FREQUENTLY ASKED QUESTIONS
The solicitors at Arts Law answer well over a thousand questions a year on a huge range of issues from copyright to music contracts to insurance and trademarks. Here Arts Law staff Trudie Broderick, Suzanne Derry, Rebecca Laubi and Jo Teng look at some of our more frequently asked questions.
How do I get copyright?
You get it automatically! The moment you express your idea or concept in material form – 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. Any stories you hear about getting copyright by mailing your work to yourself, seeing a solicitor or registering with a government body are incorrect; once you've created something you don't have to do anything whatsoever. Your copyright will last for your entire life plus another seventy years.
Of course, in order to be protected by copyright your creation has to qualify for copyright protection in the first place. Your creation will qualify for protection if it:
• is original;
• is substantial – single words or titles are usually not enough to warrant copyright protection; and
• fits into one of the categories of works set out in the Copyright Act, namely being an artistic, literary, dramatic or musical work, a film, sound recording or broadcast.
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, © Jo Teng 2009) as it will put people on notice that the work is copyrighted, and who to.
Jo Teng, Arts Law Solicitor
I have a great idea for a story/movie, how do I protect it?
Copyright does not protect ideas, only their expression in some work such as a film, novel, or painting. Therefore, if you have a great idea for a TV series or book and you disclose that idea, say to a producer or publisher, you cannot rely on copyright law to prevent others from using your idea unless you have written for example a script or 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. Three conditions must be satisfied; the information:
i) must be of a 'confidential' nature,
ii) must have been communicated in circumstances that indicate that the recipient must respect its confidential nature; and
iii) must be used in an unauthorised manner which is detrimental to you.
If these requirements are met, you can prevent the use or obtain reparation if the unauthorised use has in fact occurred.
A more effective way to protect your ideas is to enter into a Confidentiality Agreement before you disclose your idea. Such an Agreement imposes an obligation on 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.
More information, including a sample Confidentiality Agreement, is available at www.artslaw.com.au/LegalInformation/ProtectingYourIdeas.asp.
Rebecca Laubi, Arts Law Senior Solicitor
I've seen some of my artwork displayed online without my permission, what can I do about it?
If you find some of your artwork being used or displayed on the internet without your authorisation, you should act as quickly as possible. If you ignore the infringement or delay any action, it may make it difficult for you to take action in future.
The first thing to do is get in contact with the person infringing your copyright. This should ideally be done in writing in a Letter of Demand advising them that you are the copyright owner, setting out your specific concerns about their use of your artwork, and demanding them to cease that use immediately. Keep in mind that a Letter of Demand is serious legal document so you should only make claims and arguments that you would be prepared to argue in court.
Once the letter is sent, you should wait a reasonable amount of time (usually 1 to 2 weeks) for the other party to respond. If you do not get a response in that time you should immediately seek legal advice either from Arts Law or a private lawyer.
If the other party does reply and accepts your demands, he or she will be bound by contract to comply. Alternatively, if the other party replies offering an alternative agreement that is acceptable to you, you may confirm the new agreement by giving them a signed reply. If the other party replies rejecting your demands you should seek legal advice either from Arts Law or a private lawyer about the strength of your claim and whether you need to commence court proceedings.
Arts Law has a sample Letter of Demand which may be found at http://artslaw.com.au/LegalInformation/CopyrightInfringmentAndLetterOfDemand/default.asp
Jo Teng, Arts Law Solicitor
I want to use a song in a film I'm making, what do I do?
Before using a song in a film, you should ensure that you have permission from the copyright owners in the song. You don’t want to use a song you have not sought permission for, and either be told at the last minute that the owners of copyright in the song don’t give you permission to use it, or worse, sue you for copyright infringement.
The copyright in the sound recording embodies the underlying composition (musical work) and possibly lyrics. A film maker will need permission to use the sound recording and the musical work and lyrics. This use is called synchronisation. Arts Law has a number of agreements for using music in film. When a filmmaker wants a composer/musician/band to create or adapt music for use in the filmmaker’s film, they could use our agreement titled Music Commission for Film. If the Producer wants to use existing music only, Arts Law’s sample Music Licence for Film Agreement will be more appropriate.
Suzanne Derry, Arts Law Solicitor
I want to organise an arts festival, how do I find out more?
When you organise a festival on your own or get together with a group of other people to organise a festival there are a lot of legal issues you will need to consider beyond the artistic and creative considerations. The business issues to consider prior when organising a festival include: the role of the festival and your objectives for the festival; which business structure will be 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 and payment of those assisting with the festival. The creative issues will include the treatment of Intellectual Property to be used in creating works for the festival and showing works. Arts Law has an info sheet called Organising a Festival and Organising a Festival Checklist.
Suzanne Derry, Arts Law Solicitor
I'm organising an exhibition of aboriginal art and heard there are cultural issues to think about, what are they?
The arts are key to cultural expression, identity, history and cultural heritage for Indigenous people. If you are exhibiting artworks created by Indigenous artists, you should be mindful of and respect Indigenous Cultural and Intellectual Property (ICIP). The term ‘ICIP’ refers to Indigenous peoples’ interests in their cultural heritage, which includes traditional knowledge and resources, ceremonies, symbols, languages, stories, songs, dances, designs and cultural expression.
Australian legislation doesn’t recognise ICIP as such. Copyright law protects the expression of ideas and moral rights of artists, but there is no law protecting ideas themselves or information, styles or methods, performances (eg. dances that have not yet been recorded) or communal rights to artworks.
Although not an exhaustive list, here are some of the ways you can respect ICIP:
• Ensure that the appropriate people and communities connected with the artworks are attributed and acknowledged;
• Consult with the artists about any customary obligations they may have in relation to a artwork and allow artists’ control over the way in which that work is expressed and used;
• Seek consent from the appropriate custodians about the use of artworks; and
• Pay for the use of an artist’s or community’s ICIP appropriately.
You can find further information about the protection of ICIP and ICIP protocols on Arts Law’s website.
Trudie, Arts Law Indigenous Legal Services Officer
