Performing arts
Common issues
The Garma website advises people wanting
to take photographs of Yolgnu that they must
obtain the permission of a senior Yolgnu
elder first. Also, anyone who wishes to take
photographs or make any other kind of
recording at the Garma Festival must sign
an agreement with the Yothu Yindi
Foundation (YYF).
The agreement sets out the conditions for
recording. These conditions acknowledge
the rights of the traditional owners over
anything done at the festival including all
their knowledge which is embodied in
everything done at the festival. The person
recording must agree not to use the recording
for any purpose that might be detrimental
to the traditional owners or inconsistent with
their law and custom. The person making
the recording must also agree not to try
to get permission from individual traditional
owners without the consent of the YYF.
The person must agree to only use the
recording for personal use. No use can be
made of the recording without the prior
permission of the YYF. The YYF must be
given a high quality copy of the recording.
The copyright in the recording will be held
by the YYF for the benefit of the traditional
owners. Anyone making a recording must
follow the directions of the YYF staff.
The YYF can use the recording for any
purpose, as long as it credits the maker
of the recording.106
Case study: Mornington
Island Dancers
In contracts with festivals we are often asked
to assign limited recording and broadcast
rights to our performances for promotion
and other purposes closely related to the
festival event. This has not been abused to
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our knowledge, but seems not to recognise
the special care and attention warranted by
traditional owners. Often contracts need
additional qualifications in this area so that
control is not lost on traditional dance and
song items.107 Issues of authenticity and
integrity also arise in festival performances.
We had problems negotiating the numbers
of people to invite, because the dances
and songs needed a particular amount of
people for the presentation to maintain
its cultural integrity. The festival budget
couldn’t cater for the cultural needs of the
groups, therefore the artistic and cultural
integrity of the overall event was
compromised on a daily basis.108
As well as encouraging respect for
Indigenous cultural protocols, teaching
of Indigenous performance, and the
development of Indigenous contemporary
dance, some people are working on
assisting Indigenous people to record their
performances.
Case study: The National Recording
Project for Indigenous Performance
in Australia
The National Recording Project for
Indigenous Performance in Australia is
using digital technology to record
Indigenous performance. The project was
conceived in 2002 by elders and academics
at the Garma Festival.
The aim of the project is to systematically
record and document the ‘performance
traditions of Indigenous Australia. Through
this process, it will assist in the development
of local knowledge centres and other digital
archives as primary repositories for locally
recorded and documented materials, and
a secure national repository in which copies
Performing arts
Common issues
of all data generated can be archived.
Rather than being driven by conventional
academic agendas, all localised recording
and documentation operations will be
directed by local elders and driven by local
priorities. Primary responsibility for the
management of archived data will reside in
local knowledge centres and other digital
archives with assistance from project
partner organisations’.109
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Copyright is a form of legal protection that
provides the copyright owner with the rights
to exclusively use and authorise others to use
their copyright work and other subject matter.
Copyright owners have the right to prevent
others from using the work without their
permission. The law refers to the copyright
owner’s right to control the use of their work
as the right to capitalise on his or her work.
The Copyright Act provides that the author of
a work is the copyright owner.111
Management and agency agreements
Good management and a good agent are
great assets for dancers, performers, writers,
dramaturges and directors. They will often
be required to sign an agreement with a
manager or agent. It is important to review the
agreement closely before signing. Legal advice
should also be considered before signing.
The author of a dramatic work may be the writer,
or authorship may be shared between the
writer(s), cultural advisors and the custodians
of any Indigenous material used in the work.112
Performers have a different set of rights with
only limited copyright ownership in certain
circumstances: see the copyright and
performers’ rights section of this guide.
Creative Commons licensing
Creative Commons is a concept that
encourages copyright owners to allow people
to use their copyright material without seeking
prior permission or paying for it. A copyright
owner can make his or her songs available
on the internet through open content licensing
protocols and thereby promote better
identification, negotiation and reutilisation of
content for the purposes of creativity and
innovation. A number of Australian arts
advocacy organisations, including APRA, have
raised serious concerns about the licences,
particularly that they may not effectively limit
commercial or derivative uses.110
The Copyright Act is the main law in Australia
that governs the use, production and
dissemination of literary, artistic, dramatic
and musical works. There are no special laws
for the protection of Indigenous heritage.
Copyright
What is copyright?
It is important for people working in the
performing arts to develop an understanding
of copyright so they can negotiate their rights.
It is also important to keep track of changes
to the laws that might affect those rights.
This section provides some general copyright
information and is intended as a guide only. For
specific legal advice we recommend consulting
a lawyer with specialist knowledge in copyright.
How does copyright
protect performance?
Copyright is a form of legal protection that aims
to provide copyright owners with the right to
exploit or use the work, and to prevent others
from exploiting it without the author’s permission.
In the case of performing arts, copyright
protection exists in the dramatic work. It may
also exist in any literary work such as the text
of the play, any musical work that is part of the
performance, a recording of the work and any
adaptation of the work.