Frequently Asked Questions
1. Does an employer own copyright over material produced by an employee?
Yes. All work produced by employees as part of their employment duties is owned by the employer, unless otherwise agreed.
case studies: management overviews
5 step contracting guidelines
management practices: defining areas of responsibility
2. If I commission a set design do I own the copyright?
If the set designer is contracted as an employee, then yes. If the designer has been hired as an independent contractor (usually fee based) then copyright is retained by the maker of the work, in this case the designer, unless there is a written agreement to assign the copyright.
3. Can a company sell a script to free to air television?
This will depend on the original terms of the contract with the scriptwriter. For example, if the original contract specified that the script was licensed to the company for theatrical seasons only then the company could not sell or license the script to free to air television. However, if the contract stated that the script would be used for both theatrical seasons and a television adaptation, then the company should be able to negotiate a licence of those rights to the free to air networks.
Management practices: use of work
4. Can you use materials produced for a particular production for other company promotions on the Web?
If organisations own copyright over the materials (eg photographs) then they can generally use those materials as they wish. However, if an organisation does not own all copyright in the material and its licence limits the use of that material in some way (eg use for newspaper advertising only) then use on the Web would require a separate agreement to be reached. Similarly, if a recording of a performance was to be used for commercial broadcast advertising and those rights had not previously been authorised, then performers would be entitled to seek additional remuneration as a condition of giving their consent.
5. Who owns copyright in a collaborative work?
In collaborative productions, copyright can be jointly and equally owned by all participants or divided in a manner agreed by all joint creators (eg by nominating specific individuals as owners of specific works).
Arena: management overview
6. Is an "original idea" protected by copyright?
Generally not. Copyright does not protect 'ideas', but it may protect (as original 'works') the particular form in which an idea is expressed. In order for a 'work' to be protected under copyright law, it must be fixed in some material form. A script 'idea' which has never been written down would not be protected by copyright. However, once that idea is expressed in a particular original way in writing (or on some other media) and in sufficient detail, it is likely that copyright protection will apply. It is common in script or design development to keep a written record to ensure copyright protection.
7. Can I use under 30 seconds of film without permission from the makers?
Generally not. A 30 second film clip will often constitute a 'substantial' and copyright-protected part of film. All rights in the required footage must be cleared before it can be used, including rights in the film, composition and script.
5 step contracting guidelines: mapping; third party material in a work
8. Do I have to credit everyone involved in the project?
If moral rights are introduced under Australian law then authors, artists, performers and other copyright creators will be granted certain moral rights, including a right of attribution. In many circumstances, this will allow these creators to demand that they be credited when their work or performance is reproduced in a recording. In audiovisual recordings, participants are usually credited in the end titles.
5 step contracting guidelines: moral rights; case studies: moral rights
9. If a company records a performance on video, do the performers have to see it?
It depends. Until moral rights are introduced, performers have no statutory right to demand that they review and approve an authorised recording of their performance. However, performers may seek such a right under their contracts as a condition of authorising the recording. In these circumstances, performers would be able to review the final product before it is released to ensure the integrity of their performance. In any event, as a matter of courtesy, all participants in a project should be entitled to view the recording.
Moral rights; Case Studies: moral rights
10. If a company's licence to use a commissioned set finishes, can the set be used again?
No. As the licence has ceased, you have no right to use it unless you renegotiate an extension of the licence with the set designer.
11. If I use a commercial audio CD in a small show that hardly anyone is going to see does it really matter that I don't have a clearance?
Yes. For many rightsholders, copyright is a serious matter. Unauthorised use of copyright raises issues of principle and remuneration. The principle is that people should not be able to use the work of another person without their knowledge and permission. The composer may have political opinions that are strongly opposed to those of a particular production and may not want his or her work associated with that production. The question that should always be asked is "Would I want my Work to be used without my permission?" The answer is usually "No". For small productions it may be that the composer will waive any payment. Nonetheless, permission should always be sought.
Copyright explained introduction
12. Is there an organisation where I have to register my work to receive copyright protection?
No. There is no organisation that bestows copyright protection. It is an automatic right without any formal registration requirements. Nonetheless, the copyright symbol ©, with the owner's name, can be printed on any material to highlight that it has copyright protection, and who holds the rights.
Management practices: how to protect work from misuse
13. How likely is it that moral rights will become law?
Very likely. For several years the Government has been formulating its policy on moral rights and is expected to pass laws on the subject in the near future. Accordingly, companies should give some thought to how moral rights may be managed in their organisation (see case studies).
moral rights; copyright explained
14. Is there a copyright agency that lists all the copyrights that exist in films?
No. Although Screenrights may be able to assist, there is no single central agency that practitioners can contact to negotiate use of all thirdparty material such as film. It is usually possible to track copyright owners through the credits during the end titles.
copyright explained collection agencies; clearing rights
15. If an artist assigns a Work to someone else, can that artist re-use the work?
No. If an artist assigns his or her rights then he or she is no longer the copyright owner. Permission would need to be sought from the new copyright owner to re-use the Work in any manner protected by copyright.
Copyright explained, 5 step contracting guide; assignment; management practices: use of work
16. Can a company film my performance and then sell it to Nike for an advertisement?
If the company is the copyright owner of the material then it can legally sell or license the footage. However, if the agreement under which you consented to being filmed placed restrictions on that type of promotional use, the company could not do so without your further consent and/or additional payments being made (depending on your original agreement with the company).
17. Where can I get information on intellectual property rights?
There are a number of organisations that can assist individuals or companies with copyright enquiries, such as Arts Law, the Copyright Council, State and Federal Funding bodies, the Department of Communication, Information Technology and the Arts, the MEAA, and numerous legal firms and legal practitioners.
18. As a performer can I prevent a poor quality recording of my performance?
Currently performers have the right to restrain unauthorised recordings of their performances. If performers are concerned that the quality of a recording will jeopardise their career, they can refuse to authorise the recording. Alternatively, they could authorise the recording on condition that it meets certain quality criteria.
Moral rights; Case Studies: Moral rights; Glossary: Moral rights
19. Can an employer use my design for two different shows?
Again, this will largely depend on the contract with the designer. If the company has been granted a licence to use the design for one specified show then it does not have the artist's permission to use it for another production. However, if the rights to the design have been assigned to the company (or licensed without restrictions) then it can use the design for any production.
Management practices: how to protect work
20. If I am an employee of a company and I create a design that makes millions of dollars am I entitled to a share?
Generally not. While it may seem unfair, the company, as employer, owns all copyright over the material produced as part of your work duties while you are an employee. Thus, the company is entitled to all revenue from commercialising what it owns.
Management practices: independent employee and contractor, how to protect work from misuse; Copyright explained: definition; contracting tips; management practices: defining areas of responsibility