	Copyright & Contracting Toolbox

	Production Kit

Step 2: Map the copyright

2.1 Pre-existing material

For all pre-existing materials to be used as part of the project, a company must identify the various copyrights protecting those materials and the people or companies who own or have authority to grant clearances of those copyrights. The following table can be used as a checklist for identifying relevant copyright.

Pre-existing Material	Copyrights to be considered
Play, Choreography	Dramatic work owned by playwright/choreographer
Non-dramatic text	Literary works owned by authors
Photographs, designs, pictures, drawings	Artistic works owned by photographer, designer or artist
Sheet music (score) including lyrics	Dramatico-musical works owned by composer or songwriter
Sound recording	Sound Recording owned by maker of the recording
Film, video, animation	One or more cinematograph films owned by the filmmaker
Compilation of material	Compilation (a literary work) owned by the writer of the program
Software	Computer program (a literary work under the Act) owned by the author of the compilation


		Copyright in Arena Theatre pre-existing material :
		Case Study: Arena

Object	Rightsholder	Type of Copyright
Lighting Design	Lighting Designer	Artistic Work
Set Design	Company	Artistic Work
Costume design	Company	Artistic Work
Animation	Animators	Cinematograph film
Musical Composition	Composer	Musical Work
Musical recording	Company	Sound recording
Choreography	Choreographer	Dramatic Work
Theatrical Script	Scriptwriters	Dramatic Work


		Copyrights in NYID pre-existing material : NYID identified a range of copyright owners in the pre-existing material used in the documentary. This following table provides details of copyright ownership for some of the material to be used by NYID.
		Case Study: NYID

Item	Rightsholder	Rights Cleared
9-minute segment on NYID from ABCTV's "Express"arts program	ABC Television	Yes
News footage of Greg Ulfan	Unknown local TV network in Perth	No
Accompanying music to newsclip 'Baby make Your Move'	BMG and songwriters	Yes
45 second showreel of Mark Hennessey as stunt man incorporating various film clips	ABC TV -Police Rescue Nadia Tass and David Parker -The Big Steal Crawford's - Henderson Kids Grundy's -Logies	Yes
Soundtrack to showreel of Mark Hennessey - song 'Simply the Best'	EMI Tina Turner	Clearance refused by the rightsholder

Having identified the pre-existing copyrights relevant to the project, the current ownership of those rights must be ascertained. In various circumstances, copyright will be owned, not by the original creator, but by another person or entity.

For example:

copyright in works created by employees as part of their employment will automatically be owned by their employers;
copyright in works made by or under the direction or control of the government (Commonwealth or State) will usually be owned by the government;
the original creator may have entered into an agreement under which all or part of the copyright is assigned to another person (eg book and music publishers may take an assignment of copyright from the authors and composers whose works they publish); or
if the original creator is no longer alive, copyright ownership is likely to have been transferred by will to his or her heirs.

Depending on a number of factors, including the origin and age of a work and the number of transactions affecting its ownership, tracing and locating the current owner of copyright can be a complicated, time consuming and costly task. If the cost of identifying and locating the owner of a particular work is expected to be high, it may be necessary to consider using an alternative work. Complications such as this are best identified at the early stages of a project, when the dependence on a particular work is not so great.

If particular rightsholders are difficult to locate, consider the following options:

look them up in a telephone book or relevant industry directories;
ask relevant associations, unions, collecting societies and similar bodies for current contact details; or
if the rightsholder is an Australian company, conduct a search of the Australian Securities and Investments Commission (ASIC) register.

This issue was of particular significance to NYID who were required to identify a number of copyrights in pre-existing work. The search and clearance of several pieces of material was abandoned because of the difficulty in obtaining appropriate clearances.


		NYID search for copyright owners : NYID searched extensively yet unsuccessfully for the copyright owner of a crucial piece of film in the documentary. Rather than abandon the use of the work the company placed a "notice of good faith" in the end titles claiming the company had made all reasonable attempts to find the owners of the work and invited the owners to come forward to negotiate a settlement. The search for the rights holder was carefully documented and money from the budget was held in an account should the copyright owner/s make a claim against the company in the future. Technically it is still an infringement of copyright to use material without consent. As such this approach is not recommended. However this was a risk NYID was prepared to manage. Not obtaining all the clearances could also complicate the company's efforts to commercialise the product. The company is often required to warrant that all the clearances have been obtained when selling or licensing its product. NYID will not be able to give such a warranty for this documentary.
		Case Study: NYID

There is always a risk that the person claiming to own certain rights does not actually own those rights. Although this risk can be addressed by requiring the person to give a warranty of copyright ownership and an indemnity against loss suffered by the company if the true owner makes a claim, this will provide the company with little protection if the person has no assets to back up the indemnity. If in doubt, it is prudent to request documentary evidence of copyright ownership.

2.2 New material

For all new materials to be created and used as part of the Project, identify the various copyrights that will come into existence and the people or companies who will own those copyrights on creation.

New material	Copyrights to be considered
Play, Choreography	Dramatic work owned by playwright, choreographer
Non-dramatic text	Literary works owned by authors
Photographs, designs, pictures, drawings	Artistic works owned by photographer, designer or artist
Sheet music (score)	Musical or dramatico-musical work (if lyrics too) owned by composer or song writer
Sound recording	Sound recording owned by maker of the recording
Film, video or animation	One or more cinematograph films owned by the film maker
Software	Computer program (a literary work under the Act) owned by writer of the program
Compilation of materials	Compilation program(a literary work under the Act) owned by the author of the compilation.


		Copyright existing in Arena Theatre new material : Arena Theatre had to consider copyrights resulting from the creation of the program of products.
		Case Study: Arena Theatre

Object	Rightsholder	Type of Copyright
Film	Company as Producer	Cinematograph film
Audio CD	Company as Producer	Sound Recording
Documentary Script	Documentary Scriptwriters	Literary/Dramatic Work
Graphic Design	CD ROM designers	Artistic Work


		Collaborative theatre practices and mapping the copyright : Copyright on collaborative material can be jointly and equally owned by all participants or divided according to exact contribution. This can be extremely difficult to determine, particularly in collaborative scripts. A final scene may be born from a performer's ad lib interpretation, script writer's words, and director's original story line. Companies such as Arena are accustomed to this practice and contract the collaborators as joint and equal owners of the material. This helps to prevent disputes at the conclusion of the production over minor/major contributor.

Any work (eg photographs, set designs, scripts and choreography) created by employees of the company on company time as part of the employment will automatically be owned by the company, not the employees. However, if independent contractors are engaged to create new materials (eg film, animation or software), copyright may be owned by the contractor unless and until it has been assigned to the company in writing. It is possible for a creator to assign to another person copyright in a work prior to the creation of that work. Such assignments of "future copyright' are recognised under Australian copyright law as having effect from the moment the copyright comes into existence.