Frequently Asked Questions

Arts Law lawyers answer over two thousand requests for legal advice yearly on a broad range of issues from copyright to moral rights to contracts and name protection. Our FAQ’s are drawn from this experience.

  1. What is copyright?
  2. Does copyright protect everything I create?
  3. When is a creation capable of copyright protection?
  4. How do I get copyright?
  5. What is the purpose of the copyright symbol ©?
  6. Do I always own copyright in my creations?
  7. I have a great idea for a story/movie. How do I protect it?
  8. How can I protect the title of my song (or book or film)?
  9. Is it OK to copy 10% of someone else’s work without that person’s permission?
  10. What can I do if someone is using my work without my permission?
  11. Can I use images, music, articles or other materials from the internet?
  12. As a session musician, what rights do I have in a sound recording of my performance?
  13. What does “fair dealing” mean?
  14. I heard that I have moral rights in relation to my artwork. What does it mean?
  15. What can I do if a theatre company has not credited me as the author of the play I have written?
  16. What is ICIP?
  17. What are Creative Commons licences?
  18. The conditions of entry into a film competition say that I must show proof of all clearances. What does that mean?
  19. Will the subject of my photograph acquire rights in the photograph?
  20. What is chain of title?
  21. Can I take photographs or film in public places?
  22. I want to organise an arts festival, how do I find out more?

Copyright is a bundle of economic rights which give their owner the exclusive right to do certain things in relation to the object it protects.

Broadly, the exclusive rights of a copyright owner are the right to reproduce (or copy), publish and communicate one’s work to the public (including make available online or transmit electronically, for example by broadcasting, by email or on the internet), as well as perform and adapt one’s work. No one can exercise those rights in relation to copyright material without the copyright owner’s consent.

Copyright lasts for the life of the author and 70 years after the author’s death.

Copyright protects two types of subject-matters: works (artistic, literary, dramatic or musical works) and subject-matters other than works (films, sound recordings, broadcast and published editions).

If what you have created does not fall into any category of works or subject-matters other than works, copyright does not apply.

In order to qualify for protection a creation must meet three requirements:

  1. The work must fit into one of the categories of subject-matters set out in the Copyright Act.
  2. It must be substantial; Single words or titles are usually not enough to warrant copyright protection.
  3. It must be original, i.e. the result of the application of some skill and labour and not copied. The requirement of originality does not apply for subject-matters other than works.

If the work is capable of copyright protection, protection is automatic upon creation, without any need for registration. The moment you express your idea or concept in material form (eg. take a photo, shape it in clay, write it on a napkin with a toothpick dipped in soy sauce), copyright arises and your work will be protected. The symbol © is used to notify people that the work is protected by copyright.

As copyright protection is automatic upon creation, the presence or absence of the © copyright symbol does not affect the existence of copyright over a work. It is, however, a good idea to place the © symbol on a work along with your name (example, © Michelangelo 2010) to put people on notice that the work is copyrighted, and let them know who owns copyright in it.

If what you have created is capable of copyright protection, you will usually own copyright in it. In some situations, however, copyright might belong to someone else:

  • You have assigned (i.e. transferred) your copyright to another party in writing.
  • If you create copyright material as an employee in the course and within the scope of your employment, your employer owns copyright in that material. This exception applies only if you are acting as an employee, not if you are a contractor, a freelancer or a volunteer.
  • If you are paid to make a photograph, portrait or engraving for private or domestic purposes, the commissioner owns copyright in the work. The commissioner owns copyright in a film or a sound recording made against remuneration.
  • The Commonwealth or a State owns copyright in any subject-matter of copyright created by, or under the direction or control of the Commonwealth or the State.

The general principle as well as the exceptions regarding copyright ownership can be modified by agreement.

7. I have a great idea for a story/movie. How do I protect it?

Copyright does not protect ideas, only their material expression in some work such as a film, novel, or painting. If you have a great idea, for example for a movie, you cannot rely on copyright law to prevent others from using it unless you have expressed it in material form, for example as a synopsis expressing that idea.

You may, however, rely on the law of confidential information to protect your idea. Under the law of confidential information, an unauthorised person may not use (including disclose) your confidential information (including ideas) if you communicated that information in trust and confidence, for example by asking the recipient to keep it secret.

A more effective way to protect your ideas is to enter into a Confidentiality Agreement before you disclose your idea. The agreement binds the recipient of the confidential information not to use your idea and gives you the right to claim damages in the event of an unauthorised use.

See Arts Law’s information sheet on Protecting your ideas for more information, including a sample Confidentiality Deed.

8. How can I protect the title of my song (or book or film)?

Titles or names are not substantial enough to get copyright protection. Other areas of law such as trade marks, the law of passing-off, fair trading laws may, however, offer protection.

For more information see Arts Law information sheets: Trade marks and Business names, Trade Marks and Domain Names.

9. Is it OK to copy 10% of someone else’s work without that person’s permission?

Any copy, i.e. reproduction of a substantial part of copyright material requires the permission of the copyright owner. A part is substantial if it is an important, essential part of the material. The test is qualitative rather than quantitative. Less than 10% of a work can be essential if that part distils the essence of the work.

A consideration of quantity is only made in relation to the use of copyright material under some fair dealing provisions.

10. What can I do if someone is using my work without my permission?

The Copyright Act does not prohibit every unauthorised use of your work. There is a copyright infringement only if a substantial part of material protected by copyright is used without permission, and a defence or exception, such as a fair dealing exception, doesn’t apply.

If those conditions are met and you have grounds to believe that your copyright has been infringed, you should act immediately to protect your rights. A delay in action may affect your rights at a later time. You should contact the person or entity responsible for the infringement (the infringer), for example by sending a letter of demand  stating your concerns and outlining your copyright claim. Your claim can include a request to stop the infringing use as well as a claim for damages.

If the infringer does not respond to your demand within the time imparted, you can start legal proceedings to enforce your rights.

See Arts Law’s information sheet on Copyright infringement and letter of demand  for more information.

11. Can I use images, music, articles or other materials from the internet?

Material protected by copyright in the physical world is equally protected in the digital environment. Therefore, you cannot use images, music, articles or other materials from the internet without the permission of the copyright owner. Some copyright owners give a permission to the world at large to use their material in some form or other, for example under a Creative Commons licence. If this is not expressed or clearly implied, you must obtain permission from the copyright owner before using copyright material from the internet.

12. As a session musician, what rights do I have in a sound recording of my performance?

In general, session musicians (performers under the Copyright Act) co-own copyright in the sound recording of their live performance in equal shares with the person who owns the tape or device that the recording is made on. Co-ownership of copyright in the sound recording of your live performance means that you have a say in how that recording is used and are entitled to royalties or a part of any other income generated from the recording.

You may, however, not co-own copyright in the sound recording if you have performed in the course of your employment, or if you have signed a document assigning any and all rights in the recording of your performance, or if the sound recording has been commissioned.

As a performer, you also have moral rights in your performance.

For more information see Arts Law’s information sheet Performers’ rights and Music recording agreements guide.

13. What does “fair dealing” mean?

The “fair dealing” provisions in the Copyright Act serve to balance the rights and interests of the copyright owner and the general public by allowing members of the general public to use a substantial part of copyright material for certain approved purposes without having to obtain the copyright owner’s permission. Anyone who does use copyright material for any of the following purposes has a defence to a claim for copyright infringement if the use was fair:

  • research or study;
  • criticism or review;
  • reporting news;
  • giving professional legal advice; and
  • parody or satire.

Several factors should be considered to determine whether the dealing is fair, including its purpose and character, the nature of the work, the possibility of obtaining the work commercially, the effect of the dealing on the value of the work and the amount and substance copied relative to the whole.

“Fair use” is a concept from the United States. It is a much more flexible, open-ended concept and does not apply in Australia.

For more information see ‘Fair dealing’ information sheet on the Australian Copyright Council website.

14. I heard that I have moral rights in relation to my artwork. What does it mean?

Moral rights are personal rights that connect authors to their work. Moral rights arise automatically and last as long as copyright, i.e. 70 years after the death of the author. They are:

  • the right of attribution: your right to be identified and named as the author of your work;
  • the right against false attribution: your right to prevent others to be identified and named as the author of your work; and
  • the right of integrity: your right to ensure that your work is not subjected to derogatory treatment, i.e. in any manner harmful to your honour or reputation.

For more information see Arts Law’s information sheet on Moral right infringement and Letter of demand.

15. What can I do if a theatre company has not credited me as the author of the play I have written?

You have a moral right of attribution in relation to your play. If the theatre company fails to credit you it infringes this right, unless you have clearly consented not to be credited or it is reasonable, in the circumstances, for the theatre company not to credit you.

You should send the theatre company a letter of demand asking them to remedy the situation by crediting you. If they fail to do so, you can start legal proceedings to enforce your moral rights or refer the matter to mediation if this is appropriate.

See Arts Law’s information sheet on Moral rights infringement and letter of demand and on Mediation for more information.

16. What is ICIP?

Indigenous Cultural and Intellectual Property (ICIP) refers to Indigenous peoples’ interests in their cultural heritage. This includes songs, music, dances, stories, ceremonies, symbols, languages and designs. ICIP is a communal rather than an individual interest. An Indigenous creator who uses ICIP in artwork may have duties and obligations to his/her community or tribal group in respect of that ICIP and the way it is used. ICIP is not recognised under Australian law but Arts Law believes it is important to acknowledge and respect it.

Permission should be obtained from the traditional owners of the Indigenous heritage before using traditional or culturally significant Indigenous objects, knowledge or works. The traditional owners should be consulted on how the community should be attributed, and given the opportunity to approve the way in which the material is used. In some circumstances it may be appropriate to use a notice of custodial interest.

Protocols have been developed which provide guidelines for appropriate conduct when interacting with Indigenous people and their communities. Protocols are made in good faith and encourage mutual respect. They are not legally binding, unless inserted into a contract making the parties bound by the protocols.

For more information see ICIP information sheet and comic in our Artists in the Black section.

17. What are Creative Commons licences?

Creative Commons is a non exclusive licensing system allowing creators to grant others the rights to use their work as long as certain conditions are met. Creative Commons licences are irrevocable but can be a useful tool in marketing work. Whether this type of licence is suited to your practice will depend on the nature of your work and your objectives as an artist. As with any legal document, you should seek legal advice before entering into a creative commons licence.

There are four main types of Creative Commons  licences, which all require attribution of authorship:

  1. by Attribution: you allow any use of your work;
  2. No Derivative Works: your work may be used except in a subsequent derivative work;
  3. Non-Commercial: you allow any use of your work except a commercial one; and
  4. Share Alike: you allow any use of your work provided any derivate work is made available under the same licence.

Arts Law’s Creative Commons information sheet is currently being updated and will be available soon. For more information visit Creative Commons Australia.

18. The conditions of entry into a film competition say that I must show proof of all clearances. What does that mean?

A film usually incorporates several types of material protected by copyright, such as a script, music, artworks, etc. The expression ‘clearance’ refers to any permission the producer should seek in order to use those materials if others own copyright in them. Many film festivals, funding bodies and distributors require clearances as part of the ‘chain of title‘.

In addition to clearing rights in copyright material you intend to use in your film, you might need clearance for any interview used in the film, from people working on the film and about filming in certain locations.

You should ensure that the person or organisation giving the clearance actually owns the copyright or has the relevant rights to be cleared and the authority to clear them.

You should get all clearances in writing. This will help you prove you have received them.

For more information see Arts Law’s publication Short film competitions: a producers guide, and the suite of film agreements which include:

19. Will the subject of my photograph acquire rights in the photograph?

A subject of a photograph does not acquire rights (including copyright) in your photograph. In some circumstances it is prudent to ask the people you photograph to sign a Photographer’s Model’s Release . This document will protect you by evidencing the agreement you and the subject entered into when the photographs were taken.

See Arts Law’s sample Photographer’s Model Release for more information.

20. What is chain of title?

In the film industry, the expression “chain of title” is generally used to refer to the rights held by the producer to make and distribute the film, and specifically to the documents that give the production company the rights in any underlying material  to make the film.

For example, if the script for a film is based on a novel, the owner of the copyright in the novel must agree to its use. The producer (often a company) will usually require an assignment of the relevant rights in the underlying novel as well as the content created by script editors, anyone who works on the script, and individual producers or directors. Producers will require these documents before approaching investors or distributors with the film.

For more information see Arts Law’s publication Short film competitions: a producers guide, and the suite of film agreements which include:

21. Can I take photographs or film in public places?

There is no right of privacy in Australia that enables people to prevent you from taking their photograph in public. Photographers can take photographs in public places but some councils impose permits on people taking photographs in well known locations, particularly if the photographs are for a commercial purpose.

Most councils will require you to have a permit to have filming activities on council land, as will some authorities controlling other public space. For example, the Royal Botanical Gardens and Domain Trust requires you to have a permit to film in Botanic Gardens and Domain in Sydney NSW. Contact the council directly for information if in doubt whether it imposes restrictions.

Photographing or filming in public space should be distinguished from photographing or filming at public events held on private property. In that situation, you are advised to obtain the consent from the owner and occupier of the property in the form of a release before taking photographs or filming.

For more information see Arts Law’s information sheet Street Photographers’ Rights and the sample agreement Film Location Release.

22. I want to organise an arts festival, how do I find out more?

When you organise a festival you need to consider the business and legal issues as well as artistic and creative considerations. The business and legal issues to consider include which business structure is most appropriate; how the budget will work and how money will be raised for the festival; who bears responsibility for liability in the event someone is injured or equipment is damaged; payment of those assisting with the festival and the treatment of any intellectual property related to the festival.

See Arts Law’s information sheet Organising a festival and the Organising a festival checklist for more information.