Performing arts
Common issues
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A dramatic work is a work that is intended to
be performed. The Copyright Act defines a
dramatic work as a choreographic show, or other
dumb show (mime, for example), or a scenario,
a script for a film, but not the film itself.113 Film is
protected under a separate part of the Act.
has been copied. In deciding this question,
the courts have considered evidence relating
to the creation of the works and the question
of originality of the work, particularly the
‘combination of the principal situations,
singular events and basic characters’.116
The Copyright Act also provides that in some
cases, where the author of a dramatic work
is employed, the author’s employer will own
the copyright in dramatic works. These are
works that are produced under a contract of
employment. It is possible to modify this
arrangement by contract between the employer
and the author, prior to the writing of the work.114
The court has held that: ‘In general there is no
copyright in the central idea or theme of a story
or play, however original it may be; copyright
subsists in the combination of situations,
events and scenes which constitute the
particular working out or expression of the idea
or theme. If these are totally different, the taking
of the idea or theme does not constitute an
infringement of copyright’.117
Authors who are commissioned to write a
work should exercise care when negotiating
an agreement to ensure they retain copyright in
the completed work. If performance or dance
companies enter agreements with a funding
body for development of a work, the company
is advised to check the contract and be certain
about who owns the intellectual property in
the work.
Originality
Copyright protects works that are original.
In the past, it was thought that Indigenous
works reproducing pre-existing themes were
not ‘original’ because they were handed down
through the generations. In the ‘Carpets case’,115
the judge recognised that each artist contributed
his or her own skill, labour and effort to bring
originality to his or her artwork. Hence, the
artworks were protected by copyright. There is
scope for this reasoning to be applied to dances
and songs.
Copyright protects the expression of an idea
but not the underlying idea. Although copyright
does not protect ideas, sometimes the difference
between a mere ‘idea’ and the ‘written
expression’ of the idea is not always clear-cut.
Courts have considered a number of cases
where a party alleges that their dramatic work
How is performance reduced to
material form?
Copyright protects works that are recorded in
some way. The work must be in a permanent
and tangible form.118 This may be in the written
word, sound recordings, video or other film
recording. In the case of choreography, dance
steps may be recorded using notation such
as Labanotation, Benesh, Eshkol-Wachman
Movement Notation or Sutton dance writing.
This is described as being ‘reduced to a
material form’.
Issues can arise in Indigenous traditional
knowledge, dance, designs and stories that
are transferred orally or in an impermanent way.
These are not in material form and are not
automatically protected under copyright laws.
It is important to consider making arrangements
for copyright ownership when oral cultural
material is recorded, because generally, the
maker of the recording is the copyright owner in
the recording. This can be altered by agreement.
A custodian of the cultural material could make
an agreement with the maker of the recording,
which vests copyright in the recording with
the cultural custodian, before any information
is provided.
Performing arts
Common issues
Who owns copyright?
The owner of the copyright in a dramatic work
is generally the author.119
• The author(s) of a play will be the playwright(s).
• The author(s) of a dance will be the person
or people who wrote the dance steps.
• The author(s) of a script for a film will be
the writer(s).
The owner of copyright in a sound recording,120
a cinematographic film121 or a television
broadcast122 is generally the maker.
Copyright exceptions
There are some important exceptions to the
general rules about copyright ownership.
• Where the work is produced under a
contract of employment, copyright will
belong to the employer.123
• Where a work is produced under the
direction or control of the Crown, copyright
may belong to the Crown.124
• Where copyright has been assigned under
a written agreement, the agreement may
specify who owns copyright.
• Where a person or company makes an
agreement and pays for the making of a sound
recording125 or cinematographic film,126 the
person or company that pays for the making
is the copyright owner.
How long does copyright last?
Copyright protects dramatic works for a set
period of time. Copyright in a play, script or
written record of dance steps127 lasts for the
lifetime of the creator and 70 years after their
death.128 After this period has expired, the work
is considered to be in the public domain. Once
a work is in the public domain the law no longer
prevents others from accessing, copying or
using their work.
Copyright owners might need to consider who
they want to control the copyright and who will
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benefit from any royalties during the 70 years
of copyright after their death.
There are slightly different rules for copyright to
sound, film and television recordings. Copyright
in a sound recording129 generally lasts for 70
years from the date of the making of recording.
Copyright in a film130 lasts for 70 years after it
was first published, and copyright in a television
or sound broadcast lasts for 50 years after the
broadcast was made.131
The operation of the Copyright Act creates a
number of problems when it comes to protecting
Indigenous performance. The duration of
copyright does not reflect the Indigenous
people’s right and obligations in relation to their
cultural material. In order to respect Indigenous
heritage it may be necessary to get permission
to use Indigenous material from the traditional
owners even though legally, the dramatic work
is in the public domain.
One example is sound recordings and films of
Indigenous dance made by early anthropologists,
and which are now stored in archives and
libraries. Seventy years after a recording is made
or a film is published, the copyright expires and
the work is in the public domain. It no longer
has any copyright protection. For example,
recordings made before 1937 are now in the
public domain.
It should not be assumed that all rights of
Indigenous people to the recorded performance
have lapsed just because one recording of it
is in the public domain. More recent recordings
of traditional performances by Indigenous
actors or dancers, and recordings of
adaptations of Indigenous performance will be
protected by copyright, and reproduction may
infringe copyright.
Woomera Aboriginal Corporation records
its cultural material so it holds contemporary
versions in material form.132