Performing arts
Common issues
What rights do copyright owners have?
Copyright owners have the exclusive right
to authorise use and copying of their work.
The copyright owner also has the exclusive
right to earn money from the use, reproduction
and publication of the work. The copyright
owner of a dramatic work, such as the playwright,
can do all or any of the following acts:
• reproduce the work in a material form
• publish the work
• perform the work in public
• communicate the work to the public
(this includes broadcasting and the internet)
• make an adaptation of the work133
• m
ake an adaptation of the original dramatic
work and then reproduce, publish, perform
in public, or communicate to the public
this adaptation.134
An important exercise of these rights is the
right of copyright owners to negotiate a licence
agreement allowing others to use the work
in one or more of these ways. For instance,
a theatre company may negotiate a licence
with a producer for the exclusive right to
perform a dramatic work for a number of years.
Performers have a more limited set of rights
as detailed below.
Performers’ rights
Performers’ rights are different to rights
accorded to copyright owners. Performers’
rights are, in general, more limited than a
playwright or choreographer’s rights. Each
performer’s permission must be obtained
before recording a performance (either by
sound or film) and communicating a
performance to the public (by broadcast or
transmission over the internet). Performers
have other rights in relation to the use of
recordings of their performance, including
the right to say whether the recording can
be used as a soundtrack for a film.
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Performances include live performances of:
• a dramatic work135
• a musical work136
• the reading, recitation or delivery
of a literary work137
• a dance
• a circus act or a variety act or any similar
presentation or show
• an expression of folklore.138
Performers’ rights will often be set out in
employment contracts. Industry organisations
such as MEAA should be consulted about
industry standards and for advice on Australian
workplace agreements.
The following activities are not regarded
as performances by the Copyright Act.139
• performances of works for educational
purposes; this means performance
by a teacher or student where no box
office fee is charged140
• reading, reciting or delivering the news
• performing a sporting activity
• participation as part of an audience.
Copyright and performers’ rights
Until January 2005, there was no copyright
in a performance, but performers could grant
or refuse permission to record and broadcast
their performances. This was generally done by
asking performers to sign a release form which
allowed for certain uses of the performance
such as making the recording, broadcasting
it or putting it online. Once this release was
signed, performers received no further rights in
relation to the work or the recording of it unless
they were entitled to residuals or royalties as a
result of their contract.
Since January 2005, performers have new
rights in audio recordings.141 When a sound
recording of a live performance is made, the
performers142 and the person/company who
Performing arts
Common issues
paid for the recording are both regarded as
copyright owners in the recording. Unless this
situation is altered by a contract, the performer
will then have a right to make a copy of the
sound recording, perform it in public and
communicate it to the public.143
In practice these new rights may be varied by
contracts so they may not result in large gains
for performers. For instance, if a sound
recording of a live performance is made, and
the performers are employed, the employer is
the owner of the copyright unless this is altered
by agreement.144
The rights of performers in audio recordings
made before January 2005 are also now
different. The performer may co-own copyright
but they will not have any right to change the
way the original copyright owner deals with the
audio recording.
Performers who may have a copyright interest
in audio recordings of their live performances
should register with APRA and Phonographic
Performance Company of Australia.
Collaborative works
In many instances dramatic works have more
than one contributor. For example, a play is
often workshopped by writers, actors,
directors, dramaturges and others. Copyright
will protect the work of the author, who is
generally the playwright, but will not allocate
any rights to other people whose ideas were
drawn upon. If the collaborators want to share
in the copyright as joint owners, they will need
to make an agreement with the playwright.
The agreement should be in writing to avoid
any future misunderstandings.
Under the Copyright Act, a ‘work of joint
ownership’ refers to a work produced by the
collaboration of two or more creators, where
each creator’s collaboration is not separate
from the contribution of the other creator(s).
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The creator must contribute to the work by way
of effort, skill and labour. It is not enough to
inspire or make suggestions. Each creator in
a work of joint ownership owns copyright in the
resulting work. This means that each creator
must obtain the consent of the others before
exercising any of their rights under copyright.
Where more than one person collaborates and
contributes to a work, copyright may be held
by these people jointly, as tenants in common.
This means that if one of the contributing
creators dies, his or her interest passes to his
or her beneficiaries rather than to the other
collaborator(s). One collaborating creator
cannot authorise use of a jointly produced work
without the permission of the co-owner(s).
It is very important to understand the way
copyright law operates when working
collaboratively.
In the performing arts, there are often many
collaborators on a particular work. Writers,
performers, directors, dramaturges, designers
and others may all feel they have made a
substantial contribution to the dramatic work.
However, it must be remembered that copyright
is generally understood to belong to the
playwright or choreographer. To avoid any future
disagreements, the participating creators should
discuss copyright and proposed use of the
work prior to commencement of the project.
Where there is a dispute over the rights in a
work, legal actions other than copyright, such
as breach of confidence and passing-off laws,
may provide some protection from copying of
elements depicted in a work.
It is very important to understand the way that
copyright law operates when working with
Indigenous cultural material. The custodians of
cultural images are generally not recognised as
the legal copyright owners of an Indigenous
artwork that depicts a language group’s
cultural images. For example, if an Indigenous
playwright uses a story that belongs to his or her