Serena Armstrong is a Solicitor, Composer and former legal volunteer at Arts Law. She has recently joined Blake Dawson Waldron in their Intellectual Property Group. The first FM stereo broadcast of Serena Armstrong’s radiophonic work Illawarra Sea Stories was on 10 March, on ABC Classic FM.
Imagine the sounds of waves crashing onto sand, with people sharing stories of their early morning swims, punctuated by the sounds of flute and marimba. Commissioned last year by the ABC Radio through their Regional Production Fund, I created a twenty-five minute radiophonic composition Illawarra Sea Stories using my own original music, field recordings of waves and beach animals and interviews with people at the beach.
The work explored the importance of the beach to people in my community, on the NSW South Coast, and celebrated the beauty and power of the sea. The work follows the Illawarra coastline, from Austinmer, Bulli, Wollongong, Shellharbour and Kiama. The final movement in the work is a beautiful exploration of the significance of the ocean for Allan Carriage, an elder of the Wadi Wadi people.
Step One: Find your Performer
Finding the right performers for the piece was important – I needed people who played classical music and were familiar with contemporary techniques and improvisation. Through a process of asking friends and colleagues, and with recommendations from the (fantastic) staff at the Australian Music Centre, I found Christine Draeger (flute), Peter Hollo (cello) and Jeremy Barnett (marimba). Having found each other, the legal and artistic relationships between composer andperformer began.
Step Two: Discussing Expectations
The law of contract is a navigation tool that assists with creating agreements between parties in a project. Contract law requires that the parties have a 'meeting of the minds' – basically, that they are agreeing to the same thing. The clearest way to do this is to put an agreement in writing. If the agreement is important or complicated then it is best for both parties to sign the document.
If a dispute arises and the matter ends up in court, this signed document will be strong evidence of the content of the agreement between the parties (the contract). However, contracts exist in less formal modes. This can include unsigned documents, signed letters of confirmation, emails and conversations or verbal agreements (where an oral contract may be created). For further information on contracts see Arts Law information sheet Contracts: An Introduction.
Having found my performers, a series of conversations and emails ensued. I made certain everyone was available for the recording dates and I discussed the rehearsal process. No disputes arose out of this process, partly because of the goodwill between myself and the performers and partly because everyone was aware of their obligations.
Step Three: Putting the Contract in Writing
Upon being commissioned, I signed a contract with the ABC. This influenced the contracts I then entered into with the performers because I had to ensure that the rights I acquired from the performers were at least as wide as those I had to give the ABC.
I entered a simple written contract with the performers. This documented our obligations, addressed ownership of copyright in the recording, and contained a provision for including information about the performers in my publicity material. This provision detailed the exact manner in which the performers wanted to be credited and this kind of credit clause will be found in most performer’s releases or performer’s contracts.
Recent changes to the Copyright Act 1968 (Cth), implemented to meet obligations arising from Australia's Free Trade Agreement with the United States of America, have introduced an economic interest for live performers as co-owners in the copyright of a sound recording made of their live performance, however, there are some notable exceptions.
These new amendments to the performer’s rights in the Copyright Act 1968 (Cth) came into effect on 1 January 2005. The recent amendments also affect any sound recordings made of live performances which were made before 1 January 2005, and in that case the performer will have an interest in the sound recording. However, the original owner of copyright in the sound recording before 1 January 2005 will be able to continue exploiting the copyright as they did prior to 1 January 2005, as they expected to do when contracting the performers to perform for the sound recording.
In accordance with these amendments performers will also have moral rights in their live performances and audio recordings. The new moral rights amendments to the Copyright Act will not come into force until late 2005.
Since I recorded my music before the amendments came into force, my recording is regulated by the old law. However, even under the old Copyright Act, pre 1 January 2005, it was necessary to have the performer consent to the recording; otherwise the performer would be able to limit use of the recording as it would be an 'authorised recording'. The necessary consent for the recording process was included in my contract with the performers.
Step Four: The Recording
The recording process ran smoothly and we were able to keep to the timetable I had set. I had previously rehearsed the work with the performers and made changes at their suggestion. Most importantly for the performer, this was the time when they were paid. This was the end of the contractual relationship. The performers had rehearsed and performed the work (their part of the contract) and I had paid them (my part of the contract).
Step Five: The Finished Work
Having completed the recording, my collaboration with the performers was over. In some instances performers will be involved in the mixing process, but for this project the mix was done by the sound engineer and I was really happy with the finished work.
I felt the recording process was successful and that I had found the right performers for my work. I highly recommend entering contracts whenever working with other musicians or performers. From the perspective of the performer, contracts are useful for outlining the scope of the project and for establishing who owns the copyright in the project. Contracts can help avoid disputes and improve your working relationship, which is important if you hope to work with the same people on future projects.
A contract can be quite simple, provided it clearly sets out what is required of each party and what rights are being acquired or licensed. The use of timetables and emails to clarify issues is also helpful, but these are best used as precursors to the final contract, rather than to rectify an incomplete contract. I'm looking forward to working with the same performers again in the future … just as soon as I can get a moment away from my new contractual obligations as an employed solicitor in a large firm.