work rests with the AD (the artist). This may require the AD's role in a work being reviewed on a case-by-case basis.

A

		An AD is employed exclusively to administer the company and direct the majority of performances. In an upcoming production she is co-writing the script. As you would review all artists' relationship to intellectual property at the contracting stage, you would also include the AD as an artist. A separate letter of agreement would be issued acknowledging that the AD is co-author of the script.

B

		When an employment contract stipulates that all "work" produced by the AD is owned by the company: an artistic director writes and directs a theatrical script that is sold by the company to free-to-air television for adaptation into a television series. In the absence of a detailed contract that says whether "work" included direction and script-writing, then the AD may lose any entitlement to revenue from the sale.

C

		A freelance artist is employed to design a company logo for letterheads and business cards. The artist is paid a wage. The company uses the image extensively in all media, including two other productions. The artist was paid a wage and is therefore classified as an employee, thus the company was entitled to use his work as they saw fit. If the artist's role had been defined as independent contractor then clear schedules would be drawn limiting the use of the work to letterhead and business cards.

How do you establish allowable uses of a work?

Companies want and need to use commissioned work for a reasonable period of time to extend the work past its original season, however the needs of an organisation have to be balanced with the needs of the artist. Unless the artist is an employee of the company, the company must acknowledge the maker as the original copyright owner of the work. In contract, commissioning agents can recognise the artist as the copyright owner and either:

How do you identify the various copyrights within a work?

Mapping copyright is a way of simply identifying the copyrights that exist in a work. Once this is complete you can also chart the terms and conditions necessary to use the work. These questions and answers can be tabled in order to give a clear picture of intellectual property rights in a company production or multimedia product. See Case Studies.

Mapping can also assist management to chart when licensing agreements cease and to give a clear indication of whose permission to seek when remounting a work or wanting to use the work in an unforeseen medium. It can also add cohesion to the intellectual property rights of the production.

Do you need to include policy statements?

In future intellectual policy statements may be attached to all contracts or applications as an addendum. Simple policy statements can be useful for tender specifications to ensure that artists are aware of their rights under commission from a company or, in the case of individual artists, to state their preferred position if they are selected. It is not necessary to be this prescriptive and you may choose to review intellectual property policy with the production of each new work.

A

		Policy statement for new work: Company X recognises that the intellectual property of all work commissioned by the company for theatrical productions is owned by the commissioned artist. In all circumstances the company will seek an exclusive licensing agreement with the artist for use of the work for approximately five years.   Work is defined as set design, costume, choreography, script, filmmaking, and lighting design. All intellectual rights for promotional work commissioned by the company will be assigned to the company in perpetuity. This includes but is not limited to photographs, digital images and graphic design.

B

		Policy statement for tender: Artist Y will seek a non-exclusive five-year licence for the use of his work in all theatrical seasons. The artist seeks to use the work exclusively for personal promotion of his work in public exhibitions and portfolio. The artist agrees that he will be prohibited from selling the work to another theatrical company within the term of the contract.

What parameters are set down for royalty payments?

Royalties are separate to copyright. They are remunerative recognition of the ongoing use of the work. Industry practice varies in the percentage of royalties paid to artist and from what point royalties begin, for example, 18 months after the original season.

Royalties are often used as negotiation points between parties. An artist may agree to receive a lower fee in favour of a high royalty, or inversely a company may pay artist a large fee with no additional royalties. While there are industry standards and practices, again it should be noted that it often comes down to company policy and specific circumstances. Organisations should attempt to determine parameters for royalty payments in their organisation. Several companies in the pilot project looked to their royalty policy to assist in determining back-end payments to artists involved in the products.

How can you protect work from misuse?

Original work does not need to be registered to receive copyright protection although it is always prudent to place the © symbol with the name of the copyright owner on any work produced and owned by the company or artist, eg business plans, CDs, scripts etc. Another source of protection for companies is archival video of performance recordings. This can be used to demonstrate the entire work in the event of a copyright dispute.

Artists

Artists cannot be exploited for company purposes without financial remuneration or individual benefit. While companies need to ensure maximum exposure for their investment, they also have an obligation to ensure artists' work is not unduly exploited, misrepresented, or used for purposes they were not originally commissioned for. Contracts and negotiations are imperative in providing protection for artists' work. Schedules limiting the use of performances or recordings can protect the work from misuse. An example of this is limiting the use of a live recording to presentation at an arts market or funding submissions. This prohibits the company from selling the footage for other purposes without an additional agreement.

Companies

Copyright management impacts on the ability of companies to remount productions and protect their work. On several occasions lax copyright agreements have resulted in companies producing commissioned scripts, only to watch the writer re-sell the rights to another local company soon after the original season was mounted. This could be prevented by acquiring an exclusive licence for the script or obtaining a non-exclusive license that only allows companies outside the territory to perform the script. Working through the copyright checklist will highlight whether your current company policy protects work from misuse.

How do you promote work?

Advances in technologies are opening new avenues for promotion. Often current contracts with artists do not allow for work to be used in unforeseen media, or are still confined to traditional promotional avenues such as newspapers and flyers. If the rights for promotional material are not assigned to the company, or not owned automatically then companies should ensure they are empowered to use the work for promotion on their company Website etc. Employers must ensure however that artists' work is not exploited in a commercial domain where artists could expect to receive additional remuneration.

What is your current financial position?

The decision to embrace new technologies is greatly determined by the financial standing of a company or collective. Some groups are disadvantaged because they cannot implement a long-term financial strategy and they cannot call upon capital reserves to fund once off asset turnover. All groups however can determine whether it is financially beneficial to utilise Web advertising over newspapers, or whether accessing digital media would benefit the company. In determining this organisations may be better prepared to take up opportunities when they arise.

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